UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
 WASHINGTON, D.C. 20549
FORM 10-K
(Mark One)

|X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2003
Or
|_| TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to .
COMMISSION FILE NUMBER 001-31924
NELNET, INC.

(Exact name of Registrant as specified in its charter)

                NEBRASKA                                 84-0748903
        (State of Incorporation)            (I.R.S. Employer Identification No.)
    121 SOUTH 13TH STREET, SUITE 201                       68508
            LINCOLN, NEBRASKA                            (Zip Code)
(Address of Principal Executive Offices)	

Registrant's telephone number, including area code: (402) 458-2370
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
TITLE OF EACH CLASS
Class A Common Stock, Par Value $0.01 per Share
NAME OF EACH EXCHANGE ON WHICH REGISTERED:
New York Stock Exchange
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
 None
Indicate by check mark whether the Registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of Registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [ ]
Indicate by check mark whether the Registrant is an accelerated filer.

Yes [ ] No [X]
The aggregate market value of the Registrant's voting common stock held by non-affiliates of the Registrant (assuming for the purposes of this calculation only, that the Registrant's directors, executive officers and greater than 10% shareholders are affiliates of the Registrant), based upon the closing sale price of the Registrant's common stock on February 13, 2004 was $418,219,512.
As of February 13, 2004, there were 39,601,834 and 14,023,454 shares of Class A Common Stock and Class B Common Stock, par value $0.01 per share, outstanding respectively.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant's definitive Proxy Statement to be filed for its 2004 Annual Meeting of Stockholders scheduled to be held May 27, 2004 are incorporated by reference into Part III of this Form 10-K.
This report contains forward-looking statements and information that are based on management's current expectations as of the date of this document. When used in this report, the words "anticipate," "believe," "estimate," "intend" and "expect" and similar expressions are intended to identify forward-looking statements. These forward-looking statements are subject to risks, uncertainties, assumptions and other factors that may cause the actual results to be materially different from those reflected in such forward-looking statements. These factors include, among others, changes in the terms of student loans and the educational credit marketplace arising from the implementation of applicable laws and regulations and from changes in these laws and regulations, which may reduce the volume, average term and costs of yields on student loans under the Federal Family Education Loan Program ("FFELP" or "FFEL Program") or result in loans being originated or refinanced under non-FFELP programs or may affect the terms upon which banks and others agree to sell FFELP loans to us. We could also be affected by changes in the demand for educational financing or in financing preferences of lenders, educational institutions, students and their families; changes in the general interest rate environment and in the securitization markets for education loans, which may increase the costs or limit the availability of financings necessary to initiate, purchase or carry education loans; losses from loan defaults; and changes in prepayment rates and credit spreads. References to "we," "us," "our" and "the Company" refer to Nelnet, Inc. and its subsidiaries.
PART I.
ITEM 1. BUSINESS
Overview
We are a vertically integrated education finance company, with over $11.9 billion in total assets as of December 31, 2003, making us one of the leading education finance companies in the country. We are focused on providing quality products and services to participants in the education finance process. Headquartered in Lincoln, Nebraska, we originate, hold and service student loans, principally loans originated under the FFEL Program. We, together with our branding partners, originated and acquired approximately $4.3 billion of student loans in 2003, which includes $1.2 billion of existing loans we consolidated from our own loan portfolio, making us a leading originator and acquirer of student loans. A detailed description of the FFEL Program appears in Appendix A to this annual report on Form 10-K (the "Report").
We offer a broad range of financial services and technology-based products, including student loan origination and lending, student loan and guarantee servicing and a suite of software solutions. Our products are designed to simplify the student loan process by automating financial aid delivery, loan processing and funds disbursement. Our infrastructure, technological expertise and breadth of product and service offerings connect the key constituents of the student loan process, including lenders, financial aid officers, guaranty agencies, governmental agencies, student and parent borrowers, servicers and the capital markets, thereby streamlining the education finance process.
Our business is comprised of four primary product and service offerings:
o Asset management, including student loan originations and acquisitions. We provide student loan sales, marketing, originations, acquisition and portfolio management. We own a large portfolio of student loan assets through a series of education lending subsidiaries. As of December 31, 2003, our student loan portfolio was $10.3 billion, consisting of over 99% of FFELP loans and less than 1% of private loans. We generate loans owned in special purpose lending facilities through direct origination or through acquisition of loans. We generate the majority of our earnings from the spread between the yield we earn on our student loan portfolio and the cost of funding these loans. We also provide marketing and sales support and managerial and administrative support related to our asset generation activities, as well as those performed for our branding partners or other lenders who sell such loans.
o Student loan servicing. We service our student loan portfolio and the portfolios of third parties. As of December 31, 2003, we serviced or provided complete outsourcing of servicing activities for more than $18.7 billion in student loans, including $9.2 billion of loans in our own portfolio. The servicing activities include loan origination activities, application processing, borrower updates, payment processing, claim processing and due diligence procedures. These activities are performed internally for our own portfolio and generate fee revenue when performed for third-party clients.
o Guarantee servicing. We provide servicing support to guaranty agencies, which includes system software, hardware and telecommunication support, borrower and loan updates, default aversion tracking services, claim processing services and post-default collection services. As of December 31, 2003, we provided servicing support to agencies that guarantee more than $20 billion of FFELP loans. These activities generate fee revenue in addition to expanding our relationship with other participants in the education finance sector.
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o Servicing software. We provide student loan servicing software internally and to third-party student loan holders and servicers. As of December 31, 2003, our software was used to service $46 billion in student loans, which included $27 billion serviced by third parties using our software. We earn software license and maintenance fees annually from third-party clients for use of this software. We also provide computer consulting, custom software applications and customer service support.
In accordance with accounting principles generally accepted in the United States, our asset management and student loan servicing offerings constitute reportable operating segments. Our guarantee servicing and servicing software offerings are operating segments that do not meet the quantitative thresholds, and, therefore, are included as other segments that do not meet the reportable segment criteria. In 2003, our asset management, student loan servicing and other segments generated 61.8%, 27.3% and 10.9%, respectively, of our total segment revenues (excluding intersegment revenue) and 72.7%, 23.3% and 4.0%, respectively, of our segment net income. For additional information, see note 18 of the notes to the consolidated financial statements.
Our earnings and earnings growth are directly affected by the size of our portfolio of student loans, the interest rate characteristics of our portfolio, the costs associated with financing and managing our portfolio and the costs associated with origination and acquisition of the student loans in the portfolio. We generate the majority of our earnings from the spread between the yield we receive on our student loan portfolio and the cost of funding these loans. While the spread may vary due to fluctuations in interest rates, special allowance payments from the federal government ensure that we receive a minimum yield on our student loans, so long as certain requirements are met. We also earn fees from student loan and guarantee servicing and licensing fees from our servicing software. Earnings growth is primarily driven by the growth in the student loan portfolio and growth in our fee-based product and service offerings, coupled with cost-effective financing and expense management. In 2003, we generated net interest income of $178.6 million, total other income, including loan servicing income, of $117.5 million and net income of $27.1 million. Our earnings in 2003 included $12.8 million of variable-rate floor income and a mark-to-market loss on derivative instruments of $1.2 million. Our operating expenses in 2003 included $12.8 million of amortization of intangible assets resulting from acquisitions prior to 2003, of which $6.7 million is not deductible for federal income tax purposes.
As of December 31, 2003, over 99% of the student loans in our portfolio were FFELP loans, as opposed to the less than 1% of private loans in our portfolio that did not carry federal guarantees. At least 98% of the principal and accrued interest of FFELP loans is guaranteed by the federal government, provided that we meet certain procedures and standards specified in the Higher Education Act. We believe we are in material compliance with the procedures and standards as required in the Higher Education Act. FFELP loans originated prior to October 1, 1993 carry a 100% guarantee on the principal amount and accrued interest, and FFELP loans originated after that date are guaranteed for 98% of the principal amount and accrued interest. As a result, holders of FFELP loan portfolios historically have experienced minimal losses net of the guarantee. Our net loan losses on FFELP loans in 2003 were approximately $3.5 million, or less than 0.04% of our average FFELP loan portfolio.
Our History
We have a 26-year history dating back to the formation of UNIPAC Service Corporation in 1978. UNIPAC was formed to service loans for Union Bank & Trust Company, or Union Bank, of Lincoln, Nebraska and Packers Service Corporation of Omaha, Nebraska. It grew its third-party student loan servicing business to approximately $9.7 billion in loans in 2000, when it was merged with Nelnet. Our immediate predecessor was formed in 1996 as a student loan acquisition company, and, prior to the merger, it had built its student loan portfolio through a series of spot portfolio acquisitions and later through student loan company acquisitions.
In 2000, we decided to create a vertically integrated platform that would be able to compete in each sector of the student loan industry. Over the past four years we have acquired several education finance services companies, including a student loan secondary market company. In addition, in August 2003, we acquired a securities company that provides us with broker-dealer services in connection with our asset-backed securitizations and in January 2004, we acquired a 50% ownership interest in a collection firm specializing in past due debts for higher education companies.
We executed these acquisitions to complete our effort to vertically integrate and add geographic diversity and operational expertise to our education finance platform. Historically, we have successfully integrated these companies into the Nelnet platform, and they have increased our profitability as a result. We now believe that we have all of the key components of our vertical integration strategy. Going forward, we intend to focus principally on organic growth while opportunistically making company and student loan portfolio acquisitions.
Product and Service Offerings
Asset management, including student loan originations and acquisitions
Our asset management business, including student loan originations and acquisitions, is our largest product and service offering and drives the majority of our earnings. When we originate FFELP loans on our own behalf or when we acquire FFELP loans from others,
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we engage one or more "eligible lenders," as defined in the Higher Education Act, to act as our trustees to hold title to all such originated and acquired FFELP loans. These eligible lender trustees hold the legal title to our FFELP loans, and we hold 100% of the beneficial interests in those loans. We originated and acquired $4.3 billion in student loans in 2003, which includes $1.2 billion of existing loans we consolidated from our own loan portfolio. We often originate loans using the Nelnet brand name but, in many cases, we use well-known, geographically strategic brand names of our branding partners, such as SunTrust Bank, Education Solutions, Inc. and Union Bank. This strategy gives us the flexibility to market the brand with the best recognition in a given region or at a given college or university. We originate and acquire loans through our direct channel, branding partner channel, forward flow channel and through spot purchases.
Through our direct channel, we originate student loans in one of our brand names directly to students and parent borrowers. Of the $4.3 billion of student loans we originated and acquired in 2003, $2.3 billion were loans consolidated through our direct channel, $1.2 billion of which were existing loans we consolidated from our own loan portfolio. We originated, including loans originated through consolidation, 58.9% of the loans added to our student loan portfolio in 2003. Excluding loans we consolidated from our own loan portfolio, we originated 43.4% of the loans added to our student loan portfolio in 2003. Student loans that we originate through our direct channel are our most profitable student loans because they typically cost us less than loans acquired through our other channels and they remain in our portfolio for a longer period of time. Once a student's loans have entered the grace or repayment period, they are eligible to be consolidated if they meet certain requirements. Loan consolidation allows borrowers to make one payment per month and extend the loan repayment period. In addition to these attributes, in recent years, historically low interest rates have contributed to demand for consolidation loans. To meet this demand, we have developed an extensive loan consolidation department to serve borrowers with loans in our portfolio as well as borrowers whose loans are held by other lenders.
Through our branding partner channel, we acquire student loans from lenders to whom we provide marketing and origination services established through our various contracts with FFELP lenders. In 2003, 19.0% of our loan acquisitions were attributable to this channel. Excluding loans we consolidated from our own loan portfolio, 26.2% of our loan acquisitions were attributable to this channel in 2003. We frequently act as exclusive marketing agent for some branding partners in specified geographic areas. We ordinarily purchase loans originated by those branding partners pursuant to a commitment to purchase loans at a premium above par, shortly following full disbursement of the loans. We ordinarily retain rights to acquire loans subsequently made to the same borrowers, or serial loans. Some branding partners, however, retain rights to portions of their loan originations. Origination and servicing of loans made by branding partners is performed by us during the lives of loan origination and servicing agreements so that loans do not need to be changed to a different servicer upon purchase by us. The marketing agreements and commitments to purchase loans are ordinarily for the same term, which are commonly three to five years in duration. These agreements ordinarily contain provisions for automatic renewal for successive terms, subject to termination by notice at the end of a term or early termination for breach. We are generally obligated to purchase all of the loans originated by our branding partners under these commitments, although our branding partners are not obligated to provide us with a minimum amount of loans.
In addition to the branding partner channel, we have established a forward flow channel for acquiring FFELP loans from lenders to whom we provide origination services, but provide no marketing services, or who agree to sell loans to us under forward sale commitments. In 2003, 14.2% of our loan acquisitions were attributable to this channel. Excluding loans we consolidated from our own loan portfolio, 19.5% of our loan acquisitions were attributable to this channel in 2003. These forward flow commitments frequently obligate the lender to sell all loans made by the applicable lender, but in other instances are limited to sales of loans originated in certain specific geographic regions or exclude loans that are otherwise committed for sale to third parties. We are generally obligated to purchase loans subject to forward flow commitments shortly following full disbursement, although our forward flow lenders are not obligated to provide us with a minimum amount of loans. We typically retain rights to purchase serial loans. The loans subject to purchase are generally subject to a servicing agreement with us for the life of each such loan. Such forward flow commitments ordinarily are for terms of three to five years in duration.
In addition, we acquire student loans through spot purchases, which accounted for 7.9% of the student loans that we originated and acquired in 2003. Excluding loans we consolidated from our own loan portfolio, 10.9% of our loan acquisitions were attributable to this channel in 2003.
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As of December 31, 2003, the characteristics of our student loan portfolio, exclusive of the unamortized cost of acquisition, were as described below.
Composition of Student Loan Portfolio
 (As of December 31, 2003)

(loan balances in thousands)

  Loans outstanding ............................................ $10,314,874
  FFELP loans:
       Stafford loans ..........................................  $4,901,289
       PLUS/SLS loans (a) ......................................    $249,217
       Consolidation loans .....................................  $5,073,081
  Private loans ................................................     $91,287
  Number of borrowers ..........................................     800,520
  Average outstanding principal balance per borrower ...........     $12,885
  Number of loans ..............................................   2,125,027
  Average outstanding principal balance per loan ...............      $4,854
  Weighted average annual interest rate ........................        4.50%
  Weighted average remaining term (months) .....................         180
-------
  (a)    Supplemental  Loans  for  Students,  or  SLS,  are the  predecessor  to
         unsubsidized Stafford loans.	

