Exhibit 10.28
FIRST AMENDMENT OF
MARKETING EXPENSE REIMBURSEMENT AGREEMENT
This First Amendment of Marketing Expense Reimbursement
Agreement (the "Amendment") is made and entered into as of this 1st day
of April, 2001, by and between Union Bank and Trust Company, a Nebraska
bank and trust company, acting in its own right and in its capacity as
trustee ("Union Bank") and NELnet, Inc., a Nevada corporation f/k/a
National Education Loan Network, Inc. ("NELnet").
WHEREAS, the parties hereto entered into that certain
Marketing Expense Reimbursement Agreement dated as of January 1, 1999
(the "Agreement"), and the parties hereto wish to amend the Agreement
under the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises
and the mutual covenants herein contained, the parties hereto agree as
follows:
1. Definitions. Unless otherwise expressly stated
herein, capitalized terms in this Amendment shall have the same
meanings given to them in the Agreement.
2. Reduction of Services to Be Provided by Union Bank.
Notwithstanding provisions to the contrary contained in Section 1 of
the Agreement, Union Bank may, at its option, and in its sole
discretion, reduce its Student Loan and Alternative Loan marketing and
origination efforts as compared to historic levels of such efforts by
reducing its marketing personnel commitment. Union Bank agrees that if
it reduces its marketing personnel commitment, it shall enable NELnet
to offer employment to such personnel and, at NELnet's reasonable
request, continue such personnel as dual employees of NELnet and Union
Bank provided, however, that such personnel shall not be entitled to
any salary paid by Union Bank or Union Bank employee benefits. NELnet
shall provide nonexclusive marketing and promotional services with
respect to Student Loans originations under the Union Bank brand name
in the states of Nebraska, Kansas, Iowa and portions of the western
region of the United States where the Union Bank brand name is
currently used to market Student Loans (including Arizona, California,
Oregon, Washington and Hawaii), at least at historic levels previously
furnished by Union Bank itself in those states, or as the parties may
otherwise mutually agree; provided, however, that NELnet shall not
provide such services with respect to Student Loans to borrowers (other
than medical students) attending University of Phoenix or Loma Xxxxx
College unless Union Bank ceases origination efforts at such
educational institutions or otherwise consents to such services being
provided by NELnet.
3. Reimbursement of Marketing Costs. Section 3 of the
Agreement shall be deleted in its entirely and the following
substituted in lieu thereof;
"Marketing Costs" as defined herein shall mean all direct
costs and expenses during the term of this Agreement, in
connection with or arising from marketing activities by Union
Bank and NELnet relating to Student Loans, excluding any
administrative or overhead costs and expenses associated
therewith, and, following April 1, 2001, excluding any costs
for marketing representatives and related expenses arising
from
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Student Loan activities in the northeastern region of the
United States (including, without limitation, New York, New
Jersey, Connecticut, Pennsylvania, Vermont, New Hampshire and
Maine) as well as the states of Illinois, South Dakota,
Minnesota, Texas and Colorado. Marketing Costs incurred with
respect to the states of Nebraska, Kansas, Iowa and portions
of the western region of the United States where the brand
name of Union Bank is currently used to market Student Loans
(including Arizona, California, Oregon, Washington and Hawaii)
shall be included in the computation of Marketing Costs.
NELnet and Union Bank shall each be responsible for their
respective pro rata share of Marketing Costs during each
calendar year during the term of this Agreement, and each
party's respective share shall be calculated based upon the
following formulas:
A. NELnet's annual = All annual Marketing Costs X ($120 million - 75% of annual
share of Union Bank originations in excess of $240 Million)/
Marketing Costs All Union Bank Student Loan Originations for the year
B. Union Bank's share of Marketing Costs = all Marketing Costs for the
year minus NELnet's share of Marketing Costs as calculated pursuant to
(A) above.
Union Bank hereby transfers all of its rights and interest in certain
software products utilized in connection with Student Loans, including
without limitation "EnConcert," "Notes on Student Loans," "Notes on
Credit," "Notes on Investments," "Union Station," and "Student
Exchange" (collectively, the "Student Loan Software"). Union Bank shall
take all reasonable acts necessary to effectuate such transfer as
reasonably requested by NELnet. NELnet shall assume responsibility for
any future enhancements or development of the Student Loan Software.
NELnet shall reimburse Union Bank and its affiliates for any expense in
connection with Alternative Loans originated after January 1, 2000. It
is acknowledged that NELnet is providing substantial consideration by
assuming a greater share of Marketing Expenses such as salary expenses
related to hiring of marketing personnel, marketing expenses related to
Alternative Loans, software development expenses related to EnConcert
and other intellectual property development, and access granted by
NELnet to Union Bank to all future enhancements to the EnConcert
software or modifications thereof.
4. Origination Fees. Union Bank shall amend origination
services agreements with NELnet or any affiliate thereof in order to
adjust origination fees to the market rate of $25 per Student Loan,
effective April 1, 2001,
5. Effect of Amendment. Unless expressly modified or
amended by this Amendment, all terms and provision contained in the
Agreement shall remain in full force and effect without modification.
Union Bank and Trust Company NELnet, Inc.
By: /s/ Xxxx Xxxxxx By: /s/ Xxx Xxxx
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Title: CEO Title: President
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