Our capital markets and portfolio administration departments provide financing options to fund our loan portfolio. As of December 31, 2003, we had a warehousing capacity of $2.8 billion through 364-day commercial paper conduits. These transactions provide short-term asset financing for the purchase of student loan portfolios. The financings are constructed to offer short-term capital and are annually renewable.
Short-term warehousing allows us to buy and manage student loans prior to transferring them into more permanent financing arrangements. Our large warehousing capacity allows us to pool student loans in order to maximize loan portfolio characteristics for efficient financing and to properly time market conditions. Generally, loans that best fit long-term financing vehicles are selected to be transferred into one of our long-term securitizations. We hold loans in short-term warehousing for a period of time ranging from approximately one month to as many as 18 months, at which point these loans are transferred into one of our long-term securitizations. Because transferring those loans to a long-term securitization includes certain fixed administrative costs, we maximize our economies of scale by executing large transactions that routinely price in line with our largest competitor. We are a frequent issuer of asset-backed securities and benefit from a high level of name recognition by the asset-backed investment community.
We had approximately $9.3 billion in asset-backed securities issued and outstanding as of December 31, 2003, including auction-rate notes whose interest rates are reset periodically. These asset-backed securities allow us to finance student loan assets over multiple years, thereby reducing the renewal risk associated with warehouse vehicles.
We rely upon securitization vehicles as our most significant source of funding for student loans on a long-term basis. The net cash flow we receive from the securitized student loans generally represents the excess amounts, if any, generated by the underlying student loans over the amounts required to be paid to the bondholders, after deducting servicing fees and any other expenses relating to the securitizations. In addition, some of the residual interests in these securitizations may have been pledged to secure additional bond obligations. Our rights to cash flow from securitized student loans are subordinate to bondholder interests and may fail to generate any cash flow beyond what is due to pay bondholders.
Our original securitization transactions began in 1996, utilizing a master trust structure, and were privately placed auction-rate note securitizations. As the size and volume of our securitizations increased, we began publicly offering asset-backed securities under shelf registration statements, using special purpose entities. When we deemed long-term interest rates attractive, we issued fixed-rate debt backed by cash flows from FFELP loans with fixed-rate floors, which effectively match the funding of our assets and liabilities. In 2002, we began accessing the term asset-backed securities market by issuing amortizing multi-tranche LIBOR-indexed variable-rate debt securities. We have utilized financial guarantees from monoline insurers and senior/subordinate structures to assist in obtaining "AAA" ratings on our senior securitized debt in addition to cash reserves and excess spread to assist in obtaining "A" and "AA" ratings on our subordinated debt. We intend to continue to issue auction rate notes, variable-rate and fixed-rate term asset-backed securities and debt securities through other asset funding vehicles in order to minimize our cost of funds and give us the most flexibility to optimize the return on our student loan assets.
We acquired UFS Securities LLC, or UFS Securities, in August 2003 in order to enhance our access to broker-dealer services related to our debt securities offerings. UFS Securities fits into our overall business strategy by effectively decreasing our costs associated with accessing the asset-backed securitization market. UFS Securities sells certain tranches of our auction rate securities in co-broker-dealer arrangements with certain third-party broker-dealers. Since UFS Securities has become our wholly owned subsidiary, the fees that it receives in conjunction with sales of our securities reduce our overall costs of issuance with respect to our auction rate securities. We intend to continue other business activities of UFS Securities, including providing consulting services
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to financial institutions and broker-dealers, serving as a distributor of accounts with the College Savings Plan of Nebraska and acting as an underwriter for mutual funds. The business activities of UFS Securities do not constitute a material part of our business.
Student Loan Servicing
We specialize in the servicing of FFELP and private student loans. Our servicing division offers lenders across the country a complete line of education loan services, including recovery of non-guaranteed loans, application processing, disbursement of funds, customer service, account maintenance, federal reporting and billing collections, payment processing, default aversion and claim filing. Our student loan and guarantee servicing divisions each uses a proprietary system to manage the servicing process. These systems provide for automated compliance with most Higher Education Act regulations.
Our quality and experience in student loan servicing is evident in the historical performance of our entire pool of loan assets, which enjoys a very low initial claim rejection rate due to servicer error, which is the percent of claims submitted by us or our servicing customers rejected by a guaranty agency due to servicer error. In 2003, the initial claim rejection rate due to servicer error was approximately 0.33% of all claims filed by us or our servicing customers. The substantial majority of these initial claim rejections are cured, meaning a payment or the borrower's promise to pay has been received. In 2003, the aggregate of our losses and those of our servicing customers from rejected loans and interest denials were less than $500,000, or less than 0.01% of our average servicing portfolio.
As we expand our student loan origination and acquisition activities, we may face increased competition with some of our servicing customers. In the past, including in one case recently, servicing customers have terminated their servicing relationships with us, and we could in the future lose more servicing customers as a result. However, due to our life-of-loan servicing agreements, we do not expect this loss and potential loss of customers to have a material adverse effect on our results of operations for the foreseeable future.
Guarantee Servicing
We provide servicing support for guaranty agencies, which are the organizations that serve as the intermediary between the federal government and the lender of FFELP loans and who are responsible for paying the claims made on defaulted loans. One of our guarantee servicing customers notified us of its intention not to renew its servicing contract. The loss of this customer is not expected to have a material effect on our results of operations.
Servicing Software
Our servicing software is focused on providing technology solutions to education finance issues. Our subsidiaries, Idaho Financial Associates, Inc. and Charter Account Systems, Inc. provide student loan software and support for entities involved in the asset management aspects of the student loan arena. In addition, 5280 Solutions, Inc., of which we own a 50% voting interest, provides customized software solutions to help in the administration and management of the student loan process.
Software Products
Our software products are designed to provide us loan origination access to colleges and universities, while simplifying the financial aid process. We also license our servicing software products to third-party student loan holders and servicers. Our software products include the following:
o Nteract -- an Internet-based, open-architecture student loan origination and disbursement management system. Nteract provides a complete solution for processing FFELP and private student loan certifications, initiating change transactions, and can serve as a comprehensive loan delivery system. Nteract operates in a real-time environment and can be accessed for online inquiry at any time 24 hours a day, seven days a week. Nteract is used with our student loan origination, acquisition and portfolio management offering and our student loan servicing product offering.
o Ntrust -- a centralized disbursement service. Ntrust is a comprehensive, open-architecture solution for receiving FFELP and private student loan funds, reports and the student loan industry's standardized data files. Ntrust provides a single point of contact for the college or university's entire electronic loan processing needs and provides real-time loan disbursement adjustment processing. Ntrust is used by our student loan origination, acquisition and portfolio management offering and our student loan servicing product offering.
o Ngenius -- the origination engine that supports the Ntrust and Nteract products. Used for loan origination initiatives, Ngenius is a table-driven origination platform which provides flexibility and scalability. The system interacts with multiple guaranty agencies and can support an instant guarantee. Ngenius is used by our student loan origination, acquisition and portfolio
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management offering and our student loan servicing product offering.
o Nservice -- our servicing engine for FFELP and private loans. The Nservice system is a profile driven system, allowing for easy implementation of most regulatory changes and rapid development of custom loan programs. Software development is aided by the use of high-level application development tools to speed delivery of enhancements. The Nservice system provides for automated compliance with most Higher Education Act regulations. Nservice also facilitates the servicing of FFELP and private loans into a single, integrated servicing environment, improving service to schools, borrowers and lenders. Nservice is used by our student loan servicing product offering, and the software is also licensed to third-party student loan holders and servicers by our servicing software product offering.
In addition to the products described above, we offer a variety of borrower services to assist students and parents in navigating the financial aid process. These services include our unique @theU higher education resource, which provides free information on college planning and financial aid, paired with a loyalty program to allow members to earn credit toward reducing the balance of a student loan regardless of lender or servicer. Another product, Nelnet Notes, provides online assistance to help borrowers better understand the financial aid process, as well as broader money management issues.
Our software products, including Web site content and functionality, have been primarily developed and maintained using internal business and technical resources. External software consultants are utilized on selected occasions when circumstances require specific technical knowledge or experience. We capitalize software costs under the provisions of Statement of Position 98-1, Accounting for the Costs of Computer Software Developed or Obtained for Internal Use. Material software developments or enhancements that are considered to have useful lives of greater than one year are capitalized and amortized over their useful lives. In addition, purchased software is capitalized and amortized over the estimated useful life. Costs related to maintaining our existing software including the costs of programming are expensed as incurred.
Costs associated with research and development related to the development of computer software to be sold are expensed when incurred in accordance with Statement of Financial Accounting Standards ("SFAS") No. 86, Accounting for the Cost of Computer Software to be Sold, Leased or Otherwise Marketed.
Interest Rate Risk Management
Since we generate the majority of our earnings from the spread between the yield we receive on our portfolio of student loans and the cost of financing these loans, the interest rate sensitivity of our balance sheet could have a material effect on our operations. Although the majority of our student loans have variable-rate characteristics in interest rate environments when the special allowance payment formula exceeds the borrower rate, some of our student loans, primarily consolidation loans, have fixed-rate characteristics to them.
We attempt to match the interest rate characteristics of pools of loan assets with debt instruments of substantially similar characteristics, particularly in rising interest rate markets. Due to the variability in duration of our assets and varying market conditions, we do not attempt to perfectly match the interest rate characteristics of the entire loan portfolio with the underlying debt instruments. To date, we have financed the majority of our student loan portfolio with variable-rate debt.
In the current low interest rate environment, our FFELP loan portfolio is yielding excess income due to the reduction in the interest rates on the variable-rate liabilities financing student loans at a fixed borrower rate. In higher interest rate environments, where the interest rate rises above the borrower rate and fixed-rate loans become variable, the impact of the rate fluctuations is substantially reduced. We have employed various derivative instruments to help manage our interest rate risk. We periodically review mismatched interest rate characteristics of our portfolios of student loans and those of our underlying debt instruments in order to evaluate utilization of interest rate swaps and other derivative instruments as part of our overall risk management strategy. As a result of our interest rate management activities, we believe we have reduced the volatility and effects of a rising interest rate environment. For further information, see "Management's Discussion and Analysis of Financial Condition and Results of Operations -- Risks -- Market and Interest Rate Risk."
Intellectual Property
We own numerous trademarks and service marks to identify our various products and services, both by words and logos, or by "design" marks. We have 12 pending and 15 registered marks for such products and services, and we actively assert our rights to those marks when we believe potential infringement may be occurring. We believe our marks and logos have developed and continue to develop strong brand-name recognition in our industry and the consumer marketplace. Each of these marks has, upon registration, an indefinite duration so long as we continue to use the mark on or in connection with such goods or services as the mark identifies. In order to protect the indefinite duration, we make filings to continue registration of these marks. We own one patent application that has been published with respect to a customer-loyalty program and have also actively asserted our rights thereunder in situations
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where we believe our claims may be infringed upon. If such patent is granted, it will have a duration and effect of 20 years from the date of application. We own many copyright-protected works, including our various computer system codes and displays, Web sites, publications and marketing collateral. We also have trade secret rights to many of our processes and strategies, and our software product designs. Our software products are protected by both registered and common law copyrights. We also protect our software products through strict confidentiality and ownership provisions placed in license agreements which restrict the ability to copy, distribute or disclose the software products. We also have adopted internal procedures designed to preserve trade secrets with respect to our intellectual property.
We seek federal and/or state protection of intellectual property when deemed appropriate, including patent, trademark/service mark and copyright. The decision whether to seek such protection may depend on the perceived value of the intellectual property, the likelihood of securing protection, the cost of securing and maintaining that protection and the potential for infringement. Our employees are trained in the fundamentals of intellectual property, intellectual property protection and infringement issues, and are also required to sign agreements requiring, among other things, confidentiality of trade secrets, assignment of inventions and non-solicitation of other employees post-termination. Consultants, suppliers and other business partners are also required to sign nondisclosure agreements to protect our proprietary rights.
Seasonality
Origination of student loans is generally subject to seasonal trends, which correspond to the beginning of each semester of the school year. Stafford and PLUS loans are disbursed as directed by the school and are usually divided into two or three equal disbursements released at specified times during the school year. The two periods of August through October and December through February account for 73% of our total annual Stafford and PLUS disbursements. While applications and disbursements are seasonal, our earnings are generally not tied to this cycle. Due to our portfolio size and the volume of our acquisitions through our branding and forward flow channels, new disbursements or run-off for any given month will not materially change the net interest earnings of the portfolio. Historically, consolidation loans have primarily been made prior to or immediately after the July 1 reset in a rising or falling interest rate environment. This trend in the disbursement of consolidation loan disbursements has not occurred in the second half of 2003 and first quarter of 2004, as low interest rate environments and continued solicitation activities have resulted in a continued increase in our consolidation disbursements.
Customers
As of December 31, 2003, we provided student loan servicing either directly or through our proprietary software to more than 1.7 million borrowers. We have direct and indirect relationships with hundreds of colleges and universities across the nation. As of December 31, 2003, we had servicing agreements with approximately 280 customers and software license agreements with more than 30 licensees. Notwithstanding the depth of our customer base, our business is subject to some vulnerability arising from concentrations of loan origination volume with borrowers attending certain schools, loan origination volume generated by certain branding partners, loan and guarantee servicing volume generated by certain loan servicing customers and guaranty agencies, and software licensing volume generated by certain licensees. Our ability to maintain strong relationships with significant schools, branding partners, servicing customers, guaranty agencies and software licensees is subject to a variety of risks. Termination of such a strong relationship could result in a material adverse effect on our business. We cannot assure that our forward flow channel lenders or our branding partners will continue their relationships with us. Loss of a strong relationship, like that with a significant branding partner, such as Union Bank, or with schools such as University of Phoenix and Nova Southeastern University from which we directly or indirectly acquire a significant volume of student loans, could result in an adverse effect on our volume derived from our branding partner channel. For example, Nova Southeastern University, from which we purchased FFELP loans (through its relationship with Union Bank) comprising approximately 5.6% of our total student loan channel acquisitions in 2003, has informed us and Union Bank, the direct acquirer of the student loans, of its intent to not renew its sale commitment starting January 2007, in order to make a request for a proposal to potential purchasers, including Union Bank and us.
Competition
We face competition from many lenders in the highly competitive student loan industry. Using our size, we have leveraged economies of scale to gain market share and compete by offering a full array of FFELP and private loan products and services. In addition, we differentiate ourselves from other lenders through our vertical integration, technology and strong relationships with colleges and universities.
We view SLM Corporation, the parent company of Sallie Mae, as our largest competitor in loan origination, holding and servicing. SLM Corporation services nearly half of all outstanding FFELP loans and is the largest holder of student loans, with a portfolio of over $89 billion of managed and owned student loans as of December 31, 2003. Large national and regional banks are also strong competition, although many are involved only in origination. In different geographic locations across the country, we run into strong competition from the local tax-exempt student loan secondary markets. The Federal Direct Lending ("FDL") Program has also
8
reduced the origination volume available for FFEL Program participants, which in 2002 accounted for 28% of total volume, although this portion of total volume has decreased from approximately 33% in 1998. In addition, in the last few years, low interest rates have attracted many new competitors to the student loan consolidation business.
Employees
As of December 31, 2003, we had approximately 2,100 employees. Approximately 730 of these employees hold professional and management positions while approximately 1,370 are in support and operational positions. None of our employees are covered by collective bargaining agreements. We are not involved in any material disputes with any of our employees, and we believe that relations with our employees are good.
Available Information
We maintain a Web site at www.nelnet.net. Copies of our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, proxy statement and amendments to such reports are available without charge on our Web site as soon as reasonably practicable after such reports are filed with or furnished to the United States Securities and Exchange Commission (the "SEC").
We have adopted a Code of Business Conduct and Ethics (the "Code of Conduct") that applies to directors, officers and employees, including our principal executive officers and our principal financial and accounting officer, and have posted such Code of Conduct on our Web site. Amendments to and waivers granted with respect to our Code of Conduct relating to our executive officers and directors required to be disclosed pursuant to the applicable securities law and stock exchange rules and regulations will also be posted on our Web site. Our Corporate Governance Guidelines, Audit Committee Charter, Compensation Committee Charter and Nominating and Corporate Governance Committee Charter are also posted on our Web site and, along with our Code of Conduct, are available in print without charge to any shareholder who requests them. Please direct all requests as follows:
Nelnet, Inc. 121 South 13th Street, Suite 201 Lincoln, Nebraska 68508 Attention: Secretary
ITEM 2. PROPERTIES
We maintain 15 principal offices in cities across the United States. We do not own any of our principal facilities. The following table lists the principal facilities leased by us.

                                                                                                     Lease
                                                                                     Square        expiration
Location                       Primary Function or Segment                           footage          date
--------            --------------------------------------------------               --------     -------------
Albany, NY........  Charter Servicing Software                                          3,550     September 2004
Boise, ID.........  IFA Servicing Software                                              9,993     August 2005
Denver, CO........  Student Loan Servicing, Executive Management, Technology          120,663     February 2008
Fredericksburg, VA  Loan Consolidations                                                18,000     May 2007
Honolulu, HI......  Sales                                                                 611     October 2004
Indianapolis, IN..  Student Loan Servicing and Loan Generation                         58,770     February 2008
Jacksonville, FL..  Student Loan Servicing and Loan Generation,                       134,828     January 2007
                    Guarantee Servicing, Technology
Lincoln, NE.......  Corporate Headquarters, Student Loan Servicing and                 94,909     December 2010
                    Loan Generation
Scottsdale, AZ....  Capital Markets                                                     3,129     May 2005
Portland, ME......  Loan Generation, Sales                                              5,211     January 2010
Tempe, AZ.........  Loan Generation                                                     3,431     March 2004
Tucson, AZ........  Loan Generation                                                       426     June 2004
Tulsa, OK.........  Loan Generation, Sales                                              2,500     July 2008
Warwick, RI.......  Loan Generation, Sales                                              5,608     May 2005
Washington, DC....  Government Relations, Sales                                         6,852     May 2010	

We believe that our respective properties are generally adequate to meet our long-term student loan and new business goals. Our principal office is located at 121 South 13th Street, Suite 201, Lincoln, Nebraska 68508.
9
 
ITEM 3. LEGAL PROCEEDINGS
We are subject to various claims, lawsuits and proceedings that arise in the normal course of business. These matters principally consist of claims by borrowers disputing the manner in which their loans have been processed. On the basis of present information, anticipated insurance coverage and advice received from counsel, it is the opinion of our management that the disposition or ultimate determination of these claims, lawsuits and proceedings will not have a material adverse effect on our business, financial position or results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On November 3, 2003, a special shareholders' meeting was held in which the Company's shareholders unanimously approved the adoption of Second Amended and Restated Articles of Incorporation, the Directors Stock Compensation Plan and the Employee Share Purchase Plan. 29,061,876 votes of Class A and Class B Shareholders were voted in favor of each of the proposals and no votes were voted against any of the proposals or withheld. There were no abstentions.
On November 17, 2003, a special shareholders' meeting was held in which the Company's shareholders unanimously approved the adoption of the Restricted Stock Plan. 28,171,665 votes of Class A and Class B Shareholders were voted in favor of the proposal and no votes were voted against the proposal or withheld. There were no abstentions.
On November 25, 2003, a special shareholders' meeting was held in which the Company's shareholders unanimously approved the adoption of the revised Directors Stock Compensation Plan. 26,573,475 votes of Class A and Class B Shareholders were voted in favor of the proposal and no votes were voted against the proposal or withheld. There were no abstentions.
PART II.
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's Class A Common Stock is listed and traded on the New York Stock Exchange under the symbol "NNI," while its Class B Common Stock is not publicly traded. The number of holders of record of the Company's Class A Common Stock and Class B Common Stock as of February 13, 2004 was approximately 166 and six, respectively. For the partial quarter from December 11, 2003 (the initial public offering date of our Class A Common Stock) until December 31, 2003, the high and low sales prices for the Company's Class A Common Stock were $22.40 and $20.86, respectively.
The Company did not pay cash dividends on either class of our Common Stock for the two most recent fiscal years and does not intend to pay dividends in the foreseeable future. The Company intends to retain its earnings to finance operations and future growth, and any decision to pay cash dividends will be made by the Company's board of directors based on factors such as the Company's results of operations and working capital requirements. The credit agreement with the Company's general credit providers restricts payment of dividends or other distributions to shareholders in the event the Company were to be in default under the credit agreement or if payment of such a dividend or distribution would result in such a default. In addition, indentures governing the education lending subsidiaries limit the amounts of funds that can be transferred to the Company by its subsidiaries through cash dividends. These limitations result from the restrictions contained in trust indentures under debt financing arrangements to which the Company's education lending subsidiaries are parties.
For information regarding the Company's equity compensation plans, see Part III, Item 12 of this Report.
In 2003, the Company issued unregistered securities in the transaction described below.
On March 12, 2003, the Company issued an aggregate of 331,800 shares of Class A Common Stock to 35 employees for $2.43 per share, or an aggregate of $806,274. The securities issued in these transactions were issued in reliance on an exemption from registration under Section 4(2) of the Securities Act of 1933, as amended (the "Securities Act"), as transactions by an issuer not involving any public offering. The recipients of the securities represented their intentions to acquire the securities for investment only and not with a view to, or for sale or in connection with, any distribution thereof. Appropriate legends were affixed to the certificates representing the securities in such transactions.
On August 14, 2003, in connection with the recapitalization effected pursuant to the Company's amended and restated articles of incorporation, the Company issued an aggregate of 45,038,488 shares of its Class A and Class B Common Stock to the holders of its pre-recapitalization Class A Voting Common Stock and Class B Non-Voting Common Stock. The securities issued in this transaction were issued in reliance on the exemption from registration under
Section 3(a)(9) of the Securities Act, relating to securities exchanged by an issuer with its existing security holders exclusively where no commission or other remuneration is paid or given, directly or indirectly, for soliciting such exchange.
10
Each of the sales of securities was made without the use of an underwriter and the certificates evidencing the shares bear a restricted legend permitting the transfer thereof only upon registration of the shares or an exemption under the Securities Act.
On December 11, 2003, the Company issued and sold an aggregate of 8,000,000 shares of its Class A Common Stock pursuant to an effective registration statement under the Securities Act for $21 per share, or an aggregate of $168,000,000. On December 22, 2003, the Company issued and sold an aggregate of 586,800 shares of its Class A Common Stock pursuant to an effective registration statement under the Securities Act for $21 per share, or an aggregate of $12,322,800. We used a portion of the net proceeds of $167.6 million, less $4 million in stock offering costs, from these offerings as follows: $18.3 million was used to fund the two acquisitions in the first quarter of 2004 as discussed in "Management's Discussion and Analysis of Financial Condition and Results of Operations--Acquisitions"; and $30.0 million was used to repay then-outstanding revolving credit indebtedness. We intend to use the remaining net proceeds from these offerings to fund the future acquisition as discussed in "Management's Discussion and Analysis of Financial Condition and Results of Operations--Acquisitions," for general corporate purposes, including capital expenditures, working capital needs and potential other transactions complementary to our business.
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ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
The following table sets forth selected consolidated financial and other operating information of the Company. The selected financial data in the table is derived from the consolidated financial statements of the Company. The data should be read in conjunction with the consolidated financial statements, related notes, and "Management's Discussion and Analysis of Financial Condition and Results of Operations" included in this Form 10-K.

                                                    Year ended December 31,
                           --------------------------------------------------------------------------------
                               2003             2002             2001             2000             1999
                           ------------     ------------     ------------     ------------     ------------
                                           (dollars in thousands, except share data)
Income Statement Data:
Net interest income ....   $    178,612     $    190,900     $    114,565     $     64,853     $     59,538
Less provision for
 loan losses ...........        (11,475)          (5,587)          (3,925)          (1,370)          (1,800)
                           ------------     ------------     ------------     ------------     ------------
Net interest income
 after provision for
 loan losses ...........        167,137          185,313          110,640           63,483           57,738
Loan servicing and
 other fee income ......         99,294          103,899           93,172           66,015               --
Software services and
 other income ..........         19,398           21,909            7,713            8,431            5,387
Derivative market
 value loss ............         (1,170)            (579)          (2,962)              --               --
Operating expenses .....       (238,370)        (234,701)        (195,438)        (131,196)         (47,417)
                           ------------     ------------     ------------     ------------     ------------
Income before income
 taxes and minority
 interest ..............         46,289           75,841           13,125            6,733           15,708
Net income .............         27,103           48,538            7,147            4,520            9,671
Earnings per share,
 basic and diluted .....   $       0.60     $       1.08     $       0.16     $       0.11     $       0.42
Weighted average
 shares outstanding ....     45,501,583       44,971,290       44,331,490       41,187,230       22,863,444
Other Data:
Origination and
 acquisition volume (a)    $  4,253,014     $  2,665,786     $  1,448,607     $  1,027,498     $  2,015,263
Average student loans ..   $  9,451,035     $  8,171,898     $  5,135,227     $  3,388,156     $  1,750,097
Student loans
 serviced (at end of
 period) ...............   $ 18,773,899     $ 17,863,210     $ 16,585,295     $ 11,971,095     $         --
Ratios:
Net interest margin (b)            1.71%            2.15%            2.09%            1.76%            2.60%
Return on average
 total assets ..........           0.25%            0.52%            0.12%            0.12%            0.32%
Return on average equity           19.4%            49.2%            11.7%             8.2%            99.6%
Net loan charge-offs
 as a percentage of
 average student loans .          0.079%           0.047%           0.042%           0.055%           0.033%	

                                                        As of December 31,
                                -------------------------------------------------------------------
                                    2003          2002          2001         2000          1999
                                -----------   -----------   -----------   -----------   -----------
                                                     (dollars in thousands)
Balance Sheet Data:
Cash and cash equivalents ...   $   198,423   $    40,155   $    36,440   $    23,263   $    26,497

Student loan receivables, net    10,455,442     8,559,420     7,423,872     3,585,943     2,989,985
Total assets ................    11,931,509     9,766,583     8,134,560     4,021,948     3,302,098
Bonds and notes payable .....    11,366,458     9,447,682     7,926,362     3,934,130     3,265,532
Shareholders' equity ........       305,489       109,122        63,186        54,161        15,380	

(a) Initial loans originated and acquired through various channels, including originations through our direct channel and acquisitions through our branding partner channel, our forward flow channel and the secondary market.
(b) Net interest margin is computed by dividing net interest income by the sum of average student loans and the average balance of other interest earning assets.
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ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This report contains forward-looking statements and information that are based on management's current expectations as of the date of this document. When used in this report, the words "anticipate," "believe," "estimate," "intend" and "expect" and similar expressions are intended to identify forward-looking statements. These forward-looking statements are subject to risks, uncertainties, assumptions and other factors that may cause the actual results to be materially different from those reflected in such forward-looking statements. These factors include, among others, changes in the terms of student loans and the educational credit marketplace arising from the implementation of applicable laws and regulations and from changes in these laws and regulations, which may reduce the volume, average term and costs of yields on student loans under the FFEL Program or result in loans being originated or refinanced under non-FFELP programs or may affect the terms upon which banks and others agree to sell FFELP loans to us. We could also be affected by changes in the demand for educational financing or in financing preferences of lenders, educational institutions, students and their families; changes in the general interest rate environment and in the securitization markets for education loans, which may increase the costs or limit the availability of financings necessary to initiate, purchase or carry education loans; losses from loan defaults; and changes in prepayment rates and credit spreads.
Overview
We are a vertically integrated education finance company, with over $11.9 billion in total assets as of December 31, 2003, making us one of the leading education finance companies in the country. We are focused on providing quality products and services to participants in the education finance process. Headquartered in Lincoln, Nebraska, we originate, hold and service student loans, principally loans originated under the FFEL Program. We, together with our branding partners, originated and acquired approximately $4.3 billion of student loans in 2003, which includes $1.2 billion of existing loans we consolidated from our own loan portfolio, making us a leading originator and acquirer of student loans.
Our business is comprised of four primary product and service offerings:
o Asset management, including student loan originations and acquisitions. We provide student loan sales, marketing, originations, acquisition and portfolio management. We own a large portfolio of student loan assets through a series of education lending subsidiaries. We generate loans owned in special purpose lending facilities through direct origination or through acquisition of loans. We also provide marketing and sales support and managerial and administrative support related to our asset generation activities.
o Student loan servicing. We service our student loan portfolio and the portfolios of third parties. The servicing activities provided include loan origination activities, application processing, borrower updates, payment processing, claim processing and due diligence procedures.
o Guarantee servicing. We provide servicing support to guaranty agencies, which includes system software, hardware and telecommunication support, borrower and loan updates, default aversion tracking services, claim processing services and post-default collection services.
o Servicing software. We provide student loan servicing software internally and to third-party student loan holders and servicers.
In accordance with accounting principles generally accepted in the United States, our asset management and student loan servicing offerings constitute reportable operating segments. Our guarantee servicing and servicing software offerings are operating segments that do not meet the quantitative thresholds, and, therefore, are included as other segments that do not meet the reportable segment criteria. The following table shows the total segment revenue (excluding intersegment revenue) and net income of each of our reportable segments for the years ended December 31, 2003 and 2002. For additional information, see note 18 of the notes to the consolidated financial statements.

                        Year ended December 31, 2003          Year ended December 31, 2002
                     ----------------------------------    -----------------------------------
                                   Student                               Student
                       Asset        loan        Other        Asset         loan        Other
                     management   servicing    segments    management    servicing    segments
                     ----------   ---------    --------    ----------    ---------    --------
Segment revenue        61.8%        27.3%        10.9%        63.7%        28.2%         8.1%

Segment net income     72.7%        23.3%         4.0%        94.6%        13.5%        (8.1%)	

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Our student loan portfolio has grown significantly through origination and acquisition. With the development of our fully integrated platform, we are positioned for organic growth. We originated and acquired $4.3 billion of student loans in 2003, which includes $1.2 billion of existing loans we consolidated from our own loan portfolio, through various channels, including:
o our direct channel, in which we originate student loans in one of our brand names directly to student and parent borrowers, which accounted for 58.9% of the student loans we originated and acquired in 2003 (43.4% when excluding loans we consolidated from our own loan portfolio);
o our branding partner channel, in which we acquire student loans from lenders to whom we provide marketing and origination services, which accounted for 19.0% of the student loans we originated and acquired in 2003 (26.2% when excluding loans we consolidated from our own loan portfolio); and
o our forward flow channel, in which we acquire student loans from lenders to whom we provide origination services, but provide no marketing services, or who have agreed to sell loans to us under forward sale commitments, which accounted for 14.2% of the student loans we originated and acquired in 2003 (19.5% when excluding loans we condolidated from our own loan portfolio).
In addition, we also acquire student loans through spot purchases, which accounted for 7.9% of student loans that we originated and acquired in 2003 (10.9% when excluding loans we consolidated from our own loan portfolio). We have increased our student loan portfolio by $6.8 billion over the last three years, including $2.9 billion of loans acquired in subsidiary acquisitions.
Significant Drivers and Trends
Our earnings and earnings growth are directly affected by the size of our portfolio of student loans, the interest rate characteristics of our portfolio, the costs associated with financing and managing our portfolio and the costs associated with the origination and acquisition of the student loans in the portfolio. See "-- Student Loan Portfolio."
In addition to the impact of growth of our student loan portfolio, our results of operations and financial condition may be materially affected by, among other things, changes in:
o applicable laws and regulations that may affect the volume, terms, effective yields or refinancing options of education loans;
o demand for education financing and competition within the student loan industry;
o the interest rate environment, funding spreads on our financing programs and access to capital markets; and
o prepayment rates on student loans, including prepayments relating to loan consolidations.
Competition for the supply channel of education financing and the student loan industry has caused the cost of acquisition related to our student loan assets to increase. In addition, we have seen significant increases in consolidation loan activity and consolidation loan volume within our industry. The increase in competition for consolidation loans has caused us to be aggressive in our measures to protect and secure our existing portfolio through internal consolidation efforts. We will generally recognize our cost of acquisition over the average useful life of the assets; however, we will generally accelerate recognition of the unamortized cost of acquisition when loans are consolidated, even if they are consolidated on our balance sheet. The significant increase in consolidation activity, entrants and competition within the industry, coupled with our asset retention practices, have caused our yields to be reduced in recent years through amortization of acquisition costs. If these trends continue, we could continue to see our yields reduced through the increase in consolidation loans, which have a lower yield and also result in a further increase in amortization costs. See "-- Student Loan Portfolio--Student Loan Spread Analysis." Although our short-term yields may be reduced, we will have been successful in protecting our assets and stabilizing our balance sheet for long-term growth.
Our student loan portfolio and asset growth will be significant factors in determining future growth in our net interest income as our primary source of income is interest earned on our student loan portfolio. If our student loan portfolio continues to grow and our net interest margin remains relatively stable, we expect our net interest income to increase after adjusting for any variable-rate floor income. Interest income, and to a certain extent our net income, is also dependent upon the relative level of interest rates. While we expect our student loan portfolio and interest earning assets to continue to grow, which should cause interest income and earnings growth, we do not expect to continue to grow at historical levels. Specifically, our net income in 2003 decreased $21.4 million, or 44.2%, as compared to 2002 primarily because of the decrease in our variable-rate floor income. Net interest income decreased by $12.3 million, or 6.4%, in 2003 as compared to 2002. This decrease was a result of a decrease in variable rate floor income of $37.0 million, which was offset by an increase in interest income from the growth in our student loan portfolio and decreased interest rates on our borrowings. Therefore, net interest income, excluding the effects of variable-rate floor income, increased approximately $24.7 million, or 17.5%, in 2003 as compared to 2002. This increase in net interest income, excluding variable-rate floor income, has resulted from the portfolio growth previously discussed. Variable-rate floor income occurs in certain declining interest rate environments, and we cannot predict whether these interest rate
14
environments will occur in the future. We generally do not anticipate receiving or plan to receive variable-rate floor income.
We reported net income of $27.1 million in 2003, or $0.60 per basic and diluted share, as compared to $48.5 million, or $1.08 per basic and diluted share, in 2002. Net interest income includes more than $69.3 million, or 73 basis points, in yield reduction due to amortization of loan acquisition costs or premiums in 2003, as compared to $55.1 million, or 67 basis points, in 2002. Despite our solid loan volume growth, our unamortized cost of loan acquisitions or premiums has been reduced from 1.9% at December 31, 2002 to 1.5% at December 31, 2003. In addition, we recorded approximately $12.8 million of variable-rate floor income in 2003 as compared to approximately $49.8 million in 2002. Operating expenses in 2003 included $12.8 million of amortization of intangible assets resulting from acquisitions prior to 2003, of which $6.7 million is not deductible for federal income tax purposes. Amortization of intangible assets totaled $22.2 million in 2002, which included $16.2 million not deductible for federal income tax purposes. Operating expenses in 2003 also include an additional $5.1 million in one-time costs to terminate consulting and employment contracts in 2003. In addition, in preparing for our initial public offering in December 2003, we incurred a non-recurring, nondeductible, non-cash stock compensation expense of $5.2 million for stock purchased by employees early in 2003.
Our net income also included a mark-to-market loss on derivative instruments of $1.2 million in 2003 as compared to $0.6 million in 2002. We maintain an overall interest rate risk management strategy that incorporates the use of derivative instruments to minimize the economic effect of interest rate volatility. Management has structured all of our derivative transactions with the intent that each is economically effective. However, most of our derivative instruments do not qualify for hedge accounting under SFAS No. 133 and thus may adversely impact earnings. In addition, the mark-to-market adjustment recorded through earnings in our consolidated statements of income may fluctuate from period to period.
Acquisitions
We have positioned ourselves for growth by building a strong foundation through mergers and acquisitions of related and unrelated entities. Although our assets and loan portfolios increased through these transactions, a key aspect of each transaction was its impact on our prospective organic growth and the development of our integrated platform of services. As a result of our rapid growth, the development of our platform and changes in operations, period-to-period comparability of our results of operations may be difficult.
In 2000, we acquired UNIPAC Service Corporation, a related entity, and InTuition Holdings, Inc., which added servicing and origination operations. In 2001, we acquired MELMAC, Inc., which increased our FFELP portfolio by $424 million, and GuaranTec LLP, which added guarantee servicing to our activities. In addition, in December 2001, we acquired EFS, Inc., which increased our loan servicing operations and added $2.5 billion to our FFELP portfolio. In 2002, we expanded our product suite by adding loan servicing software products through the acquisitions of Idaho Financial Associates, Inc. and Charter Account Systems, Inc. In 2003, we acquired UFS Securities, LLC, which added broker-dealer services to our services.
In January 2004, we acquired a 50% interest in Premiere Credit of North America, LLC, or Premiere, a collection services company that specializes in collection of educational debt. Premiere is based in Indianapolis, Indiana, and employs approximately 45 persons. In March 2004, we acquired rights, for a term of ten years, in certain assets of the Rhode Island Student Loan Authority, or RISLA, including the right to originate student loans in RISLA's name without competition from RISLA during such time period. RISLA also sold to us a portfolio of FFELP loans with an aggregate outstanding balance of approximately $175 million. We have further agreed to provide administrative services in connection with certain of the indentures governing debt securities of RISLA for a ten-year period. We have also entered into an agreement to acquire a FFELP loan secondary market, which holds a FFELP loan portfolio of approximately $130 million. We expect this acquisition to close during the second quarter of 2004.
Net Interest Income
We generate the majority of our earnings from the spread between the yield we receive on our portfolio of student loans and the cost of funding these loans. This spread income is reported on our income statement as net interest income. The amortization and write-offs of premiums or discounts, including capitalized costs of origination, the consolidation loan rebate fee and yield adjustments from borrower benefit programs, are netted against loan interest income on our income statement. The amortization and write-offs of bond issuance costs are included in interest expense on our income statement.
Our portfolio of FFELP loans generally earns interest at the higher of a variable rate based on the special allowance payment, or SAP, formula set by the U.S. Department of Education (the "Department,") and the borrower rate, which is fixed over a period of time. The SAP formula is based on an applicable index plus a fixed spread that is dependent upon when the loan was originated and the loan's repayment status. Depending on the type of student loan and when the loan was originated, the borrower rate is either fixed to term or is reset to a market rate each July 1. Loans that reset annually on each July 1 can generate excess spread income as compared to the rate based on the SAP formula in certain declining interest rate environments. We refer to this additional income as
15
variable-rate floor income and it is included in loan interest income as described further in "-- Results of Operations" below. Historically, we have earned excess spread, or variable-rate floor income, in declining interest rate environments as recently as our most recent fiscal year. Since the rates are reset annually, we view these earnings as temporary and not necessarily sustainable. Our ability to earn variable-rate floor income in the future periods is dependent upon the interest rate environment following the annual reset of borrower rates, and we cannot assure that such environment will exist in the future.
The table below sets forth the weighted average borrower interest rate and weighted average lender interest rate for all variable-rate student loan assets for the period indicated.

                                        As of December 31,
                                  -----------------------------
                                  2003         2002        2001
                                  ----         ----        ----
Weighted average borrower
interest rate...................  3.76%       4.97%        7.02%
Weighted average lender
interest rate...................  3.49%       4.27%        6.23%	

Because we generate the majority of our earnings from the spread between the yield we receive on our portfolio of student loans and the cost of financing these loans, the interest rate sensitivity of our balance sheet is very important to our operations. The current and future interest rate environment can and will affect our interest earnings, net interest income and net income. The effects of changing interest rate environments are further outlined in "-- Risks -- Market and Interest Rate Risk" below.
On those FFELP loans with fixed to term borrower rates, primarily consolidation loans, we earn interest at the greater of the borrower rate or a variable rate based on the SAP formula. Since we finance the majority of our student loan portfolio with variable-rate debt, we may earn excess spread on these loans for an extended period of time.
On most consolidation loans, we must pay a 1.05% per year rebate fee to the Department. Those consolidation loans which have variable interest rates based on the SAP formula earn a yield less than that of a Stafford loan. Those consolidation loans which have fixed interest rates less than the sum of 1.05% and the variable rate based on the SAP formula also earn a yield less than that of a Stafford loan. As a result, as consolidation loans matching these criteria become a larger portion of our loan portfolio, there will be a lower yield on our loan portfolio in the short term. However, due to the extended terms of consolidation loans, we expect to earn the yield on these loans for a longer duration, making them beneficial to us in the long term.
A portion of our FFELP loan portfolio, with an outstanding balance of $2.6 billion as of December 31, 2003, is comprised of loans which were previously financed with tax-exempt obligations issued prior to October 1, 1993. Based upon provisions of the Higher Education Act and related interpretations by the Department, we believe that we may be entitled to receive special allowance payments on these loans providing us with a 9.5% minimum rate of return. To date, we have not recognized interest income generated by these loans based on the 9.5% minimum rate of return. We have asked the Department to confirm that we are allowed to recognize the income based on the 9.5% minimum rate of return. We have deferred recognition of this excess interest income pending satisfactory resolution of this issue. As of December 31, 2003, the amount of excess interest income deferred totaled approximately $42.9 million which is included in other liabilities on our consolidated balance sheet. Since we did not refinance loans with the aforementioned tax-exempt obligations until 2003, all of this deferred income was recorded this year. Legislation has been proposed to eliminate variable rate floor income as well as the 9.5% floor interest rate on loans financed with funds from pre-1993 tax-exempt financings. The enactment of this legislation might prospectively eliminate floor income on pre-1993 tax-exempt financings and allow us to recognize our deferred excess interest income. Conversely, we cannot be assured that any such legislation, if enacted, will only prospectively eliminate this floor income. At this time, we cannot predict how any such potential legislation will affect our operations in the future.
In declining interest rate environments, we can earn significant amounts of variable-rate floor income. The more drastic the reduction in rates subsequent to the July 1 annual borrower interest rate reset date, the greater our opportunity to earn such income. Conversely, as the decline in rates abates, or in environments where interest rates are rising, our opportunity to earn variable-rate floor income can be reduced, in some cases substantially. Although we have been in a historically low interest rate environment, interest rates on which our assets are indexed have been rising since the second quarter of 2003. As interest rates increase, we incur greater financing costs on our variable-rate financings. An increase in our financing costs, in turn, decreases the spread between the rate of our FFELP loans (which reset annually) and the rate of our financings, ultimately causing a decrease in variable-rate floor income.
Investment interest income includes income from unrestricted interest-earning deposits and funds in our special purpose entities for our asset-backed securitizations.
16
Provision for Loan Losses
We maintain an allowance for loan losses associated with our student loan portfolio at a level that is based on the performance characteristics of the underlying loans. We analyze the allowance separately for our FFELP loans and our private loans.
The loan loss allowance attributable to FFELP loans consists of two components: a risk sharing reserve and a reserve for rejected guaranty agency claim losses, caused mainly by servicing defects. The risk sharing reserve is an estimate based on the amount of loans subject to the 2% risk sharing and on the historical experience of losses. The rejected claim loss reserve is based on the historical trend of ultimate losses on loans initially rejected for reimbursement by guaranty agencies. FFELP loans are guaranteed as to both principal and interest and, therefore, continue to accrue interest until the time they are paid by the guaranty agency. Once a FFELP loan is rejected for claim payment, our policy is to continue to pursue recovery of principal and interest, whether by curing the reject or collecting from the borrower. We attempt to cure the rejected claims through our collection efforts. As of December 31, 2003, we had an allowance for loan losses on FFELP loans of $10.8 million.
In determining the private loan loss allowance, we divide the portfolio into various categories, such as the type of program, loan status and months into repayment. We then estimate defaults based on the borrowers' credit profiles, net of estimated recoveries. We place a private loan on non-accrual status and charge off the loan when the collection of principal and interest is 120 days past due. We utilize this data to estimate the amount of losses in the portfolio, net of subsequent collections, that are probable of occurrence. As of December 31, 2003, we had an allowance for loan losses on private loans of $5.2 million.
The evaluation of the provision for loan losses is inherently subjective, as it requires material estimates that may be subject to significant changes. The provision for loan losses reflects the activity for the applicable period and provides an allowance at a level which our management believes is adequate to cover probable losses inherent in the loan portfolio.
The Higher Education Act authorizes the Department to recognize lenders and lender servicers (as agent for the eligible lender) for an exceptional level of performance in servicing FFELP loans. A lender or lender servicer designated for exceptional performance can receive 100 percent reimbursement on all claims submitted for insurance provided that the lender or lender servicer meets and maintains all requirements for achieving its designation. On December 29, 2003, we applied for Exceptional Performance status as a student loan servicer for the FFEL Program. Our original application was denied by the Department based on two issues. We believe we have provided sufficient information related to one of the issues to consider it resolved. The other issue relates to a complaint submitted to the Department by a former employee in connection with our procedures in processing certain FFELP loan borrower forbearances. In March 2004, the Department provided us with a summary of that complaint and also forwarded the complaint on to the Office of the Inspector General, or OIG. As we understand, this former employee's complaint alleges that we incorrectly processed certain forbearances during a limited time period and with respect to a limited number of borrower accounts. Our management has reviewed the procedures in connection with this activity and concluded that such procedures did not violate FFELP loan servicing regulations. We are cooperating with the Department to resolve this issue. We promptly advised our independent auditors, KPMG LLP, of the issues. There can be no assurance that the OIG will review the former employee's complaint without conducting an investigation, or that the outcome of any investigation will be favorable. If an OIG investigation were to occur, we do not expect any adverse finding, nor do we believe that this issue will result in a material adverse financial impact on us even if an investigation were to result in an adverse finding. A delayed resolution of this matter may delay our ability to resubmit an application with the Department to become a lender servicer designated for exceptional performance, and an unfavorable resolution of this matter may result in an inability to resubmit that application. If we are able to resubmit our application, we cannot be assured that we will receive or maintain the designation as exceptional performer. Should we receive and maintain designation as an exceptional performer under the Higher Education Act, our cost related to losses on defaulted FFELP loans, specifically the 2% risk share component that is not guaranteed, could be substantially reduced and would differ significantly from historical losses and trends.
Other Income
We also earn fees and generate income from other sources, including principally loan servicing, guarantee servicing and licensing fees on our software products. Loan servicing fees are determined according to individual agreements with customers and are calculated based on the dollar value or number of loans or accounts serviced for each customer. Guarantee servicing fees are earned as a result of our providing system software, hardware and telecommunication support, borrower and loan updates, default aversion tracking services, claim processing services and post-default collection services to guaranty agencies. Guarantee servicing fees are calculated based on the number of loans serviced or amounts collected. Software services income includes software license and maintenance fees associated with student loan software products as well as certain loan marketing fees. Other income also includes the derivative market value adjustment as further discussed in "-- Risks -- Market and Interest Rate Risk" below.
In addition, we earn fee income on some of our securitization transactions through UFS Securities, our wholly owned broker-dealer, which effectively decreases our costs associated with accessing this market. UFS Securities sells certain tranches of our auction rate securities in a co-broker dealer arrangement with certain third-party broker-dealers. UFS Securities is paid the same amount
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of fees as the third-party broker-dealers for selling the auction rate securities. Since UFS Securities, which was acquired in August 2003, is our wholly owned subsidiary, these sales and the fees received for the sales by our wholly owned subsidiary will have the effect of reducing our overall costs on the sales of our auction rate securities.
As we expand our student loan origination and acquisition activities, we may face increased competition with some of our servicing customers. In the past, including one case in 2003, servicing customers have terminated their servicing relationships with us. Furthermore, we could in the future lose more servicing customers as a result of such increased competition. However, the vast majority of our servicing agreements provide for life-of-loan servicing of the existing loans, and, as such, we do not expect this loss or the potential future loss of customers to have a material adverse effect on our results of operations for the foreseeable future.
One of our guarantee servicing customers recently notified us of its intention not to renew its servicing contract. The loss of this customer is not expected to have a material effect on our results of operations due to the relative portion of our earnings attributable to guarantee servicing revenue and the size of the individual customer.
The income and revenues provided through our servicing software operations have increased in recent years with the acquisitions of Idaho Financial Associates, Inc. and Charter Account Systems, Inc. in January 2002 and May 2002, respectively. This increase was offset by a decrease in other income. To the extent that our servicing software license and maintenance revenues continue to increase, we believe that such increase will primarily come from our existing customer base.
Operating Expenses
Operating expenses include costs incurred to manage and administer our student loan portfolio and our financing transactions, costs incurred to generate and acquire student loans and general and administrative expenses, which include corporate overhead. Operating expenses also include amortization of intangible assets related to acquisitions. We do not believe inflation has a significant effect on our operations.
Results of Operations
Year ended December 31, 2003 compared to year ended December 31, 2002
Net interest income. Loan interest income decreased by $45.0 million, or 11.1%, in 2003 as compared to 2002. This decrease was a result of changes in the interest rate environment and in the pricing characteristics of our student loan assets, although such decrease was partially offset by an increase in the size of our student loan portfolio. Lower interest rates in 2003 caused a decrease in the average net yield on our student loan portfolio to 3.82% from 4.96% in 2002. Variable-rate floor income decreased approximately $37.0 million to approximately $12.8 million in 2003 from approximately $49.8 million in 2002, due to the timing and relative change in interest rates during the periods. Essentially, prevailing interest rates declined drastically subsequent to the July 1, 2002 annual borrower interest rate reset date compared to their less substantial decline following the reset of rates on July 1, 2003. Consequently, we realized significantly less variable-rate floor income during 2003 than we did in 2002. The weighted average interest rate on our student loan portfolio decreased in 2003 due to lower interest rates, together with the increase in the number of lower yielding consolidation loans. The lower weighted average loan interest rate resulted in a reduction in loan interest income of approximately $41.5 million. Consolidation loan activity also increased the amortization and write-offs of acquisition costs and increased the consolidation rebate fee, reducing loan interest income an additional approximately $29.9 million in 2003. The reduction in loan interest income resulting from the decline in interest rates and reduction in variable-rate floor income was partially offset by an increase in our portfolio of student loans. The average student loan portfolio increased by $1.3 billion, or 15.7%, in 2003 as compared to 2002, which increased loan interest income by approximately $63.1 million in 2003 as compared to 2002.
Investment interest income decreased $5.6 million, or 26.8%, in 2003 as compared to 2002. This decrease was due to the termination of a joint venture with a large financial institution in the second quarter of 2003.
Interest expense on bonds and notes payable decreased $38.3 million, or 16.3%, in 2003 as compared to 2002. This decrease occurred despite an increase in average total debt of approximately $1.6 billion, specifically an increase in average variable-rate debt of $1.8 billion, which increased interest expense by approximately $22.0 million. The reduction in interest rates, specifically LIBOR and auction rates, decreased our average cost of funds to 1.86% in 2003 from 2.59% in 2002. As a result, interest expense decreased approximately $43.0 million in 2003 as compared to 2002. We reduced average fixed-rate debt by $212.0 million in 2003, which decreased our overall interest expense by approximately $12.5 million as compared to 2002. Interest expense on bonds and notes payable during 2003 includes additional amortization and write-offs of bond issuance costs of $2.6 million incurred as a result of refinancing certain debt transactions compared to $5.3 million in 2002.
As a result of the foregoing, net interest income decreased by $12.3 million, or 6.4%, in 2003 as compared to 2002. Our net interest margin decreased to 1.71% in 2003 from 2.15% in 2002. Net interest income, excluding the effects of variable-rate floor
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income of $12.8 million in 2003 and $49.8 million in 2002, increased approximately $24.7 million, or 17.5%, to approximately $165.8 million in 2003 from approximately $141.1 million in 2002.
Provision for loan losses. The provision for loan losses for FFELP and private loans increased $5.9 million, or 105.4%, in 2003 as compared to 2002. The provision for loan losses for FFELP loans increased $1.1 million in 2003 compared to 2002 due to the increase in the size of our FFELP loan portfolio. The provision for loan losses for private loans increased $4.8 million in 2003 compared to 2002. This increase was due to a provision of $4.3 million for an identified pool of private loans based on aging, delinquency and performance of such identified pool. This pool of private loans was limited to borrowers attending a single school, and, in early 2002, we ceased making private loans to borrowers attending that school. The remaining increase of $0.5 million was due to the increase in size of our private loan portfolio. Our net loan charge-offs as a percentage of average student loans increased to 0.079% in 2003 from 0.047% in 2002. This increase is directly attributable to the identified pool of private loans as a result of the continued aging of this portfolio. The Company periodically re-evaluates the requirements of its provision for loan losses, and future additions to the provision for our student loans and the identified pool of private loans may be necessary.
Other income. Total other income decreased $7.7 million, or 6.2%, in 2003 as compared to 2002. Loan servicing and other fee income decreased $4.6 million, or 4.4%, software services and other income decreased $2.5 million, or 11.5%, and derivative market value adjustment loss increased $0.6 million, or 102.1%, in 2003 as compared to 2002.
Loan servicing and other fee income decreased due to the reduction in the number and dollar amount of loans we serviced for third parties. Total third-party loan servicing volume decreased $1.1 billion, or 10.1%, in 2003 as compared to 2002. This resulted in a decrease in loan servicing income of $9.4 million in 2003 as compared to 2002. This decrease in income was offset by an increase of $4.8 million of guarantee servicing income in 2003 due to higher guarantee volumes.
The decrease in software services and other income was due to additional income earned of $5.7 million in 2002 on a marketing contract that was terminated in the fourth quarter of 2002. This decrease was offset by an increase of $3.4 million due to the acquisitions of Charter Accounts Systems, Inc. in May 2002 and Idaho Financial Associates in January 2002 and an increase in other income of $1.3 million due to the acquisition of UFS Securities in August 2003. In addition, late fee income on borrower payments increased $1.0 million in 2003. In 2002, we recognized marketing income of $2.3 million as a broker on a loan sale.
The derivative market value adjustment loss increased as we increased our use of derivative instruments in 2003 to provide economic hedges to protect against the impact of adverse changes in interest rates. The derivative market value adjustment loss of $0.6 million in 2002 was due to the interest rate swap in the notional amount of $500 million entered into in 2001 that expired in the second quarter of 2002. See "-- Risks -- Market and Interest Rate Risk."
Operating expenses. Total operating expenses increased $3.7 million, or 1.6%, in 2003 as compared to 2002. Salaries and benefits increased $17.4 million, or 16.3%, and total other expenses decreased $13.7 million, or 10.7%, in 2003 as compared to 2002.
Salaries and benefits increased as a non-cash stock compensation expense of $5.2 million was recognized in the third quarter of 2003 equal to the difference between the product of the estimated initial public offering price and the number of shares issued in March 2003 and the total price paid by the employees. In addition, salary expense increased $5.1 million in 2003 as compared to 2002 associated with the termination of consulting and employment agreements, of which $1.8 million was incurred in the fourth quarter of 2003. The remaining increase of $7.1 million is due to the increased personnel from the acquisitions previously described and expansion of our marketing efforts.
The net decrease in total other expenses can be attributed to a decrease in depreciation and amortization expense of $9.3 million, or 28.7%, due to the decrease in the amortization of intangible assets of $9.5 million as certain intangible assets were fully amortized in 2002. Trustee and other debt-related fees increased $2.7 million, or 16.5%, in 2003 as compared to 2002 as a result of a $1.6 billion increase in average total debt outstanding. Advertising and marketing expenses decreased $1.3 million, or 11.6%, in 2003 as compared to 2002 due to a $2.4 million expense incurred on a large marketing contract that was terminated in December 2002. The decrease was offset by an increase in marketing activities related to consolidation mailings in 2003. Consulting fees and support services to related parties decreased $9.3 million, or 72.5%, in 2003 as compared to 2002 as a result of a $1.4 million decrease in consulting fees due to the termination of a large consulting agreement in December 2002. The remaining decrease was due to the conversion related fees paid in 2002 for the systems conversion that occurred in November 2002. Postage and distribution expenses increased $2.1 million, or 19.3%, in 2003 as compared to 2002 due to an increase in mass mailings to promote origination of Stafford and consolidation loans.
Income tax expense. Income tax expense decreased $8.4 million, or 30.3%, in 2003 compared to 2002, due to the decrease in income before income taxes. Our effective tax rate was 41.7% in 2003 as compared to 36.5% in 2002. The increase in the effective rate principally was a result of the non-cash stock compensation expense recognized in 2003 for financial statement purposes that was not deductible for tax purposes.
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Net income. Net income decreased to $27.1 million in 2003 from $48.5 million in 2002, for the reasons discussed above.
Year ended December 31, 2002 compared to year ended December 31, 2001
Net interest income. Loan interest income increased by $86.7 million, or 27.2%, in 2002 as compared to 2001. This increase was the result of changes in the interest rate environment, in the pricing characteristics of our student loan assets, and in the size of our student loan portfolio. Lower interest rates in 2002 caused a decrease in the average net yield on our student loan portfolio to 4.96% in 2002 from 6.20% in 2001. Variable-rate floor income increased approximately $19.9 million to approximately $49.8 million in 2002 from approximately $29.9 million in 2001, due to the timing and relative change in interest rates during the periods. The weighted average interest rate on our student loan portfolio decreased in 2002 due to the lower interest rates, together with the increase in the number of lower yielding consolidation loans. The lower weighted average loan interest rate resulted in a reduction in loan interest income of approximately $65.2 million. Consolidation loan activity also increased the amortization and write-offs of acquisition costs, reducing loan interest income an additional approximately $40.4 million in 2002. The reduction in loan interest income resulting from the decline in interest rates and the reduction in variable-rate floor income was partially offset by an increase in our portfolio of student loans. The average student loan portfolio increased by approximately $3.0 billion, or 59.1%, in 2002 as compared to 2001, which increased loan interest income by $192.1 million in 2002 as compared to 2001, including the increase related to variable-rate floor income.
Investment interest income increased $4.0 million, or 23.6%, in 2002 as compared to 2001, due to an approximately $360.1 million increase in average investment and interest-earning deposits during 2002.
Interest expense on bonds and notes payable increased $14.3 million, or 6.5%, in 2002 as compared to 2001. Average variable-rate debt increased $4.1 billion, which resulted in an increase in interest expense of $85.9 million. The reduction in short-term interest rates, specifically LIBOR, decreased our average cost of funds to 2.59% in 2002 from 3.95% in 2001. As a result, interest expense decreased approximately $83.1 million in 2002 as compared to 2001. We increased average fixed-rate debt by $199.9 million during 2002, which increased our overall interest expense by approximately $12.0 million as compared to 2001. In 2002, we first accessed the term securitization market. While the interest expense associated with term securitizations is less than that associated with our other debt instruments, the incremental benefit in 2002 was negligible. While we expect that we will continue to access the term securitization markets, we cannot predict whether the benefits of our accessing those markets will be material to our results of operations in future periods.
As a result of the foregoing, net interest income increased by $76.3 million, or 66.6%, in 2002 as compared to 2001. Our net interest margin increased to 2.15% in 2002 from 2.09% in 2001. Net interest income, excluding the effects of variable-rate floor income of $49.8 million in 2002 and $29.9 million in 2001, increased $56.4 million, or 66.6%, to $141.1 million in 2002 from $84.7 million in 2001.
Provision for loan losses. The provision for loan losses for FFELP and private loans increased $1.7 million, or 43.3%, in 2002 as compared to 2001. The provision for loan losses for FFELP loans decreased $100,000, or 3.0%, in 2002 as compared to 2001. The provision for loan losses for private loans increased $1.8 million, or 242.9%, in 2002 as compared to 2001. This increase was due to a provision of approximately $1.6 million for an identified pool of private loans based on aging, delinquency and performance of such identified pool. This pool of private loans was limited to loans to borrowers attending a single school, and, in early 2002, we ceased making private loans to borrowers attending that school. The remaining combined increase of $100,000, or 2.5%, was due to the increase in size of our FFELP and private loan portfolios.
Other income. Total other income increased $27.3 million, or 27.9%, in 2002 as compared to 2001. Loan servicing and other fee income increased $10.7 million, or 11.5%, software services and other income increased $14.2 million, or 184.1%, and derivative market value adjustment loss decreased $2.4 million, or 80.5%, in 2002 as compared to 2001.
Loan servicing and other fee income increased due to growth in the loan servicing portfolio of $817.5 million in 2002 and the acquisition of EFS, Inc., which increased the servicing portfolio by an additional $1.0 billion in 2002. The change in the loan servicing volume resulted in an increase in loan servicing income of $1.3 million. In addition, we acquired GuaranTec, LLP in June 2001 resulting in an increase of $8.7 million in guarantee servicing income in 2002 as compared to 2001.
Software services and other income increased due to the acquisitions of Charter Account Systems, Inc. in May 2002 and Idaho Financial Associates, Inc. in January 2002. These acquisitions resulted in an increase in income of approximately $6.2 million in 2002 compared to 2001. Additional income of $6.6 million was earned on a marketing contract in 2002 that was not in existence in 2001. Other income also included an increase in administrative services income of $1.2 million in 2002 as compared to 2001 from the support services provided to FirstMark Services, LLC, which was not in existence in 2001.
The derivative market value adjustment loss decreased as the interest rate swap entered into in 2001 expired in June 2002.
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Operating expenses. Total operating expenses increased $39.3 million, or 20.1%, in 2002 as compared to 2001. Salaries and benefits increased $29.5 million, or 38.1%, and total other expenses increased $11.3 million, or 10.1%, in 2002 as compared to 2001. The increase in salaries and benefits is due to the following: the acquisition of EFS, Inc. in December 2001, which increased salaries and benefits by $11.2 million, the acquisition of Idaho Financial Associates, Inc. in January 2002, which increased salaries and benefits by $7.9 million and the acquisition of Charter Account Systems, Inc. in May 2002, which increased salaries and benefits by $1.0 million. The remaining increase in salaries and benefits is due to an increase in support services personnel and the rising cost of employee benefits.
The net increase in total other expenses can be attributed to an increase in depreciation and amortization of $3.9 million, or 13.5%, in 2002 as compared to 2001, which includes an increase in the amortization of intangible assets of $3.4 million due to acquisitions of EFS, Inc., Idaho Financial Associates, Inc. and Charter Account Systems, Inc. in December 2001, January 2002 and May 2002, respectively. The remaining increase in depreciation and amortization was a result of increased depreciation and amortization of furniture, equipment and leasehold improvements in 2002 as compared to 2001, due to the acquisitions previously described. Trustee and other debt related fees increased $3.8 million, or 29.5%, in 2002 as compared to 2001, as a result of the $4.3 billion increase in average total debt outstanding. Occupancy and communications expense increased $3.9 million, or 52.6%, in 2002 as compared to 2001 due to the acquisitions previously described. Advertising and marketing expenses increased $1.4 million, or 13.7%, in 2002 as compared to 2001 due to an increase in consolidation loan origination activities. Professional services increased $5.9 million, or 175.3%, in 2002 as compared to 2001 as a result of technology-related consulting in 2002 that did not exist in 2001. Consulting fees and support services to related parties decreased $16.6 million, or 56.4%, in 2002 as compared to 2001. This decrease can be attributed to a $9.7 million decrease due to the termination of the support services contract for InTuition Holdings, Inc. and GuaranTec, LLP in December 2001, a $4.8 million decrease in contracted technology services obtained from 5280 Solutions, Inc. related to the consolidation of our servicing platform in December 2001 and a $2.1 million decrease as a result of a reduction in consulting fees for services provided by related parties. Other expenses increased $4.0 million, or 21.5%, due to the acquisitions previously described.
Income tax expense. Income tax expense increased to $27.7 million in 2002 as compared to $5.4 million in 2001 due to the increase in income before income taxes in 2002. Our effective tax rate was 36.5% in 2002 as compared to 41.0% in 2001. The 2002 effective tax rate was lower than the 2001 rate because other net items, not deductible for tax purposes, contributed positively to our effective tax rate in 2002 whereas they contributed negatively in 2001.
Net income. Net income increased to $48.5 million in 2002 from $7.1 million in 2001, for the reasons discussed above.
Financial Condition
At December 31, 2003 compared to December 31, 2002
Total assets increased $2.1 billion, or 22.2%, from $9.8 billion at December 31, 2002 to $11.9 billion at December 31, 2003. This was due to an increase in student loans receivable of $1.9 billion, or 22.2%, from $8.6 billion at December 31, 2002 to $10.5 billion at December 31, 2003. This increase was a result of net growth in consolidation loans of $2.0 billion in 2003. In addition, cash and cash equivalents increased $158.3 million, or 394.1%, from $40.2 million at December 31, 2002 to $198.4 million at December 31, 2003. The increase is a result of the proceeds received from the public stock offering in December 2003.
Total liabilities increased $2.0 billion, or 20.4%, from $9.7 billion at December 31, 2002 to $11.6 billion at December 31, 2003. The growth in liabilities was a result of an increase in bonds and notes payable of $2.0 billion, or 20.3%, from $9.4 billion at December 31, 2002 to $11.4 billion at December 31, 2003. The increase in bonds and notes payable resulted from additional borrowings to fund our growth in student loans in 2003.
Shareholders' equity increased $196.4 million, or 180.0%, from $109.1 million at December 31, 2002 to $305.5 million at December 31, 2003 as a result of net income of $27.1 million in 2003 and the net proceeds from our public stock offering of $167.7 million, less $4 million in stock offering costs. In addition, shareholders' equity also increased as a result of a non-cash stock compensation expense of $5.2 million in 2003.
Liquidity and Capital Resources
We completed an initial public offering of our Class A Common Stock issuing 8,000,000 shares on December 11, 2003. The underwriters exercised their rights related to the over-allotment of shares, resulting in an issuance of an additional 586,800 Class A Common Shares on December 22, 2003. The completion of our initial public stock offering raised net proceeds of $167.7 million, less $4 million of stock offering costs.
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We generally finance our operations through operating cash flow, borrowings under credit facilities and secured financing transactions. We also utilize secured and unsecured operating lines of credit and financing agreements to fund operations and student loan acquisitions. Operating activities provided net cash of $153.0 million in 2003, an increase of approximately $18.8 million from the net cash provided by operating activities of $134.2 million in 2002 due to efficiencies and decreases in our operating expenses with the integration of our acquisitions. Operating cash flows are driven by net income adjusted for various non-cash items such as the provision for loan losses, depreciation and amortization and the non-cash stock compensation expense in 2003.
We have a $35.0 million operating line of credit and a $35.0 million commercial paper conduit under two separate facilities from a group of six large regional and national financial institutions. We had $12.7 million borrowed under the commercial paper conduit at December 31, 2003 and subsequently paid these borrowings off in the first quarter of 2004. The cost of funds associated with our operating lines of credit is higher than that of the secured financing transactions used to fund our student loan portfolio. Our operating lines of credit are generally priced at a spread over LIBOR ranging from 60 to 225 basis points. We believe our operating lines and credit facilities and the growth in our cash flow from operating activities and the initial public stock offering indicates a favorable trend in our available capital resources. As a result of the proceeds received from the initial public offering, a $30 million operating line of credit with a national financial institution was not renewed in February 2004 and we chose not to pursue execution of a commitment we had for a $30 million operating line of credit in late 2003.
In the fourth quarter of 2003, we expanded one of our existing short-term student loan warehousing facilities, which resulted in an increase in the aggregate of all short-term student loan warehousing facilities from $1.05 billion to $1.8 billion. This increased warehouse facility will allow for expansion of our liquidity and capacity for student loan growth. We believe that the expansion of our warehousing capacity and continued access to the asset-backed securities market will provide adequate liquidity to fund our student loan operations for the foreseeable future. At December 31, 2003, we had a loan warehousing capacity of $2.8 billion through 364-day commercial paper conduit programs. Historically, we have renewed our commercial paper conduit programs annually and therefore, do not believe the annual renewal of these contracts present a significant risk to our liquidity.
Our secured financing instruments include commercial paper lines, short-term student loan warehouse programs, variable-rate tax-exempt bonds, fixed-rate, tax-exempt bonds and various asset-backed securities. Of the $11.4 billion of debt outstanding as of December 31, 2003, $9.3 billion was issued under securitization transactions. In 2003 and 2002, we completed three asset-backed securities transactions in each period totaling $2.9 billion and $2.8 billion, respectively. In addition, in January 2004, we completed a $1.0 billion asset-backed securities transaction. Depending on market conditions, we anticipate continuing to access the asset-backed securities markets in 2004 and subsequent years. Securities issued in our securitization transactions are generally priced off a spread to LIBOR or set under an auction procedure related to the bonds and notes. The student loans financed are generally priced on a spread to commercial paper or Treasury bills.
We are limited in the amounts of funds that can be transferred to us by our subsidiaries through intercompany loans, advances or cash dividends. These limitations result from the restrictions contained in trust indentures under debt financing arrangements to which our education lending subsidiaries are parties. We believe these limitations will not affect our operating cash needs. The amounts of cash and investments restricted in the respective reserve accounts of the education lending subsidiaries are shown on the consolidated balance sheets as restricted cash and investments.
The following table summarizes our bonds and notes outstanding as of December 31, 2003:

                                       As of December 31, 2003
                          -----------------------------------------------------
                                         Percent    Line of
                           Carrying        of        credit      Interest rate
                            amount        total      amount           range         Final maturity
                          ----------      ------   ----------      ------------   ------------------
                                                (dollars in thousands)
Variable-rate bonds
  and notes (a):
  Bond and notes
based on indices........  $3,203,859      28.2%    $3,203,859      1.11%--1.87%   05/01/07--01/25/37
  Bond and notes
based on auction........   5,125,270       45.1     5,125,270      1.00%--1.30%   07/01/05--07/01/43
                         -----------              -----------
     Total variable-rate
     bonds and notes....   8,329,129       73.3     8,329,129
Commercial paper and
  other.................   2,064,400       18.2     2,795,000      1.11%--1.40%   05/14/04--09/25/24
Fixed-rate bonds and
  notes(a)..............     927,694        8.1       927,694      5.50%--6.68%   05/01/05--06/01/28
Other secured borrowings      45,235        0.4       110,235      1.30%--6.00%   01/30/04--11/01/05
                         -----------              -----------
     Total.............. $11,366,458              $12,162,058
                         ===========              ===========	

(a) Issued in securitization transactions.

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Total unused commitments under various commercial paper, warehouse and operating line of credit agreements totaled $796 million as of December 31, 2003.
The Company is committed under noncancelable operating leases for certain office and warehouse space and equipment. Our contractual obligations as of December 31, 2003 are as follows:

                                         Less than                                 More than
                             Total         1 year      1-3 years     3-5 years      5 years
                          -----------   -----------   -----------   -----------   -----------
Bonds and notes payable   $11,366,458   $   597,575   $   348,494   $   294,538   $10,125,851
Operating lease
obligations                    16,785         4,950         7,987         3,373           475
                          -----------   -----------   -----------   -----------   -----------
   Total                  $11,383,243   $   602,525   $   356,481   $   297,911   $10,126,326
                          ===========   ===========   ===========   ===========   ===========	

We have commitments with our branding partners, from whom we acquire student loans and to whom we provide marketing and origination services, and forward flow lenders, from whom we acquire student loans and to whom we provide origination services only, which obligate us to purchase loans originated under specific criteria, although our branding partners and forward flow lenders are not obligated to provide us with a minimum amount of loans. These commitments generally run for periods ranging from one to five years and are generally renewable. We are obligated to purchase student loans at current market rates at the respective sellers' requests under various agreements through September 30, 2004. As of December 31, 2003, $287.4 million of student loans were originated under these agreements which we were committed to purchase.
Student Loan Portfolio
The table below describes the components of our loan portfolio:

                                            As of December 31,
                             -------------------------------------------------
                                      2003                     2002
                             -----------------------   -----------------------
                                              Percent                   Percent
                                                of                        of
                               Dollars         total      Dollars        total
                             ------------      -----   ------------      -----
                                           (dollars in thousands)
FFELP:
  Stafford ...............   $  4,901,289       46.9%  $  4,983,021       58.2%
  PLUS/SLS (a) ...........        249,217        2.4        313,100        3.7
  Consolidation ..........      5,073,081       48.5      3,033,607       35.4
Non-FFELP:
  Private loans ..........         91,287        0.9         74,660        0.9
                             ------------      -----   ------------      -----
     Total ...............     10,314,874       98.7      8,404,388       98.2
Unamortized premiums .....        156,594        1.5        167,032        1.9
Allowance for loan losses:
  Allowance -- FFELP .....        (10,795)      (0.1)        (9,970)      (0.1)
  Allowance -- Private ...         (5,231)      (0.1)        (2,030)      --
                             ------------      -----   ------------      -----
     Net .................   $ 10,455,442      100.0%  $  8,559,420      100.0%
                             ============      =====   ============      =====
__________	

(a) Supplemental Loans for Students, or SLS, are the predecessor to unsubsidized Stafford loans.
Activity in the Allowance for Loan Losses
The provision for loan losses represents the periodic expense of maintaining an allowance sufficient to absorb losses, net of recoveries, inherent in the portfolio of student loans.
23
An analysis of our allowance for loan losses is presented in the following table:

                                                                 Year ended December 31,
                                                    --------------------------------------------------
                                                        2003               2002               2001
                                                    ------------       ------------       ------------
                                                                   (dollars in thousands)
Balance at beginning of year ..................     $     12,000       $     10,242       $      3,614
Provision for loan losses:
  FFELP loans .................................            4,275              3,162              3,250
  Private loans ...............................            7,200              2,425                675
                                                    ------------       ------------       ------------
    Total provision for loan losses ...........           11,475              5,587              3,925
Transfer from acquisitions ....................               --                 --              4,866
Charge-offs:
  FFELP loans .................................           (3,450)            (2,570)            (1,742)
  Private loans ...............................           (4,132)            (1,333)              (499)
                                                    ------------       ------------       ------------
    Total charge-offs .........................           (7,582)            (3,903)            (2,241)
Recoveries, private loans .....................              133                 74                 78
                                                    ------------       ------------       ------------
Net charge-offs ...............................           (7,449)            (3,829)            (2,163)
                                                    ------------       ------------       ------------
Balance at end of period ......................     $     16,026       $     12,000       $     10,242
                                                    ============       ============       ============
Allocation of the allowance for loan
losses:
  FFELP loans .................................     $     10,795       $      9,970       $      9,378
  Private loans ...............................            5,231              2,030                864
                                                    ------------       ------------       ------------
    Total allowance for loan losses ...........     $     16,026       $     12,000       $     10,242
                                                    ============       ============       ============
Net charge-offs as a percentage of
average student loans .........................            0.079%             0.047%             0.042%
Total allowance as a percentage of
average student loans .........................            0.170%             0.147%             0.199%
Total allowance as a percentage of
  the ending balance of student loans .........            0.155%             0.143%             0.141%
Private allowance as a percentage of
  the ending balance of private loans .........            5.730%             2.719%             1.413%
Average student loans .........................     $  9,451,035       $  8,171,898       $  5,135,227
Ending balance of student loans ...............     $ 10,314,874       $  8,404,388       $  7,267,055
Ending balance of private loans ...............     $     91,287       $     74,660       $     60,760	

The table below shows the student loan delinquency amounts as of December 31, 2003 and 2002. Delinquencies have the potential to adversely impact our earnings through increased servicing and collection costs and account charge-offs.

                                                             December 31,
                                            ---------------------------------------------
                                                      2003                  2002
                                            ----------------------  ---------------------
                                              Balance     Percent    Balance     Percent
                                            -----------   --------  ----------  ---------
                                                         (dollars in thousands)
FFELP Student Loan Portfolio:
  Loans in school/
grace/deferment(1)........................  $ 2,941,228             $2,293,763
  Loans in forbearance(2).................    1,362,335              1,289,606
  Loans in repayment status:
    Loans current.........................    5,245,316     88.6%    4,002,025     84.3%
    Loans delinquent 31-60 days(3)........      279,435      4.7       307,668      6.5
    Loans delinquent 61-90 days...........      130,339      2.2       146,198      3.1
    Loans delinquent 91 days or greater(4)      264,934      4.5       290,468      6.1
                                            -----------    -----    ----------    -----
    Total loans in repayment..............    5,920,024    100.0%    4,746,359    100.0%
                                            -----------    =====    ----------    =====
    Total FFELP student loan portfolio....  $10,223,587             $8,329,728
                                            ===========             ==========
Private Student Loan Portfolio:
  Loans in school/grace/deferment(1)......  $    25,537             $   30,545
  Loans in forbearance(2).................       14,776                  7,711
  Loans in repayment status:
    Loans current.........................       45,554     89.4%       31,168    85.6%
    Loans delinquent 31-60 days(3)........        2,531      5.0         2,953      8.1
    Loans delinquent 61-90 days...........        1,556      3.0         1,259      3.5
    Loans delinquent 91 days or greater(4)        1,333      2.6         1,024      2.8
                                            -----------    -----    ----------    -----
  Total loans in repayment................       50,974    100.0%       36,404    100.0%
                                            -----------    =====    ----------    =====
    Total private student loan portfolio..  $    91,287             $  74,660
                                            ===========             ==========	

(1) Loans for borrowers who still may be attending school or engaging in other permitted educational activities and are not yet required to make payments on the loans, e.g., residency periods for medical students or a grace period for bar exam preparation.
(2) Loans for borrowers who have temporarily ceased making full payments due to hardship or other factors, according to a schedule approved by the servicer consistent with the established loan program servicing procedures and policies.
(3) The period of delinquency is based on the number of days scheduled payments are contractually past due and relate to repayment loans, that is, receivables not charged off, and not in school, grace, deferment or forbearance.
(4) Loans delinquent 91 days or greater include loans in claim status, which are loans which have gone into default and have been submitted to the guaranty agency for FFELP loans or the private insurer for private loans to process the claim for payment.
24
Origination and Acquisition
Our student loan portfolio increases through various channels, including originations through our direct channel and acquisitions through our branding partner channel, our forward flow channel, spot purchases and the secondary market. Our portfolio also increases with the addition of portfolios acquired through whole company or subsidiary acquisitions.
One of our primary objectives is to focus on originations through our direct channel and acquisitions through our branding partner channel. We have extensive and growing relationships with many large financial and educational institutions which are active in the education finance industry. Our branding relationships and forward flow relationships include Union Bank, an affiliate of ours, as well as many schools and national and regional financial institutions. Loss of a strong relationship, like that with a significant branding partner, such as Union Bank, or with schools such as University of Phoenix and Nova Southeastern University from which we directly or indirectly acquire a significant volume of student loans, could result in an adverse effect on our volume derived from our branding partner channel. For example, Nova Southeastern University, from which we purchased FFELP loans (through its relationship with Union Bank) comprising approximately 5.6% of our total student loan channel acquisitions in 2003, has informed us and Union Bank, the direct acquirer of the student loans, of its intent to not renew its sale commitment starting January 2007, in order to make a request for a proposal to potential purchasers, including Union Bank and us.
The table below sets forth the increase in 2003, 2002 and 2001 of loans originated or acquired through each of our channels:

                                           Year ended December 31,
                               ------------------------------------------------
                                   2003              2002              2001
                               ------------      ------------      ------------
                                             (dollars in thousands)

Beginning balance ..........   $  8,404,388      $  7,267,055      $  3,541,831
                               ------------      ------------      ------------
Direct channel:
  Stafford/PLUS loan
    originations ...........        236,855           224,827            84,599
  Consolidation loan
    originations ...........      2,266,499           859,120            55,715
Branding partner channel ...        808,843           521,023           524,964
Forward flow channel .......        602,777           577,603           484,058
Other channels .............        338,040           483,213           299,271
                               ------------      ------------      ------------
  Total channel acquisitions      4,253,014         2,665,786         1,448,607
                               ------------      ------------      ------------
Loans acquired in
subsidiary acquisitions ....             --                --         2,919,845
Repayments, claims,
  capitalized interest and
    other(a) ...............     (2,342,528)       (1,528,453)         (643,228)
                               ------------      ------------      ------------
Ending balance .............   $ 10,314,874      $  8,404,388      $  7,267,055
                               ============      ============      ============
------------	

(a) Includes repayments on all consolidation loans.
Student Loan Spread Analysis
The following table analyzes the student loan spread on our portfolio of student loans in 2003, 2002 and 2001. This table represents the spread on assets earned in conjunction with the liabilities used to fund the assets. Maintenance of the spread on assets is a key factor in maintaining and growing our income.

                                           Year ended December 31,
                              -----------------------------------------------
                                   2003             2002            2001
                              -------------    -------------    -------------

Student loan yield .......             4.98%            5.94%            6.71%
Consolidation rebate fees             (0.43)           (0.31)           (0.23)
Premium amortization .....            (0.73)           (0.67)           (0.28)
                              -------------    -------------    -------------
Student loan net yield ...             3.82             4.96             6.20
Student loan cost of funds            (1.86)           (2.59)           (3.95)
                              -------------    -------------    -------------
Student loan spread,
  including variable-rate
  floor income ...........             1.96             2.37             2.25
Variable-rate floor income            (0.14)           (0.61)           (0.58)
                              -------------    -------------    -------------
Student loan spread,
  excluding variable-rate
  floor income ...........             1.82%            1.76%            1.67%
                              =============    =============    =============
Average balance of student
loans (in thousands) .....    $   9,451,035    $   8,171,898    $   5,135,227	

25
Risks
Risk Related to Consolidation Loans
Our student loan origination and lending activities could be significantly impacted by the reauthorization of the Higher Education Act relative to the single holder rule. For example, if the single holder rule, which generally restricts a competitor from consolidating loans away from a holder that owns all of a student's loans, were abolished, a substantial portion of our non-consolidated portfolio would be at risk of being consolidated away by a competitor. On the other hand, abolition of the rule would also open up a portion of the rest of the market and provide us with the potential to gain market share. The portion of the rest of the market that would be opened up to us, as measured in aggregate principal amount of student loans, would be greater than the portion of our non-consolidated portfolio that would be at risk of being consolidated by a competitor. Other potential changes to the Higher Education Act which could impact us include, without limitation:
o allowing refinancing of consolidation loans, which would open approximately 49% of our portfolio to such refinancing; and
o allowing for variable-rate consolidation loans and extended repayment terms of Stafford loans, which would lead to less loans lost through consolidation of our portfolio, but would also decrease our consolidation opportunities.
In addition, our efforts to expand into the consolidation market have been affected by recently amended Federal Trade Commission rules and similar state regulations providing for so-called "do not call" registries. Under these rules, consumers may have their phone numbers added to a "do not call" registry, and we would generally be prohibited from calling any such consumers to market our products and services. This rule restricts one form of solicitation of new customers for our products and services.
Political/Regulatory Risk
Pursuant to the terms of the Higher Education Act, the FFEL Program is periodically amended, and the Higher Education Act must be reauthorized by Congress every five years in order to prevent sunset of that Act. Changes in the Higher Education Act made in the two most recent reauthorizations have included reductions in the student loan yields paid to lenders, increased fees paid by lenders and a decreased level of federal guarantee. Future changes could result in further negative impacts on our business. Moreover, there can be no assurance that the provisions of the Higher Education Act, which is scheduled to expire on September 30, 2004, will be reauthorized. While Congress has consistently extended the effective date of the Higher Education Act, it may elect not to reauthorize the Department's ability to provide interest subsidies, special allowance payments and federal guarantees for student loans. Such a failure to reauthorize would reduce the number of federally guaranteed student loans available for us to originate and/or acquire in the future.
Specific proposed legislation that could have a material effect on our operations, if enacted, include:
o initiatives aimed at supporting the FDL program to the detriment of the FFEL program;
o restrictions on payments made under the FFEL program to achieve reductions in federal spending;
o allowing for increased borrower limits, which may provide opportunities for increasing the average size of our future loan originations;
o eliminating variable-rate floor income as well as the 9.5% floor interest rate on loans financed with funds from pre-1993 tax-exempt financings;
o changes to the single holder rule and other FFEL program rates and terms as discussed above under "-- Risk Related to Consolidation Loans;" and
o changes to the single holder rule as it relates to the FFELP and Direct loans as discussed below.
The Department has published written correspondence, dated March 15, 2004 to the National Council of Higher Education Loan Programs ("NCHELP") and also to us, by a different author at the Department. The two letters are substantially identical, stating the Department's position that, effective as of May 2004, "a lender may make a consolidation loan to an eligible borrower only if the lender holds an outstanding loan of that borrower which is selected by the borrower for consolidation." The Department further took the position that this requirement cannot be met if the borrower is only consolidating loans made pursuant to the Higher Education Act other than FFELP loans. In subsequent discussions with the Department, the author of the March correspondence to NCHELP made a verbal clarification that the Department did not intend the March correspondence to prohibit consolidation of Direct Loans. This
26
clarification has not yet been made in writing. We believe that the consolidation of Direct Loans, without consolidation of other FFELP loans at the same time, is legally permissible. However, in the event the Department does not clarify its intent that the March correspondence does not apply to the consolidation of Direct Loans, our practice of consolidating Direct Loans could be significantly limited after May 1, 2004. Likewise, in the event the Department was to publish an interpretation of the law that a FFELP lender may not consolidate only Direct Loans, this would also have a significant impact on our consolidation loan origination volume in the future. Currently, approximately 60% of our affinity agreements with alumni associations are schools that participate in Direct Loans.
In addition, the Department oversees and implements the Higher Education Act and periodically issues regulations and interpretations of that Act. Changes in such regulations and interpretations could negatively impact our business.
Liquidity Risk
Our primary funding needs are those required to finance our student loan portfolio and satisfy our cash requirements for new student loan originations and satisfy our cash requirements for new student loan originations and acquisitions, operating expenses and technological development. Our operating and warehousing financings are provided by third parties. The term of each conduit facility is less than one year and each facility is renewable at the option of the lender and may be terminated at any time for cause. There can be no assurance that we will be able to maintain such conduit facilities, find alternative funding or increase the commitment level of such facilities, if necessary. While our conduit facilities have historically been renewed for successive terms, there can be no assurance that this will continue in the future.
In addition, we have historically relied upon, and expect to continue to rely upon, asset-backed securitizations as our most significant source of funding for student loans on a long-term basis. A major disruption in the auction markets, such as insufficient potential bid orders to purchase all the notes offered for sale or being repriced, could subject us to interest costs substantially above the anticipated and historical rates paid on these types of securities. A change in the capital markets could limit our ability to raise funds or significantly increase the cost of those funds, affecting our ability to acquire student loans.
Credit Risk
We bear full risk of losses experienced with respect to the unguaranteed portion of our FFELP loans. Losses on our private loans will be borne by us, with the exception of certain privately insured loans, which constitutes a minority of our private loan portfolio. The loan loss pattern on our private loan portfolio is not as developed as that on our FFELP loan portfolio. The performance of student loans in our portfolio is affected by the economy, and a prolonged economic downturn may have an adverse effect on the credit performance of these loans. In addition, our private loans are underwritten and priced according to risk, using credit scoring systems. We have defined underwriting and collection policies, and ongoing risk monitoring and review processes for all private loans. Management believes that is has provided sufficient allowances to cover the losses that may be experienced in both its FFELP and private loan portfolios. There is, however, no guarantee that such allowances are sufficient enough to account for actual losses.
Operational Risk
Operational risk can result from regulatory compliance errors, technology failures, breaches of internal control system, and the risk of fraud or unauthorized transactions. Operational risk includes failure to comply with regulatory requirements of the Higher Education Act, rules and regulations of the agencies that act as guarantors on our student loans and federal and state consumer protection laws and regulations on our private loans. Such failure to comply, irrespective of the reason, could subject us to loss of the federal guarantee on FFELP loans, costs of curing servicing deficiencies or remedial servicing, suspension or termination of our right to participate in the FFEL program or to participate as a servicer, negative publicity and potential legal claims or actions brought by our servicing customers and borrowers.
We have the ability to cure servicing deficiencies and our historical losses have been small. In addition, our servicing and guarantee servicing activities are highly depended on our information systems, and we face the risk of business disruption should there be extended failures of our systems. However, we have well-developed and tested business recovery plans to mitigate this risk. We also manage operational risk through our risk management and internal control processes covering our product and service offerings. These internal control processes are documented and tested regularly to ensure maintenance of internal controls over our processes.
27
Market and Interest Rate Risk
Our primary market risk exposure arises from fluctuations in our borrowing and lending rates, the spread between which could be impacted by shifts in market interest rates. Because we generate the majority of our earnings from the spread between the yield we receive on our portfolio of student loans and the cost of funding these loans, the interest sensitivity of our balance sheet is a key profitability driver. The majority of student loans have variable-rate characteristics in certain interest rate environments. Some of our student loans include fixed-rate components depending upon the rate reset provisions, or, in the case of consolidation loans, are fixed at the weighted average interest rate of the underlying loans at the time of consolidation. The table below sets forth our loan assets and debt instruments by rate characteristics:

                                                As of December 31,
                                  --------------------------------------------
                                      2003       Percent      2002      Percent
                                  -----------    -------   ----------   -------
                                             (dollars in thousands)
Fixed-rate loan assets(a) ....    $ 5,532,497     53.6%    $3,320,121     39.5%
Variable-rate loan assets ....      4,782,377      46.4     5,084,267     60.5
                                  -----------     -----    ----------    -----
                                  $10,314,874    100.0%    $8,404,388    100.0%
                                  ===========     =====    ==========    =====

Fixed-rate debt instruments ..    $   927,694       8.2%   $1,122,881     11.9%
Variable-rate debt instruments     10,438,764      91.8     8,324,801     88.1
                                  -----------     -----    ----------    -----
                                  $11,366,458     100.0%   $9,447,682    100.0%
                                  ===========     =====    ==========    =====
------------	

(a) Includes approximately $561 million and $430 million of variable-rate loan assets, which are classified as fixed-rate loan assets as a result of being financed by variable-rate, tax-exempt bonds subject to a 9.5% minimum yield as of December 31, 2003 and 2002.
Historically, we followed a policy of funding the majority of our student loan portfolio with variable-rate debt. In the current low interest rate environment, our FFELP loan portfolio is yielding excess income primarily due to the reduction in interest rates on the variable-rate liabilities funding student loans at the fixed borrower rate and due to consolidation loans earning interest at a fixed rate to the borrower. Therefore, absent utilizing derivative instruments, in a low interest rate environment, a rise in interest rates will have an adverse effect on earnings and fair values. In higher interest rate environments, where the interest rate rises above the borrower rate and the fixed-rate loans become variable rate and are effectively matched with variable-rate debt, the impact of rate fluctuations is substantially reduced.
We attempt to match the interest rate characteristics of pools of loan assets with debt instruments of substantially similar characteristics, particularly in rising interest rate markets. Due to the variability in duration of our assets and varying market conditions, we do not attempt to perfectly match the interest rate characteristics of the entire loan portfolio with the underlying debt instruments. We have adopted a policy of periodically reviewing the mismatch related to the interest rate characteristics of our assets and our liabilities and our opinion as to current and future market conditions. Based on those factors, we will periodically use derivative instruments as part of overall risk management strategy to manage risk arising from our fixed-rate and variable-rate financial instruments.
Derivative instruments that are used as part of our interest rate risk management strategy include interest rate swaps and basis swaps. We account for our derivative instruments in accordance with SFAS No. 133. SFAS No. 133 requires that changes in the fair value of derivative instruments be recognized currently in earnings unless specific hedge accounting criteria as specified by SFAS No. 133 are met. Management has structured all of our derivative transactions with the intent that each is economically effective. However, the majority of our derivative instruments do not qualify for hedge accounting under SFAS No. 133; consequently, the change in fair value of these derivative instruments of $1.2 million are included in the derivative market value adjustment in other income in the statement of income for the year ended December 31, 2003 and have reduced our net income. At December 31, 2003, we accounted for one interest rate swap as a cash flow hedge in accordance with SFAS No. 133. Gains and losses on the effective portion of this qualifying hedge is accumulated in other comprehensive income and reclassified to current period earnings over the period which the stated hedged transactions impact earnings. Ineffectiveness is recorded to earnings.
The following table summarizes our outstanding derivative instruments as of December 31, 2003:

                Notional amounts by product type
                --------------------------------
                 Fixed/
                floating     Basis
   Maturity     swaps(a)    swaps(b)     Total
-------------   -------     -------      -------
                       (dollars in millions)
2004........    $ 1,000     $   500      $ 1,500
2005........        150       1,000        1,150
2006........         --         500          500
                -------     -------      -------
  Total.....    $ 1,150     $ 2,000      $ 3,150
                =======     =======      =======
Fair value (c)  $   0.6     $  (1.3)     $  (0.7)
                =======     =======      =======	

28

(a) A fixed/floating swap is an interest rate swap in which we agree to pay a fixed rate in exchange for a floating rate. The interest rate swap converts a portion of our variable-rate debt (equal to the notional amount of the swap) to a fixed rate for a period of time fixing the relative spread between a portion of our student loan assets and the converted fixed-rate liability.
(b) A basis swap is an interest rate swap agreement in which we agree to pay a floating rate in exchange for another floating rate, based upon different market indices. We have employed basis swaps to limit our sensitivity to dramatic fluctuations in the underlying indices used to price a portion of our variable-rate assets and variable-rate debt.
(c) Fair value is determined from market quotes from independent security brokers. Fair value indicates an estimated amount we would receive (pay) if the contracts were cancelled or transferred to other parties.
Effective January 14, 2004, we entered into five additional interest rate swaps with a combined notional amount of $6.0 billion that mature in 2004. These interest rate swaps do not qualify for hedge accounting under SFAS No. 133.
As a result of our interest rate management activities, we expect the change in pre-tax net income resulting from 100 basis point and 200 basis point increases in interest rates will not result in a proportional decrease in net income due to the effective switch of some variable-rate loans to fixed-rate loans. The change would also be less dramatic had the interest rate management strategies and derivative products employed in 2003 been in place for the entire years ended December 31, 2003, 2002 and 2001.
The following tables summarize the effect on our earnings for the years ended December 31, 2003, 2002 and 2001, based upon a sensitivity analysis performed by us assuming a hypothetical increase and decrease in interest rates of 100 basis points and an increase in interest rates of 200 basis points while funding spreads remain constant. The effect on earnings was performed on our variable-rate assets and liabilities and include the effects of our derivative instruments in existence at December 31, 2003. The following tables do not include the effects of the derivatives entered into in January 2004.

                                                                Year ended December 31, 2003
                                        -------------------------------------------------------------------------
                                         Change from decrease      Change from increase      Change from increase
                                         of 100 basis points       of 100 basis points       of 200 basis points
                                        ---------------------     ---------------------     --------------------
                                        Dollars       Percent     Dollars       Percent     Dollars      Percent
                                        --------      -------     --------      -------     --------     -------
                                                                    (dollars in thousands)
Effect on earnings:
  Increase (decrease) in
    pre-tax income before SFAS
    No.133 change in fair value ...     $ 34,719       75.0%      $(18,256)     (39.4)%     $(30,356)    (65.6)%
  SFAS No.133 change in fair value      $ (8,382)     (18.1)%     $  6,007       13.0%      $ 13,202      28.5%
                                        --------      -----       --------       ----       --------      ----
  Increase (decrease) in net
    income before taxes ...........     $ 26,337       56.9%      $(12,249)     (26.6)%     $(17,154)    (37.1)%
                                        --------      -----       --------       ----       --------      ----
  Increase (decrease) in basic
    and diluted earnings per share      $   0.37                  $  (0.17)                 $   (0.24)
                                        ========                  ========                  =========
                                                               Year ended December 31, 2002
                                        -------------------------------------------------------------------------
                                         Change from decrease      Change from increase      Change from increase
                                         of 100 basis points       of 100 basis points       of 200 basis points
                                        ---------------------     ---------------------     --------------------
                                        Dollars       Percent     Dollars       Percent     Dollars      Percent
                                        --------      -------     --------      -------     --------     -------
Effect on earnings:
  Increase (decrease) in
    pre-tax income before SFAS
    No.133 change in fair value ...     $ 15,119       18.6%      $(11,553)     (14.2)%     $(20,236)    (24.9)%
  SFAS No. 133 change in fair value     $     --        0.0       $     --          0       $     --       0.0
                                        --------      -----       --------       ----       --------      ----
  Increase (decrease) in net
    income before taxes ...........     $ 15,119       18.6%      $(11,553)     (14.2)%     $(20,236)    (24.9)%
                                        --------      -----       --------       ----       --------      ----
  Increase (decrease) in basic
    and diluted earnings per share     $    0.22                  $  (0.16)                 $  (0.29)
                                       =========                  ========                  ========
                                                              Year ended December 31, 2001
                                        -------------------------------------------------------------------------
                                         Change from decrease      Change from increase      Change from increase
                                         of 100 basis points       of 100 basis points       of 200 basis points
                                        ---------------------     ---------------------     --------------------
                                        Dollars       Percent     Dollars       Percent     Dollars      Percent
                                        --------      -------     --------      -------     --------     -------
Effect on earnings:
Effect on earnings:
  Increase (decrease) in
    pre-tax income before SFAS
    No.133 change in fair value ...      $ 2,054       10.3%       $  (749)       (3.7)%     $(1,975)     (9.9)%
  SFAS No. 133 change in fair value      $    --        0.0        $    --         0.0       $    --       0.0%
                                        --------      -----       --------       ----       --------      ----
  Increase (decrease) in net
    income before taxes ...........      $ 2,054       10.3%       $  (749)      (3.7)%      $(1,975)     (9.9)%
                                        --------      -----       --------       ----       --------      ----
  Increase (decrease) in basic
    and diluted earnings per share       $  0.03                   $ (0.01)                  $ (0.03)
                                         =======                   =======                   =======	

29
The tables below set forth our variable-rate assets and liabilities categorized by the reset date of the underlying index. Fixed-rate assets and liabilities are categorized based on their maturity dates. An interest rate gap is the difference between volumes of assets and volumes of liabilities maturing or repricing during specific future time intervals. The following gap analysis reflects our interest rate-sensitive positions as of December 31, 2003 and 2002 and is not necessarily reflective of the positions that existed throughout the period.

                                                               As of December 31, 2003
                             -----------------------------------------------------------------------------------------
                                                           Interest rate sensitivity period
                             -----------------------------------------------------------------------------------------
                              3 months         3 months        6 months        1 to 2           2 to 5         Over 5
                              or less         to 6 months      to 1 year        years            years          years
                             -----------      ---------        --------        --------        --------        --------
                                                                    (dollars in thousands)
Interest-sensitive assets:
  Student loans ..........   $10,455,442      $      --        $     --        $     --        $     --        $     --
  Cash and investments ...     1,155,215             --              --              --              --              --
                             -----------      ---------        --------        --------        --------        --------
     Total interest-
       sensitive assets...    11,610,657             --              --              --              --              --
                             -----------      ---------        --------        --------        --------        --------
Interest-sensitive
  liabilities:
  Short-term borrowings ..    10,438,764             --              --              --              --              --
  Long-term notes ........        61,237         54,355         108,167         206,484         311,588         185,863
                             -----------      ---------        --------        --------        --------        --------
  Total interest-
    sensitive liabilities     10,500,001         54,355         108,167         206,484         311,588         185,863
                             -----------      ---------        --------        --------        --------        --------
Period gap ...............     1,110,656        (54,355)       (108,167)       (206,484)       (311,588)       (185,863)
Cumulative gap ...........     1,110,656      1,056,301         948,134         741,650         430,062         244,199
Ratio of
  interest-sensitive
  assets to interest-
  sensitive liabilities ...        110.6%           --%             --%             --%             --%             --%
                             ===========      =========        ========        ========        ========        ========
Ratio of cumulative gap
  to total interest-sensitive
  assets ...................        9.6%           9.1%            8.2%            6.4%            3.7%            2.1%
                             ===========      =========        ========        ========        ========        ========

                                                              As of December 31, 2002
                             -----------------------------------------------------------------------------------------
                                                           Interest rate sensitivity period
                             -----------------------------------------------------------------------------------------
                              3 months         3 months        6 months        1 to 2           2 to 5         Over 5
                              or less         to 6 months      to 1 year        years            years          years
                             -----------      ---------        --------        --------        --------        --------
                                                                  (dollars in thousands)
Interest-sensitive assets:
  Student loans .............   $8,559,420     $      --       $     --       $     --       $     --       $     --
  Cash and investments ......      916,572            --             --             --             --             --
                               -----------     ---------       --------       --------       --------       --------
     Total interest-
       sensitive assets .....    9,475,992            --             --             --             --             --
                               -----------     ---------       --------       --------       --------       --------
Interest-sensitive
  liabilities:
  Short-term borrowings .....    8,324,801            --             --             --             --             --
  Long-term notes ...........       48,645        48,645         97,289        223,759        436,617        267,926
                               -----------     ---------       --------       --------       --------       --------
  Total interest-
    sensitive liabilities ...    8,373,446        48,645         97,289        223,759        436,617        267,926
                               -----------     ---------       --------       --------       --------       --------
Period gap ..................    1,102,546       (48,645)       (97,289)      (223,759)      (436,617)      (267,926)
Cumulative gap ..............    1,102,546     1,053,901        956,612        732,853        296,236         28,310
Ratio of
  interest-sensitive
  assets to interest-
  sensitive liabilities .....        113.2%          --%            --%            --%            --%            --%
                               ===========      =========      ========       ========       ========       ========
Ratio of cumulative gap
  to total interest-sensitive
  assets ....................         11.6%         11.1%          10.1%           7.7%           3.1%           0.3%
                               ===========      =========      ========       ========       ========       ========	

Critical Accounting Policies
This Management's Discussion and Analysis of Financial Condition and Results of Operations discusses our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America, or GAAP. The preparation of these financial statements requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the reported amounts of income and expenses during the reporting periods. We base our estimates and judgments on historical experience and on various other factors that we believe are reasonable under the circumstances. Actual results may differ from these estimates under varying assumptions or conditions. Note 3 of the notes to the consolidated financial statements includes a summary of the significant accounting policies and methods used in the preparation of our consolidated financial statements.
On an on-going basis, management evaluates its estimates and judgments, particularly as they relate to accounting policies that management believes are most "critical" -- that is, they are most important to the portrayal of our financial condition and results of operations and they require management's most difficult, subjective or complex judgments, often as a result of the need to make estimates about the effect of matters that are inherently uncertain. These accounting policies include securitization accounting,
30
determining the level of the allowance for loan losses and determining the level of the program reimbursement reserve.
Securitization Accounting
We use the issuance of asset-backed securities, commonly called securitization transactions, as a key component of our financing strategy. In conjunction with these transactions, we transfer student loans to a trust, which issues bonds backed by the student loans. Our securitization transactions do not qualify for sale treatment under SFAS No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities-a Replacement of SFAS No. 125, as the trusts continue to be under our effective control and as such we do not record or recognize gain on sale in conjunction with the transaction, but rather treat the transfers as secured borrowings. All of the financial activities and related assets and liabilities, including debt, of the securitizations are reflected and consolidated in our financial statements. Servicing, administrative support services and other intercompany activities have been eliminated in accordance with generally accepted accounting principles.
Allowance for Loan Losses
The allowance for loan losses represents management's estimate of probable losses on student loans. This evaluation process is subject to numerous estimates and judgments. In making such estimates and judgments, management considers such things as the value and character of loans outstanding, past loan loss experience and general economic conditions. We evaluate the adequacy of the allowance for losses on our FFELP loan portfolio separately from our private loan portfolio. Historical delinquencies and credit loss experience are also considered when reviewing the current aging of the portfolio, together with analyses that reflect current trends and conditions.
In contrast to the determination of our allowance for loan losses for our private loan portfolio, when we determine the allowance for our FFELP loan portfolio, we consider trends in student loan claims rejected for payment by guaranty agencies and the amount of FFELP loans subject to the 2% risk sharing. The allowance is based on periodic evaluations of our loan portfolio considering past experience, changes to federal student loan programs, current economic conditions and other relevant factors.
In determining the adequacy of the allowance for loan losses on private loans, we consider several factors including: loans in repayment versus those in non-paying status; months in repayment; delinquency status; type of program; current economic conditions; and trends in defaults in the portfolio based on our experience and industry data.
The allowance for FFELP and private loans is maintained at a level management believes is adequate to provide for estimated probable credit losses inherent in the loan portfolio. This evaluation is inherently subjective, as it requires estimates that may be susceptible to significant changes.
Program Reimbursement Reserve
The program reimbursement reserve represents the amount that management estimates we will be required to repay to lenders due to our failure to follow prescribed due diligence procedures and servicing activities prescribed by the Higher Education Act. Failure to meet certain due diligence requirements that must be followed to maintain the Department guarantee on the loans will cause a loss of the guarantee on the loans and potential loss to us if we are unable to cure the deficiency under procedures prescribed by the federal government.
This evaluation process is subject to numerous estimates and judgments. In making these estimates and judgments, management considers such factors as the outstanding loan volume that we service, servicing loss experience, cure experience, portfolio default rates and general economic conditions. The program reimbursement reserve is determined based on a process that begins with an estimate of the probable losses on serviced student loans. This estimate is based on the weighted average historical loss rates for the past ten years, current portfolio delinquency rates and other economic conditions that provide information on the expected servicing losses. The estimated loss rate is applied to the student loans currently serviced to derive a gross estimated servicing loss. The estimated servicing loss is then reduced by the estimated cure rate on such claims. The estimated cure rate is based on the weighted average historical cure rates for the past ten years to derive a reasonable estimate of the expected cure rate. The gross servicing losses net of the estimated cures will provide the estimated servicing reimbursement reserve that we recognize.
The program reimbursement reserve reflects assumptions and estimates we believe are reasonable in light of historical servicing errors and known trends with respect to student loans serviced. However, these estimates and assumptions are inherently subjective and may be susceptible to significant changes. Management continually measures expected losses against actual losses and assumptions are revised accordingly. Management believes that the program reimbursement reserve is adequate to cover probable losses in the portfolio of student loans serviced.
31
Recent Accounting Pronouncements
Early Extinguishment of Debt
In April 2002, the Financial Accounting Standard Board, or FASB, issued SFAS No. 145, Rescission of FASB Statements Nos. 4, 44 and 64, Amendment of FASB Statement No. 13, and Technical Corrections. This statement rescinds FASB Statement No. 4, Reporting Gains and Losses from Extinguishment of Debt and an amendment of that statement, FASB Statement No. 64, Extinguishments of Debt Made to Satisfy Sinking-Fund Requirements. The statement also rescinds FASB Statement No. 44, Accounting for Intangible Assets of Motor Carriers and amends FASB Statement No. 13, Accounting for Leases to eliminate an inconsistency between the required accounting for sale-leaseback transactions and the required accounting for certain lease modifications that have economic effects that are similar to sale-leaseback transactions. This statement also amends other existing authoritative pronouncements to make various technical corrections, clarify meanings or describe their applicability under changed conditions. The provisions of SFAS No. 145 related to the rescission of FASB No. 4 are effective for fiscal years beginning after May 15, 2002. The provisions of SFAS No. 145 related to FASB No. 13 are effective for transactions occurring after May 15, 2002. All other provisions of SFAS No. 145 are effective for financial statements issued on or after May 15, 2002. The adoption of SFAS No. 145 did not have a material impact on our financial statements.
Accounting for Costs Associated with Exit or Disposal Activities
In June 2002, FASB issued SFAS No. 146, Accounting for Costs Associated with Exit or Disposal Activities. SFAS No. 146 requires that a liability for costs associated with exit or disposal activities be recognized when the liability is incurred. Previously, generally accepted accounting principles provided for the recognition of such costs at the date of management's commitment to an exit plan. In addition, SFAS No. 146 requires that the liability be measured at fair value and be adjusted for changes in estimated cash flows. The provisions of the new standard are effective for exit or disposal activities initiated after December 31, 2002. It is not expected that SFAS No. 146 will materially affect our financial statements.
Accounting for Stock-Based Compensation
In December 2002, the FASB issued SFAS No. 148, Accounting for Stock-Based Compensation -- Transition and Disclosure, an Amendment to FASB Statement No.
123. SFAS No. 148 requires annual disclosures about the method of accounting for stock-based compensation and tabular information about the effect of the method accounting for stock-based compensation on net income and earnings per share, including pro forma amounts, in the "Summary of Significant Accounting Policies." On a quarterly basis, SFAS No. 148 requires prominent disclosure in tabular form of the effect of the method of stock-based compensation on net income and earnings per share for all periods presented as accounted for under APB Opinion No. 25. The disclosures required by SFAS 148 will be made in the financial statements to the extent required for shares when issued under the recently adopted Employee Share Purchase Plan.
Accounting for Guarantees
In November 2002, the FASB issued FASB Interpretation (FIN) No. 45, Guarantor's Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others. FIN No. 45 identifies characteristics of certain guarantee contracts and requires that a liability be recognized at fair value at the inception of such guarantees for the obligations undertaken by the guarantor. Additional disclosures also are prescribed for certain guarantee contracts. The initial recognition and initial measurement provisions of FIN No. 45 are effective for those guarantees issued or modified after December 31, 2002. The disclosure requirements of FIN No. 45 were effective for us as of December 31, 2002. Disclosures required by FIN No. 45 are included in note 16 of the notes to the consolidated financial statements related to the guarantee of an affiliate's liabilities to an unrelated third party. We do not believe such guarantee required a liability to be recognized under FIN No. 45. The adoption of FIN No. 45 did not have a material effect on our financial statements.
Consolidation of Variable Interest Entities
In January 2003, the FASB issued FIN No. 46, Consolidation of Variable Interest Entities. FIN No. 46 clarifies the application of Accounting Research Bulletin No. 51, Consolidated Financial Statements, to certain entities in which equity investors do not have the characteristics of a controlling financial interest or do not have sufficient equity at risk for the entity to finance its activities without additional subordinated financial support from other parties, which are referred to as variable interest entities. Variable interest entities are required to be consolidated by their primary beneficiaries. The primary beneficiary of a variable interest entity is the party that absorbs a majority of the entity's expected losses, receives a majority of its expected residual returns, or both, as a result of holding variable interests. FIN No. 46 also requires new disclosures about variable interest entities. The implementation date was deferred until December 31, 2003 for calendar year companies. In December 2003, the FASB issued revised interpretation No. 46 (FIN 46R), which addresses how a business enterprise should evaluate whether it has a controlling financial interest in an entity through means
32
other than voting rights and accordingly should consolidate this entity. The clarifications and modifications would apply to periods ending after December 31, 2003. FIN No. 46 and 46R will not have a material effect on our financial statements.
Statement of Financial Accounting Standards No. 149 -- Amendment of Statement 133 on Derivative Instruments and Hedging Activities
This Statement amends and clarifies financial accounting and reporting for derivative instruments, including certain derivative instruments embedded in other contracts (collectively referred to as derivatives) and for hedging activities under SFAS No. 133, Accounting for Derivative Instruments and Hedging Activities. This Statement is effective for contracts entered into or modified after June 30, 2003, except as stated below and for hedging relationships designated after June 30, 2003. In addition, except as stated below, all provisions of this Statement should be applied prospectively. The provisions of this Statement that relate to SFAS No. 133 implementation issues that have been effective for fiscal quarters that began prior to June 15, 2003, should continue to be applied in accordance with their respective effective dates. In addition, paragraphs 7(a) and 23(a) of SFAS No. 133, which relate to forward purchases or sales of when-issued securities or other securities that do not yet exist, should be applied to both existing contracts and new contracts entered into after June 30, 2003. The adoption of SFAS No. 149 did not have a significant impact on our financial statements.
Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity
In May 2003, the FASB issued SFAS No 150, Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity. SFAS No. 150 establishes standards for how an issuer classifies and measures certain financial instruments with characteristics of both liabilities and equity. It requires that an issuer classify a financial instrument that is within its scope as a liability, or an asset in some circumstances. SFAS No. 150 is effective for financial instruments entered into or modified after May 31, 2003, and otherwise is effective at the beginning of the first interim period beginning after June 15, 2003. We have adopted the standard effective July 1, 2003. The adoption of SFAS No. 150 did not have a significant impact on our financial statements.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Included within Item 7, Management's Discussion and Analysis of Financial Condition and Results of Operations.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Reference is made to the consolidated financial statements listed under the heading "(a) 1. Consolidated Financial Statements" of Item 15 of this Report, which consolidated financial statements are incorporated into this Report by reference in response to this Item 8.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
ITEM 9a. CONTROLS AND PROCEDURES
Under supervision and with the participation of certain members of the Company's management, including the co-chief executive officers and the chief financial officer, the Company completed an evaluation of the effectiveness of the design and operation of its disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) to the Securities Act). Based on this evaluation, the Company's co-chief executive officers and chief financial officer believe that the disclosure controls and procedures were effective as of the end of the period covered by this Report with respect to timely communication to them and other members of management responsible for preparing periodic reports and material information required to be disclosed in this Report as it relates to the Company and its consolidated subsidiaries.
There was no change in the Company's internal control over financial reporting during the Company's last fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Company's internal control over financial reporting.
The effectiveness of the Company's or any system of disclosure controls and procedures is subject to certain limitations, including the exercise of judgment in designing, implementing and evaluating the controls and procedures, the assumptions used in identifying the likelihood of future events, and the inability to eliminate misconduct completely. As a result, there can be no assurance that the Company's disclosure controls and procedures will prevent all errors or fraud or ensure that all material information will be made known to appropriate management in a timely fashion. By their nature, the Company's or any system of disclosure controls and procedures can provide only reasonable assurance regarding management's control objectives.
33
 
PART III.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information as to the directors and executive officers of the Company set forth under the captions "PROPOSAL 1--ELECTION OF DIRECTORS--Nominees" and "Executive Officers" in the Proxy Statement to be filed on Schedule 14A, no later than 120 days after the end of it's the Company's fiscal year with the SEC, relating to the Company's Annual Meeting of Shareholders scheduled to be held on May 27, 2004 (the "Proxy Statement") is incorporated into this Report by reference.
ITEM 11. EXECUTIVE COMPENSATION
The information set forth under the caption "EXECUTIVE COMPENSATION" in the Proxy Statement is incorporated into this Report by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information set forth under the caption "SECURITY OWNERSHIP OF DIRECTORS, EXECUTIVE OFFICERS, AND PRINCIPAL SHAREHOLDERS--Stock Ownership" in the Proxy Statement is incorporated into this Report by reference. There are no arrangements known to the Company, the operation of which may at a subsequent date result in a change in the control of the Company.
The following table summarizes, as of December 31, 2003, information about compensation plans under which equity securities are authorized for issuance.
Equity Compensation Plan Information

                                                                                Number of shares
                                                                             remaining available for
                               Number of shares to                            future issuance under
                                  be issued upon        Weighted-average       equity compensation
                                   exercise of          exercise price of       plans (excluding
                               outstanding options,   outstanding options,   securities reflected in
                               warrants and rights    warrants, and rights         column (a))
Plan category                         (a)                     (b)                      (c)
---------------------------    -------------------    --------------------    -----------------------
Equity compensation plans
   approved by shareholders             0                      $0                   2,100,000

Equity compensation plans
   not approved by
shareholders                            0                      $0                           0
                                   ------------           ------------        ---------------

Total                                   0                      $0                   2,100,000
                                   ============           ============        ===============	

ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information set forth under the caption "CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS" in the Proxy Statement is incorporated into this Report by reference.
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
The information set forth under the caption "PROPOSAL 2--APPOINTMENT OF INDEPENDENT AUDITOR--Independent Accountant Fees and Services" in the Proxy Statement is incorporated into this Report by reference.
34
 
PART IV.
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
(a) 1. Consolidated Financial Statements
The following consolidated financial statements of Nelnet, Inc. and its subsidiaries and the Independent Auditors' Report thereon are included in Item 8 above:

                                                                                               Page
                                                                                               ----
Independent Auditors' Report..............................................................      F-2
Consolidated Financial Statements for the Years Ended December 31, 2003, 2002 and 2001:
Consolidated Balance Sheets as of December 31, 2003 and 2002..............................      F-3
Consolidated Statements of Income for the Years Ended December 31, 2003, 2002 and 2001....      F-4
Consolidated Statements of Shareholders' Equity and Comprehensive Income for the Years
  Ended December 31, 2003, 2002 and 2001..................................................      F-5
Consolidated Statements of Cash Flows for the Years Ended December 31, 2003, 2002 and 2001      F-6
Notes to the Consolidated Financial Statements............................................      F-7	

2. Financial Statement Schedules
All schedules are omitted because they are not applicable or the required information is shown in the consolidated financial statements or notes there.
3. Exhibits
The exhibits listed in the accompanying index to exhibits are filed or incorporated by reference as part of this annual report.
4. Appendix
Appendix A - Federal Family Education Loan Program
(b) Reports on Form 8-K.
On January 30, 2004, the Company filed a current report on Form 8-K announcing its financial results for the quarter and year ended December 31, 2003.
(c) Exhibits
EXHIBIT INDEX

 Exhibit
    No.                        Description
--------  ------------------------------------------------------------------
   2.1    Plan of Reorganization, Plan of Merger and Merger Agreement, dated
          as of October 14, 1999, by and between Union  Financial  Services,
          Inc. and National  Education Loan Network,  Inc.  (Incorporated by
          reference to Exhibit 2.1 to the registrant's Form S-1 Registration
          Statement.)

   2.2    Articles of Merger  certified by Union Financial  Services,  Inc.,
          dated October 15, 1999.  Incorporated  by reference to Exhibit 2.2
          to the registrant's Form S-1 Registration Statement.

   2.3    Agreement and Plan of  Reorganization,  dated as of March 1, 2000,
          by  and   among   UNIPAC   Service   Corporation,   NelNet,   Inc.
          (subsequently  renamed National Education Loan Network,  Inc.) and
          National Education Loan Network, Inc. Incorporated by reference to
          Exhibit 2.3 to the registrant's Form S-1 Registration Statement.

   2.4    Plan of Merger,  dated as of March 1, 2000,  by and among  NelNet,
          Inc. (subsequently renamed National Education Loan Network, Inc.),
          National   Education   Loan  Network,   Inc.  and  UNIPAC  Service
          Corporation.  Incorporated  by  reference  to  Exhibit  2.4 to the
          registrant's Form S-1 Registration Statement.

   2.5    Articles of Merger certified by NelNet, Inc., dated March 1, 2000.
          Incorporated by reference to Exhibit 2.5 to the registrant's  Form
          S-1 Registration Statement.

   2.6    Letter  Agreement  relating  to  the  purchase  of  the  stock  of
          InTuition  Holdings,  Inc.,  dated  as of June 15,  2000,  between
          NELnet,  Inc.   (subsequently   renamed  National  Education  Loan
          Network,   Inc.)  and   Farmers  &   Merchants   Investment   Inc.
          Incorporated by reference to Exhibit 2.6 to the registrant's  Form
          S-1 Registration Statement.

   2.7    Transfer Agreement with Irrevocable Power of Attorney, dated as of
          June 28, 2001, by and between InTuition Development Holdings,  LLC
          and  InTuition  Guarantee  Services II, Inc.  (which  subsequently
          became Nelnet Guarantee  Services Inc.) relating to the membership
          interests in InTuition Guarantee Services, LLC (which subsequently
          became GuaranTec LLP). Incorporated by reference to Exhibit 2.7 to
          the registrant's Form S-1 Registration Statement.	

35
2.8 Master Stock Purchase Agreement, dated as of December 12, 2001, by and between EFS, Inc. and NELnet, Inc. (subsequently renamed National Education Loan Network, Inc.). Incorporated by reference to Exhibit 2.8 to the registrant's Form S-1 Registration Statement.
2.9 Stock Purchase Agreement, dated as of January 24, 2002, by and among NELnet, Inc. (subsequently renamed National Education Loan Network, Inc.) and Hilario Arguinchona. Incorporated by reference to Exhibit 2.9 to the registrant's Form S-1 Registration Statement.
2.10 Purchase Agreement, dated as of February 14, 2002, by and between InTuition Guarantee Services, LLC and NELnet, Inc. (subsequently renamed National Education Loan Network, Inc.). Incorporated by reference to Exhibit 2.10 to the registrant's Form S-1 Registration Statement.
2.11 Stock Purchase Agreement, dated May 1, 2002, by and among Nelnet Loan Services, Inc. (subsequently renamed Nelnet, Inc.) and Nelnet, Inc. (subsequently renamed National Education Loan Network, Inc.). Incorporated by reference to Exhibit 2.11 to the registrant's Form S-1 Registration Statement.
2.12 Stock Purchase Agreement, dated as of May 1, 2002, by and between Farmers & Merchants Investment Inc. and Nelnet Loan Services, Inc. (subsequently renamed Nelnet, Inc.). Incorporated by reference to Exhibit 2.12 to the registrant's Form S-1 Registration Statement.
2.13 Stock Purchase Agreement, dated May 2, 2002, by and among Packers Service Group, Inc. and Infovisa, Inc. Incorporated by reference to Exhibit 2.13 to the registrant's Form S-1 Registration Statement.
2.14 Stock Purchase Agreement, dated as of May 9, 2002, among Thomas Morrill, James Callier, Michael Cruskie, DominicRotondi and Nelnet, Inc. (subsequently renamed National Education Loan Network, Inc.) concerning Charter Account Systems, Inc. Incorporated by reference to Exhibit 2.14 to the registrant's Form S-1 Registration Statement.
2.15 Senior Stock Purchase (Call) Option Agreement by and between NELnet, Inc. (subsequently renamed National Education Loan Network, Inc.) and Maine Educational Loan Marketing Corporation dated as of June 30, 2000. Incorporated by reference to Exhibit 2.15 to the registrant's Form S-1 Registration Statement.
2.16 Purchase Agreement, dated as of July 3, 2003, by and between Nelnet Loan Services, Inc. (subsequently renamed Nelnet, Inc.), Union Financial Services, Inc. and Packers Service Group, Inc. Incorporated by reference to Exhibit 2.16 to the registrant's Form S-1 Registration Statement.
2.17* Agreement for Purchase of LLC Membership Interest among David A. Hoeft, Todd J. Wolfe, Tina D. Mercer, Premier Credit of North America, LLC and Nelnet, Inc., dated as of January 28, 2004.
3.1 Second Amended and Restated Articles of Incorporation of Nelnet, Inc. Incorporated by reference to Exhibit 3.1 to the registrant's Form S-1 Registration Statement.
3.2 Second Amended and Restated Bylaws of Nelnet, Inc. Incorporated by reference to Exhibit 3.2 to the registrant's Form S-1 Registration Statement.
4.1 Form of Class A Common Stock Certificate of Nelnet, Inc. Incorporated by reference to Exhibit 4.1 to the registrant's Form S-1 Registration Statement.
4.2 Indenture of Trust by and between Nelnet Student Loan Corporation-2 and Zions First National Bank, as Trustee, dated as of June 1, 2000. Incorporated by reference to Exhibit 4.2 to the registrant's Form S-1 Registration Statement.
4.3 Series 2000 Supplemental Indenture of Trust by and between Nelnet Student Loan Corporation-2 and Zions First National Bank, as Trustee, authorizing the issuance of $1,000,000,000 NELNET Student Loan Corporation-2 Taxable Student Loan Asset-Backed Notes Series 2000, dated as of June 1, 2000. Incorporated by reference to Exhibit 4.3 to the registrant's Form S-1 Registration Statement.
4.4 Indenture of Trust by and between Nelnet Student Loan Trust 2002-1 and Zions First National Bank, as Trustee, dated as of May 1, 2002. Incorporated by reference to Exhibit 4.4 to the registrant's Form S-1 Registration Statement.
4.5 Indenture of Trust by and between Nelnet Student Loan Trust 2002-2 and Zions First National Bank, as Trustee, dated as of September 1, 2002. Incorporated by reference to Exhibit 4.5 to the registrant's Form S-1 Registration Statement.
4.6 Indenture of Trust between Nelnet Student Loan Trust 2003-1 and Zions First National Bank, as Trustee, dated as of January 1, 2003. Incorporated by reference to Exhibit 4.6 to the registrant's Form S-1 Registration Statement.
4.7 Indenture of Trust by and among Nelnet Education Loan Funding, Inc., Wells Fargo Bank Minnesota, National Association, as Indenture Trustee, and Wells Fargo Bank Minnesota, National Association, as Eligible Lender Trustee, dated as of June 1, 2003. Incorporated by reference to Exhibit 4.7 to the registrant's Form S-1 Registration Statement.
4.8 Series 2003-1 Supplemental Indenture of Trust by and between Nelnet Education Loan Funding, Inc. and Wells Fargo Bank Minnesota, National Association, as Indenture Trustee, authorizing the issuance of $1,030,000,000 Nelnet Education Loan Funding, Inc. Student Loan Asset-Backed Notes Series 2003-1, dated as of June 1, 2003. Incorporated by reference to Exhibit 4.8 to the registrant's Form S-1 Registration Statement.
4.9 Option Agreement, dated as of January 24, 2002, by and between NELnet, Inc. (subsequently renamed National Education Loan Network, Inc.) and Hilario Arguinchona. Incorporated by reference to Exhibit 4.10 to the registrant's Form S-1 Registration Statement.
36
4.10 Registration Rights Agreement, dated as of December 16, 2003, by and among Nelnet, Inc. and the shareholders of Nelnet, Inc. signatory thereto. Incorporated by reference to Exhibit 4.11 to the registrant's Form S-1 Registration Statement.
4.11* Indenture of Trust among Nelnet Education Loan Funding, Inc. and Wells Fargo Bank Minnesota, National Association, as Indenture Trustee and Eligible Lender Trustee, dated as of January 1, 2004.
4.12 Trust Agreement, dated as of April 1, 2001, among NELNET Student Loan Corporation-1, as Depositor, MELMAC LLC, as Depositor, NELnet, Inc. (subsequently renamed National Education Loan Network, Inc.), as Administrator, The Chase Manhattan Bank, as Collateral Agent, Note Registrar and Note Paying Agent, and Wilmington Trust Company, as Trustee, Certificate Registrar and Certificate Paying Agent. Incorporated by reference to Exhibit 10.59 to the registrant's Form S-1 Registration Statement.
4.13 Trust Agreement, dated as of December 1, 2001, among EMT Corp., as Depositor, NELnet, Inc. (subsequently renamed National Education Loan Network, Inc.), as Administrator, JPMorgan Chase Bank, as Collateral Agent, Note Registrar and Note Paying Agent, and Wilmington Trust Company, as Trustee, Certificate Registrar and Certificate Paying Agent. Incorporated by reference to Exhibit 10.60 to the registrant's Form S-1 Registration Statement.
10.2 Agreement to Terminate Stockholders Agreement, dated as of August 4, 2003, by and among Nelnet Loan Services, Inc. (f/k/a UNIPAC Service Corporation) (subsequently renamed Nelnet, Inc.) and those stockholders party to the Stockholders Agreement dated as of March 2, 2000. Incorporated by reference to Exhibit 10.2 to the registrant's Form S-1 Registration Statement.
10.3 Warehouse Loan and Security Agreement among NHELP-I, Inc., as the Borrower, Norwest Bank Minnesota, National Association, as the Trustee, and Concord Minutemen Capital Company, LLC, as the Lender, dated as of September 30, 1998. Incorporated by reference to Exhibit 10.3 to the registrant's Form S-1 Registration Statement.
10.4 First Amendment to Warehouse Loan and Security Agreement, among NHELP-I Inc., as the Borrower, Norwest Bank Minnesota, National Association, as the Trustee, and Concord Minutemen Capital Company, LLC, as the Lender, dated as of December 15, 1998. Incorporated by reference to Exhibit 10.4 to the registrant's Form S-1 Registration Statement.
10.5 Second Amendment to Warehouse Loan and Security Agreement among NHELP-I, Inc., as the Borrower, Norwest Bank Minnesota, National Association, as the Trustee, and Concord Minutemen Capital Company, LLC, as the Lender, dated as of September 29, 1999. Incorporated by reference to Exhibit 10.5 to the registrant's Form S-1 Registration Statement.
10.6 Third Amendment to Warehouse Loan and Security Agreement, dated as of November 16, 1999, among NHELP-I, Inc., Concord Minutemen Capital Company, LLC and Norwest Bank Minnesota, National Association. Incorporated by reference to Exhibit 10.6 to the registrant's Form S-1 Registration Statement.
10.7 Fourth Amendment to Warehouse Loan and Security Agreement, dated as of February 1, 2000, among NHELP-I, Inc., Concord Minutemen Capital Company, LLC and Norwest Bank Minnesota, National Association. Incorporated by reference to Exhibit 10.7 to the registrant's Form S-1 Registration Statement.
10.8 Fifth Amendment to Warehouse Loan and Security Agreement among NHELP-I, Inc., as the Borrower, Wells Fargo Bank Minnesota, National Association, as the successor Trustee, and Concord Minutemen Capital Company, LLC, as the Lender, dated as of September 1, 2000. Incorporated by reference to Exhibit 10.8 to the registrant's Form S-1 Registration Statement.
10.9 Sixth Amendment to Warehouse Loan and Security Agreement, dated as of September 24, 2002, among NHELP-I, Inc., Concord Minutemen Capital Company, LLC and Wells Fargo Bank Minnesota, National Association. Incorporated by reference to Exhibit 10.9 to the registrant's Form S-1 Registration Statement.
10.10 Warehouse Note Purchase and Security Agreement among NHELP-III, Inc., as the Issuer, Norwest Bank Minnesota, National Association, as the Trustee, Delaware Funding Corporation, as a Note Purchaser, Three Rivers Funding Corporation, as a Note Purchaser, Morgan Guaranty Trust Company of New York, as DFC Agent and Administrative Agent, and Mellon Bank, N.A., as TRFC Agent, dated as of September 1, 1999. Incorporated by reference to Exhibit 10.10 to the registrant's Form S-1 Registration Statement.
10.11 First Amendment to Warehouse Note Purchase and Security Agreement among NHELP-III, Inc., as the Issuer, Wells Fargo Bank Minnesota, National Association, as the successor Trustee, Delaware Funding Corporation, as a Note Purchaser, Three Rivers Funding Corporation, as a Note Purchaser, Morgan Guaranty Trust Company of New York, as DFC Agent and Administrative Agent, and Mellon Bank, N.A., as TRFC Agent, dated as of September 1, 2000. Incorporated by reference to Exhibit 10.11 to the registrant's Form S-1 Registration Statement.
10.12 Second Amendment to Warehouse Note Purchase and Security Agreement among NHELP-III, Inc., as the Issuer, Wells Fargo Bank Minnesota, National Association, as the successor Trustee, Delaware Funding Corporation, as a Note Purchaser, Three Rivers Funding Corporation, as a Note Purchaser, JPMorgan Chase Bank, as DFC Agent and Administrative Agent, and Mellon Bank, N.A., as TRFC Agent, dated as of September 12, 2002. Incorporated by reference to Exhibit 10.12 to the registrant's Form S-1 Registration Statement.
10.13 Amendment to Warehouse Note Purchase and Security Agreement, dated as of June 1, 2003, by and among NHELP-III, Inc., as the Issuer, Delaware Funding Corporation, as Note Purchaser, Three Rivers Funding Corporation, as Note Purchaser, JPMorgan Chase Bank (successor to Morgan Guaranty and Trust Company of New York), as DFC Agent and Administrative Agent, and Mellon Bank, N.A., as TRFC Agent. Incorporated by reference to Exhibit 10.13 to the registrant's Form S-1 Registration Statement.
37
10.14 Warehouse Loan and Security Agreement among NELnet Student Loan Warehouse Corporation-1, as Borrower, Zions First National Bank, as Trustee, Thunder Bay Funding Inc., as Lender, and Royal Bank of Canada, as Facility Agent and Alternate Lender, dated as of February 1, 2002. Incorporated by reference to Exhibit 10.14 to the registrant's Form S-1 Registration Statement.
10.15 Amended and Restated Warehouse Loan and Security Agreement among Nelnet Education Loan Funding, Inc., as Borrower, Wells Fargo Bank Minnesota, National Association, as Eligible Lender Trustee, Zions First National Bank, as Trustee, Thunder Bay Funding Inc., as Lender, and Royal Bank of Canada, as Facility Agent and Alternate Lender, dated as of April 28, 2003. Incorporated by reference to Exhibit 10.15 to the registrant's Form S-1 Registration Statement.
10.16 Warehouse Note Purchase and Security Agreement among Nelnet Education Loan Funding, as Borrower, Wells Fargo Bank Minnesota, National Association, as Trustee, Wells Fargo Bank Minnesota, National Association, as Eligible Lender Trustee, Quincy Capital Corporation, as Bank of America Conduit Lender, Bank of America, N.A., as Bank of America Alternate Lender, Bank of America, N.A., as Bank of America Facility Agent, Gemini Securitization Corp., as Deutsche Bank Conduit Lender, Deutsche Bank AG, New York Branch, as Deutsche Bank Alternate Lender, Deutsche Bank AG, New York Branch, as Deutsche Bank Facility Agent, Barton Capital Corporation, as Societe Generale Conduit Lender, Societe Generale, as Societe Generale Alternate Lender, Societe Generale, as Societe Generale Facility Agent, and Bank of America, N.A., as Administrative Agent, dated as of May 1, 2003. Incorporated by reference to Exhibit 10.16 to the registrant's Form S-1 Registration Statement.
10.17 Credit Agreement, dated as of January 11, 2002, by and among Nelnet Loan Services, Inc. (subsequently renamed Nelnet, Inc.), Nelnet, Inc. (subsequently renamed National Education Loan Network, Inc.) and Bank of America, N.A. Incorporated by reference to Exhibit 10.17 to the registrant's Form S-1 Registration Statement.
10.18 First Amendment to Credit Agreement, dated as of January 24, 2003, by and among Nelnet Loan Services, Inc. (subsequently renamed Nelnet, Inc.), Nelnet, Inc. (subsequently renamed National Education Loan Network, Inc.) and Bank of America, N.A. Incorporated by reference to Exhibit 10.18 to the registrant's Form S-1 Registration Statement.
10.19 Second Amendment to Credit Agreement and First Amendment to Application and Agreement for Standby Letter of Credit, dated as of August 18, 2003, by and among National Education Loan Network, Inc. (formerly known as Nelnet, Inc.), Nelnet, Inc. (formerly known as Nelnet Loan Services, Inc.) and Bank of America, N.A. Incorporated by reference to Exhibit 10.19 to the registrant's Form S-1 Registration Statement.
10.20 Security Agreement, dated as of January 11, 2002, by and between Nelnet Loan Services, Inc. (subsequently renamed Nelnet, Inc.) and Bank of America, N.A. Incorporated by reference to Exhibit 10.20 to the registrant's Form S-1 Registration Statement.
10.21 Guaranty Agreement, dated as of January 11, 2002, by and among Nelnet Loan Services, Inc. (subsequently renamed Nelnet, Inc.), Nelnet, Inc. (subsequently renamed National Education Loan Network, Inc.), Nelnet Corporation (subsequently renamed Nelnet Corporate Services, Inc.), Nelnet Marketing Solutions, Inc., ClassCredit, Inc., Nelnet Guarantee Services, Inc., InTuition, Inc., EFS, Inc., EFS Services, Inc., EFS Finance Co., GuaranTec LLP and National Higher Education Loan Program, Inc. Incorporated by reference to Exhibit 10.21 to the registrant's Form S-1 Registration Statement.
10.22 Intercreditor Agreement, dated as of January 11, 2002, by and among Farmers & Merchants Investment Inc., Bank of America, N.A. and Nelnet, Inc. (subsequently renamed National Education Loan Network, Inc.) Incorporated by reference to Exhibit 10.22 to the registrant's Form S-1 Registration Statement.
10.23 Irrevocable Letter of Credit in the amount of $50,000,000, dated as of May 23, 2003, by and between Nelnet, Inc. (subsequently renamed National Education Loan Network, Inc.) and Bank of America, N.A. Incorporated by reference to Exhibit 10.23 to the registrant's Form S-1 Registration Statement.
10.24 Continuing Guaranty, dated as of May 23, 2003, by and between Nelnet Loan Services, Inc. (subsequently renamed Nelnet, Inc.) and Bank of America, N.A. Incorporated by reference to Exhibit 10.24 to the registrant's Form S-1 Registration Statement.
10.25 Agreement Between 5280 Solutions and Nelnet/Unipac, dated as of April 12, 2001. Incorporated by reference to Exhibit 10.25 to the registrant's Form S-1 Registration Statement.
10.26+ Employment Contract, dated as of May 1, 2001, by and between NHELP, Inc. and Richard H. Pierce. Incorporated by reference to Exhibit 10.26 to the registrant's Form S-1 Registration Statement.
10.27 Marketing Expense Reimbursement Agreement, dated as of January 1, 1999, by and between Union Bank and Trust Company and National Education Loan Network, Inc. Incorporated by reference to Exhibit 10.27 to the registrant's Form S-1 Registration Statement.
10.28 First Amendment of Marketing Expense Reimbursement Agreement, dated as of April 1, 2001, by and between Union Bank and Trust Company and NELnet, Inc. (f/k/a National Education Loan Network, Inc.) (subsequently renamed National Education Loan Network, Inc.). Incorporated by reference to Exhibit 10.28 to the registrant's Form S-1 Registration Statement.
10.29 Second Amendment of Marketing Expense Reimbursement Agreement, dated as of December 21, 2001, by and between Union Bank and Trust Company and NELnet, Inc. (f/k/a National Education Loan Network, Inc.) (subsequently renamed National Education Loan Network, Inc.). Incorporated by reference to Exhibit 10.29 to the registrant's Form S-1 Registration Statement.
38
10.30 Amended and Restated Participation Agreement, dated as of June 1, 2001, by and between NELnet, Inc. (subsequently renamed National Education Loan Network, Inc.) and Union Bank and Trust Company. Incorporated by reference to Exhibit 10.30 to the registrant's Form S-1 Registration Statement.
10.31 First Amendment of Amended and Restated Participation Agreement, dated as of December 19, 2001, by and between Union Bank and Trust Company and NELnet, Inc. (subsequently renamed National Education Loan Network, Inc.). Incorporated by reference to Exhibit 10.31 to the registrant's Form S-1 Registration Statement.
10.32 Second Amendment of Amended and Restated Participation Agreement, dated as of December 1, 2002, by and between Union Bank and Trust Company and Nelnet, Inc. (f/k/a NELnet, Inc.) (subsequently renamed National Education Loan Network, Inc.). Incorporated by reference to Exhibit 10.32 to the registrant's Form S-1 Registration Statement.
10.33 Alternative Loan Participation Agreement, dated as of June 29, 2001, by and between NELnet, Inc. (subsequently renamed National Education Loan Network, Inc.) and Union Bank and Trust Company. Incorporated by reference to Exhibit 10.33 to the registrant's Form S-1 Registration Statement.
10.34 Amended and Restated Agreement, dated as of January 1, 1999, by and between Union Bank and Trust Company and National Education Loan Network, Inc. Incorporated by reference to Exhibit 10.34 to the registrant's Form S-1 Registration Statement.
10.36 Guaranteed Purchase Agreement, dated as of March 19, 2001, by and between NELnet, Inc. (subsequently renamed National Education Loan Network, Inc.) and Union Bank and Trust Company. Incorporated by reference to Exhibit 10.36 to the registrant's Form S-1 Registration Statement.
10.37 First Amendment of Guaranteed Purchase Agreement, dated as of February 1, 2002, by and between NELnet, Inc. (subsequently renamed National Education Loan Network, Inc.) and Union Bank and Trust Company. Incorporated by reference to Exhibit 10.37 to the registrant's Form S-1 Registration Statement.
10.38 Second Amendment of Guaranteed Purchase Agreement, dated as of December 1, 2002, by and between Nelnet, Inc. (f/k/a/ NELnet, Inc.) (subsequently renamed National Education Loan Network, Inc.) and Union Bank and Trust Company. Incorporated by reference to Exhibit 10.38 to the registrant's Form S-1 Registration Statement.
10.39 Agreement For Use of Revolving Purchase Facility, dated as of January 1, 1999, by and between Union Bank and Trust Company and National Education Loan Network, Inc. Incorporated by reference to Exhibit 10.78 to the registrant's Form S-1 Registration Statement.
10.40+ Nelnet, Inc. Executive Officers' Bonus Plan. Incorporated by reference to Exhibit 10.79 to the registrant's Form S-1 Registration Statement.
10.41+ Share Retention Policy. Incorporated by reference to Exhibit 10.83 to the registrant's Form S-1 Registration Statement.
10.42+ Nelnet, Inc. Restricted Stock Plan. Incorporated by reference to Exhibit 4.12 to the registrant's Form S-1 Registration Statement.
10.43+ Nelnet, Inc. Directors Stock Compensation Plan. Incorporated by reference to Exhibit 4.13 to the registrant's Form S-1 Registration Statement.
10.44+ Nelnet, Inc. Employee Share Purchase Plan. Incorporated by reference to Exhibit 4.14 to the registrant's Form S-1 Registration Statement.
10.45 Operating Agreement of FirstMark Services, LLC, dated as of March 31, 2002. Incorporated by reference to Exhibit 10.84 to the registrant's Form S-1 Registration Statement.
10.46 Credit Agreement by and among Nelnet, Inc., National Education Loan Network, Inc., M&I Marshall Ilsley Bank, SunTrust Bank, First National Bank of Omaha and Fifth Third Bank, Indiana, dated as of September 25, 2003. Incorporated by reference to Exhibit 10.85 to the registrant's Form S-1 Registration Statement.
10.47 Guaranty Agreement, by and among Charter Account Systems, Inc., ClassCredit, Inc., EFS, Inc., EFS Services, Inc., GuaranTec, LLP, Idaho Financial Associates, Inc., InTuition, Inc., National Higher Educational Loan Program, Inc., Nelnet Canada, Inc., Nelnet Corporation (subsequently renamed Nelnet Corporate Services, Inc.), Nelnet Guarantee Services, Inc., Nelnet Marketing Solutions, Inc., Student Partner Services, Inc., UFS Securities, LLC and Shockley Financial Corp., dated as of September 25, 2003. Incorporated by reference to Exhibit 10.86 to the registrant's Form S-1 Registration Statement.
10.48 Security Agreement, dated as of September 25, 2003, by and between Nelnet, Inc. and M&I Marshall & Ilsley Bank, as Agent. Incorporated by reference to Exhibit 10.87 to the registrant's Form S-1 Registration Statement.
10.49 Security Agreement, dated as of September 25, 2003, by and between National Education Loan Network, Inc. and M&I Marshall & Ilsley Bank, as Agent. Incorporated by reference to Exhibit 10.88 to the registrant's Form S-1 Registration Statement.
10.50 Intercreditor Agreement, dated as of September 25, 2003, by and among M&I Marshall & Ilsley Bank, SunTrust Bank, First National Bank of Omaha, Fifth Third Bank, Indiana and Bank of America, N.A. Incorporated by reference to Exhibit 10.89 to the registrant's Form S-1 Registration Statement.
10.51 Letter Agreement by and between Nelnet Education Loan Funding, Inc. and Bank of America, N.A., dated as of June 25, 2003, relating to the increase of the Warehouse Note Purchase and Security Agreement dated as of May 1, 2003. Incorporated by reference to Exhibit 10.90 to the registrant's Form S-1 Registration Statement.
10.52 Letter Agreement by and between Nelnet Education Loan Funding, Inc. and Deutsche Bank AG, New York Branch, dated as of June 25, 2003, relating to the increase of the Warehouse Note Purchase and Security Agreement dated as of May 1, 2003. Incorporated by reference to Exhibit 10.91 to the registrant's Form S-1 Registration Statement.
39
10.53 Letter Agreement by and between Nelnet Education Loan Funding, Inc. and Societe Generale, dated as of June 25, 2003, relating to the increase of the Warehouse Note Purchase and Security Agreement dated as of May 1, 2003. Incorporated by reference to Exhibit 10.92 to the registrant's Form S-1 Registration Statement.
10.54 Third Amendment to Credit Agreement, dated effective September 26, 2003, by and among National Education Loan Network, Inc., Nelnet, Inc. and Bank of America, N.A. Incorporated by reference to Exhibit 10.93 to the registrant's Form S-1 Registration Statement.
10.55 Amendment to Application and Agreement for Standby Letter of Credit, Loan Purchase Agreements and Standby StudentLoan Purchase Agreements, dated effective October 21, 2003, by and among National Education Loan Network, Inc., Nelnet, Inc., Nelnet Education Loan Funding, Inc., Union Bank and Trust Company and Bank of America, N.A. Incorporated by reference to Exhibit 10.94 to the registrant's Form S-1 Registration Statement.
10.56* Letter Agreement between Nelnet Education Loan Funding, Inc. and Deutsche Bank AG, dated as of February 20, 2004.
10.57* Letter Agreement between Nelnet Education Loan Funding, Inc. and Bank of America, N.A., dated as of February 20, 2004.
10.58* Letter Agreement between Nelnet Education Loan Funding, Inc. and Societe Generale, dated as of February 20, 2004.
10.59* Lease Assignment and Assumption Agreement between MES - Maine Education Services as assignor and Nelnet Corporate Services, Inc. as assignee, dated as of February 1, 2004.
10.60* Operating Agreement for Premiere Credit of North America, LLC among Nelnet, Inc., Todd J. Wolfe, David A. Hoeft and Tina D. Mercer, dated as of January 28, 2004.
10.61* Third Amendment to Amended and Restated Participation Agreement between National Education Loan Network, Inc. and Union Bank and Trust Company, dated as of February 5, 2004.
10.62* February 2004 Amendment to Application and Agreement for Standby Letter of Credit, Loan Purchase Agreements and Standby Student Loan Purchase Agreements, dated as of February 20, 2004, among National Education Loan Network, Inc., Nelnet, Inc., Nelnet Education Loan Funding, Inc., Union Bank and Trust Company and Bank of America, N.A.
10.63* Amendment to Application and Agreement for Standby Letter of Credit, Loan Purchase Agreements and Standby Student Loan Purchase Agreements, dated effective November 20, 2003, by and among National Education Loan Network, Inc., Nelnet, Inc., Nelnet Education Loan Funding, Inc., Union Bank and Trust Company and Bank of America, N.A.
10.64* Amendment to Application and Agreement for Standby Letter of Credit, Loan Purchase Agreements and Standby Student Loan Purchase Agreements, dated effective December 19, 2003, by and among National Education Loan Network, Inc., Nelnet, Inc., Nelnet Education Loan Funding, Inc., Union Bank and Trust Company and Bank of America, N.A.
10.65* Agreement of Lease Renewal among Marianne B. Jardine, Trustee of National Education Loan of New England as assignee, dated as of June 1, 2002.
14.1* Nelnet, Inc. Code of Ethics.
14.2* Nelnet Education Loan Funding, Inc. Code of Ethics.
21.1* Subsidiaries of Nelnet, Inc.
23.1* Consent of KPMG LLP, Independent Auditors.
31.1* Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 of Co-Chief Executive Officer Michael S. Dunlap.
31.2* Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 of Co-Chief Executive Officer Stephen F. Butterfield.
31.3* Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 of Chief Financial Officer Terry J. Heimes.
32.** Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
* Filed herewith
** Furnished herewith
+ Indicates a compensatory plan or arrangement contemplated by Item 15(a)(3) of Form 10-K
40
 
SIGNATURES
Pursuant to the requirements of the Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Lincoln, State of Nebraska, on March 26, 2004.
NELNET, INC.

By:     /s/ MICHAEL S. DUNLAP
        ----------------------------------------
Name:   Michael S. Dunlap
Title:  Chairman and Co-Chief Executive
        Officer (Co-Principal Executive Officer)	

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities indicated on the dates indicated.

            Signature                               Title                         Date
            ---------                               -----                         ----
/s/ MICHAEL S. DUNLAP                           Chairman and              March 26, 2004
------------------------------------     Co-Chief Executive Officer
  Michael S. Dunlap                   (Co-Principal Executive Officer)

/s/ STEPHEN F. BUTTERFIELD                    Vice Chairman and           March 26, 2004
------------------------------------     Co-Chief Executive Officer
Stephen F. Butterfield                 (Co-Principal Executive Officer)

 /s/ TERRY J. HEIMES                       Chief Financial Officer        March 26, 2004
------------------------------------  (Principal Financial Officer and
   Terry J. Heimes                      Principal Accounting Officer)

   /s/ DON R. BOUC                         President and Director         March 26, 2004
------------------------------------
     Don R. Bouc

  /s/ JAMES P. ABEL                               Director                March 26, 2004
------------------------------------
    James P. Abel

/s/ THOMAS E. HENNING                             Director                March 26, 2004
------------------------------------
  Thomas E. Henning

  /s/ ARTURO MORENO                               Director                March 26, 2004
------------------------------------
    Arturo Moreno

/s/ BRIAN J. O'CONNOR                             Director                March 26, 2004
------------------------------------
  Brian J. O'Connor

 /s/ MICHAEL REARDON                              Director                March 26, 2004
------------------------------------
   Michael Reardon

/s/ JAMES H. VAN HORN                             Director                March 26, 2004
------------------------------------
  James H. Van Horn	

41
NELNET, INC. AND SUBSIDIARIES
Index to Consolidated Financial Statements

                                                                            Page

Independent Auditors' Report                                                 F-2

Consolidated Balance Sheets as of December 31, 2003 and 2002                 F-3

Consolidated Statements of Income for the years ended
    December 31, 2003, 2002 and 2001                                         F-4

Consolidated Statements of Shareholders' Equity and
    Comprehensive Income for the years ended
    December 31, 2003, 2002 and 2001                                         F-5

Consolidated Statements of Cash Flows for the years ended
    December 31, 2003, 2002 and 2001                                         F-6

Notes to Consolidated Financial Statements                                   F-7	

F-1
 
Independent Auditors' Report
The Board of Directors
Nelnet, Inc.:
We have audited the accompanying consolidated balance sheets of Nelnet, Inc. and subsidiaries as of December 31, 2003 and 2002, and the related consolidated statements of income, shareholders' equity and comprehensive income, and cash flows for each of the years in the three-year period ended December 31, 2003. These consolidated financial statements are the responsibility of Nelnet, Inc. and subsidiaries' management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted in the United States of America. These standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Nelnet, Inc. and subsidiaries as of December 31, 2003 and 2002, and the results of their operations and their cash flows for each of the years in the three-year period ended December 31, 2003, in conformity with accounting principles generally accepted in the United States of America.

/s/ KPMG LLP

Lincoln, Nebraska
February 27, 2004	

F-2
 
NELNET, INC. AND SUBSIDIARIES
 Consolidated Balance Sheets
December 31, 2003 and 2002

                         Assets                                                      2003            2002
                                                                                  -----------     -----------
                                                                          (Dollars in thousands, except share data)
Student loans receivable (net of allowance for loan losses
     of $16,026 in 2003 and $12,000 in 2002)                                      $10,455,442       8,559,420
Cash and cash equivalents:
     Cash and cash equivalents - not held at a related party                          188,272          27,294
     Cash and cash equivalents - held at a related party                               10,151          12,861
                                                                                  -----------     -----------
                 Total cash and cash equivalents                                      198,423          40,155
Restricted cash - held by trustee                                                     634,263         570,703
Restricted investments - held by trustee                                              180,688         173,339
Restricted cash - due to loan program customers                                       141,841         132,375
Accrued interest receivable                                                           196,633         177,015
Accounts receivable, net                                                               17,289          14,838
Intangible assets, net                                                                 11,630          23,909
Furniture, equipment and leasehold improvements, net                                   19,138          12,910
Other assets, including deferred taxes                                                 76,162          61,919
                                                                                  -----------     -----------
                 Total assets                                                     $11,931,509       9,766,583
                                                                                  ===========     ===========
            Liabilities and Shareholders' Equity
Liabilities:
     Bonds and notes payable                                                      $11,366,458       9,447,682
     Accrued interest payable                                                          17,179          20,251
     Other liabilities                                                                100,542          57,529
     Due to loan program customers                                                    141,841         132,375
                                                                                  -----------     -----------
                 Total liabilities                                                 11,626,020       9,657,837
                                                                                  -----------     -----------
Minority interest                                                                          --            (376)
                                                                                  -----------     -----------
Shareholders' equity:
     Preferred stock, $0.01 par value.
        Authorized 50,000,000 shares; no shares issued or outstanding                      --              --
     Common stock:
        Class A, $0.01 par value. Authorized 600,000,000 shares;
           issued and outstanding 39,601,834 shares in 2003 and 30,947,834
           shares in 2002                                                                 396             309
        Class B, convertible, $0.01 par value. Authorized 15,000,000 shares;
           issued and outstanding 14,023,454 shares                                       140             140
     Additional paid-in capital                                                       206,831          37,891
     Retained earnings                                                                 97,885          70,782
     Accumulated other comprehensive income                                               237              --
                                                                                  -----------     -----------
                 Total shareholders' equity                                           305,489         109,122
Commitments and contingencies
                                                                                  -----------     -----------
                  Total liabilities and shareholders' equity                      $11,931,509       9,766,583
                                                                                  ===========     ===========	

See accompanying notes to consolidated financial statements.
F-3
 
NELNET, INC. AND SUBSIDIARIES
 Consolidated Statements of Income
Years ended December 31, 2003, 2002 and 2001

                                                                     2003           2002          2001
                                                                   ---------      ---------      ---------
                                                                  (Dollars in thousands, except share data)
Interest income:
    Loan interest                                                  $ 360,101        405,149        318,453
    Investment interest                                               15,203         20,759         16,794
                                                                   ---------      ---------      ---------
       Total interest income                                         375,304        425,908        335,247
Interest expense:
    Interest on bonds and notes payable                              196,692        235,008        220,682
                                                                   ---------      ---------      ---------
       Net interest income                                           178,612        190,900        114,565
Less provision for loan losses                                        11,475          5,587          3,925
                                                                   ---------      ---------      ---------
       Net interest income after provision for loan losses           167,137        185,313        110,640
                                                                   ---------      ---------      ---------
Other income:
    Loan servicing and other fee income                               99,294        103,899         93,172
    Software services and other income                                19,398         21,909          7,713
    Derivative market value adjustment                                (1,170)          (579)        (2,962)
                                                                   ---------      ---------      ---------
       Total other income                                            117,522        125,229         97,923
                                                                   ---------      ---------      ---------
Operating expenses:
    Salaries and benefits                                            124,273        106,874         77,370
    Other operating expenses:
       Depreciation and amortization                                  23,124         32,449         28,592
       Trustee and other debt related fees                            19,358         16,617         12,836
       Occupancy and communications                                   12,101         11,424          7,488
       Advertising and marketing                                      10,182         11,512         10,122
       Professional services                                           9,437          9,237          3,355
       Consulting fees and support services to related parties         3,519         12,800         29,350
       Postage and distribution                                       13,241         11,095          7,647
       Other                                                          23,135         22,693         18,678
                                                                   ---------      ---------      ---------
          Total other operating expenses                             114,097        127,827        118,068
                                                                   ---------      ---------      ---------
          Total operating expenses                                   238,370        234,701        195,438
                                                                   ---------      ---------      ---------
          Income before income taxes and minority interest            46,289         75,841         13,125
Income tax expense                                                    19,295         27,679          5,380
                                                                   ---------      ---------      ---------
          Income before minority interest                             26,994         48,162          7,745
Minority interest in subsidiary (income) loss                            109            376           (598)
                                                                   ---------      ---------      ---------
          Net income                                               $  27,103         48,538          7,147
                                                                   =========      =========      =========
          Earnings per share, basic and diluted                    $    0.60           1.08           0.16
                                                                   =========      =========      =========
See accompanying notes to consolidated financial statements.	

F-4

                                             Preferred    Common stock shares                 Class A       Class B
                                               stock    -----------------------  Preferred    common        common
                                               shares    Class A      Class B      stock       stock        stock
                                               ------   ----------   ----------   -------     ----------   ----------
                                                                (Dollars in thousands, except share data)
Balance at December 31, 2000                       --   29,412,314   14,023,454   $    --           295          140
Net income                                         --           --           --        --            --           --
Issuance of common stock                           --    1,535,520           --        --            14           --
Minority interest loss in excess
      of minority interest capital                 --           --           --        --            --           --
                                                -----   ----------   ----------   -------     ---------   ----------
Balance at December 31, 2001                       --   30,947,834   14,023,454        --           309          140
Net income                                         --           --           --        --            --           --
Dividend distribution                              --           --           --        --            --           --
Recapture of minority interest
      loss in excess of minority
      interest capital                             --           --           --        --            --           --
                                                -----   ----------   ----------   -------     ---------   ----------
Balance at December 31, 2002                       --   30,947,834   14,023,454        --           309          140
Comprehensive income:
      Net income                                   --           --           --        --            --           --
      Other comprehensive income,
          net of tax, related to cash
          flow hedge                               --           --           --        --            --           --

          Total comprehensive income
Non-cash compensation expense                      --           --           --        --            --           --
Issuance of common stock                           --      331,800           --        --             3           --
Issuance of common stock in initial
      public offering, net of direct offering
      expenses of $16,600                          --    8,586,800           --        --            86           --
Redemption of common stock                         --     (264,600)          --        --            (2)          --
                                                -----   ----------   ----------   -------     ---------   ----------
Balance at December 31, 2003                       --   39,601,834   14,023,454   $    --           396          140
                                                =====   ==========   ==========   =======     =========   ==========	

                                                                             Accumulated
                                                  Additional                    other         Total
                                                    paid-in      Retained   comprehensive  shareholders'
                                                    capital      earnings       income       equity
                                                  ----------    ----------    ----------   ----------
Balance at December 31, 2000                          35,635        18,091            --       54,161
Net income                                                --         7,147            --        7,147
Issuance of common stock                               1,996            --            --        2,010
Minority interest loss in excess
      of minority interest capital                      (132)           --            --         (132)
                                                  ----------    ----------    ----------   ----------
Balance at December 31, 2001                          37,499        25,238            --       63,186
Net income                                                --        48,538            --       48,538
Dividend distribution                                     --        (2,994)           --       (2,994)
Recapture of minority interest
      loss in excess of minority
      interest capital                                   392            --            --          392
                                                  ----------    ----------    ----------   ----------
Balance at December 31, 2002                          37,891        70,782            --      109,122
Comprehensive income:
      Net income                                          --        27,103            --       27,103
      Other comprehensive income,
          net of tax, related to cash
          flow hedge                                      --            --           237          237
                                                                                           ----------
          Total comprehensive income                                                           27,340
Non-cash compensation expense                          5,166            --            --        5,166
Issuance of common stock                                 803            --            --          806
Issuance of common stock in initial
      public offering, net of direct offering
      expenses of $16,600                            163,612            --            --      163,698
Redemption of common stock                              (641)           --            --         (643)
                                                  ----------    ----------    ----------   ----------
Balance at December 31, 2003                         206,831        97,885           237      305,489
                                                  ==========    ==========    ==========   ==========	

See accompanying notes to consolidated financial statements.
F-5
 
NELNET, INC. AND SUBSIDIARIES
 Consolidated Statements of Cash Flows
Years ended December 31, 2003, 2002 and 2001

                                                                                            2003           2002           2001
                                                                                         -----------    -----------    -----------
                                                                                                  (Dollars in thousands)
Net income                                                                               $    27,103         48,538          7,147
Adjustments to reconcile net income to net cash provided by operating activities:
       Depreciation and amortization, including premiums                                     101,375         93,864         45,301
       Derivative market value adjustment                                                      1,170            579          2,962
       Ineffectiveness of cash flow hedge                                                       (118)            --             --
       Non-cash compensation expense                                                           5,166             --             --
       Deferred income tax benefit                                                            (3,197)        (8,475)       (11,363)
       Minority interest in subsidiary (loss) income                                            (109)          (376)           598
       Provision for loan losses                                                              11,475          5,587          3,925
       Decrease (increase) in accrued interest receivable                                    (19,618)         3,619        (14,661)
       Decrease (increase) in accounts receivable                                             (2,451)           918         13,286
       Decrease (increase) in other assets                                                    (7,738)        (7,608)        18,107
       Decrease in accrued interest payable                                                   (3,072)          (894)        (3,554)
       Increase (decrease) in other liabilities                                               43,013         (1,542)        19,744
                                                                                         -----------    -----------    -----------
              Net cash provided by operating activities                                      152,999        134,210         81,492
                                                                                         -----------    -----------    -----------
Cash flows from investing activities:
       Originations, purchases and consolidations of student loans, including premiums    (3,566,803)    (2,541,071)      (774,959)
       Purchases of student loans, including premiums, from a related party                 (735,540)      (377,788)      (666,350)
       Net proceeds from student loan principal payments and loan consolidations           2,325,531      1,724,077        529,190
       Net purchases of furniture and equipment                                              (16,361)       (13,408)        (6,264)
       Increase in restricted cash - held by trustee                                         (63,560)      (357,045)       (50,186)
       Purchases of restricted investments - held by trustee                                (449,959)      (318,822)      (302,050)
       Proceeds from maturities of restricted investments - held by trustee                  442,610        267,089        296,405
       Acquisitions of subsidiaries, net of cash acquired                                     (1,760)       (20,809)      (102,184)
                                                                                         -----------    -----------    -----------
              Net cash used in investing activities                                       (2,065,842)    (1,637,777)    (1,076,398)
                                                                                         -----------    -----------    -----------
Cash flows from financing activities:
       Payments on bonds and notes payable                                                (2,350,860)    (2,259,769)      (324,561)
       Proceeds from issuance of bonds and notes payable                                   4,269,849      3,781,474      1,338,959
       Payment of debt issuance costs                                                        (11,739)       (11,429)        (8,325)
       Cash distributions to shareholders                                                         --         (2,994)            --
       Payments for redemption of common stock                                                  (643)            --             --
       Proceeds from issuance of common stock                                                164,504             --          2,010
                                                                                         -----------    -----------    -----------
              Net cash provided by financing activities                                    2,071,111      1,507,282      1,008,083
                                                                                         -----------    -----------    -----------
              Net increase in cash and cash equivalents                                      158,268          3,715         13,177
Cash and cash equivalents, beginning of period                                                40,155         36,440         23,263
                                                                                         -----------    -----------    -----------
Cash and cash equivalents, end of period                                                 $   198,423         40,155         36,440
                                                                                         ===========    ===========    ===========
Supplemental disclosures of cash flow information:
       Interest paid                                                                     $   190,615        222,528        227,198
                                                                                         ===========    ===========    ===========
       Income taxes paid                                                                 $    21,635         40,098         14,777
                                                                                         ===========    ===========    ===========	

Supplemental disclosures of noncash operating, investing and financing activities regarding acquisitions and cash flow hedges are contained in notes 1 and 13, respectively.
See accompanying notes to consolidated financial statements.
F-6
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 2003, 2002 and 2001
(1) Corporate Structure
(a) Corporate Organization
Nelnet, Inc. ("Nelnet" or the "Company") is a vertically integrated education finance company, which, together with its subsidiaries, is focused on providing quality products and services to participants in the education finance process. Nelnet is an originator, holder, and servicer of education loans and offers a broad range of financial services and technology-based products, including student loan origination and lending, student loan and guarantee servicing and a suite of software solutions.
The Company owns the stock of various corporations which are engaged in the securitization of education finance assets. The Company's student lending subsidiaries described below are separate entities holding beneficial interests in eligible loans, subject to creditors with specific interests. The liabilities of the Company's student lending subsidiaries are not the liabilities of the Company or any of its other subsidiaries and cannot be consolidated in the event of bankruptcy. The transfers of student loans to the eligible lender trusts do not qualify as sales under the provisions of Statement of Financial Accounting Standards ("SFAS") No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities ("SFAS No. 140"), as the trusts continue to be under the effective control of the Company. All the financial activities and related assets and liabilities, including debt, of the securitizations are reflected in the Company's consolidated financial statements. The following subsidiaries of the Company hold the financial assets (collectively referred to as the "Student Lending Subsidiaries"):

NELNET Student Loan Corporation-1 ("Nelnet-1")
NELNET Student Loan Corporation-2 ("Nelnet-2")
Nelnet Student Loan Funding LLC ("Nelnet SLF")
Nelnet Education Loan Funding, Inc. (formerly known as NEBHELP, Inc.) ("NELF")
MELMAC, Inc. and subsidiaries ("MELMAC")
NHELP-I, Inc. ("NHELP-I")
NHELP-II, Inc. and subsidiary ("NHELP-II")
NHELP-III, Inc. ("NHELP-III")
Nelnet Student Loan Warehouse Corporation-1 ("Nelnet SLWC-1")
NELnet Private Student Loan Corporation-1 ("Nelnet Private-1")
EFS Finance Co. ("EFS Fin Co.") and its subsidiary, EMT Corporation ("EMT Corp.")	

Nelnet-1, Nelnet-2, Nelnet SLF, NELF, NHELP-II, Nelnet Private-1, MELMAC, and EMT Corp. finance eligible student loan assets on a more permanent basis, as the assets are funded with bonds and notes payable, which have longer maturities. NHELP-I, NHELP-III, Nelnet SLWC-1, select operating lines within NELF, and EFS Fin Co. are warehouse facilities designed to fund student loan assets on a temporary basis until the assets are moved to another Student Lending Subsidiary to provide more permanent financing.
The Company also provides managerial, administrative support, loan servicing, origination processing, computer software development, broker-dealer activities and marketing to the Student Lending Subsidiaries through the following wholly owned subsidiary management companies: National Education Loan Network, Inc. ("NELN"); Nelnet Marketing Solutions, Inc. ("NMS") and subsidiaries, including its 100% owned subsidiary (80% owned through February 28, 2003), Student Partner Services, Inc ("SPS"); Nelnet Guarantee Services, Inc. and GuaranTec LLP (collectively, "NGS"); EFS Services, Inc. ("EFS Services"); Charter Account Systems, Inc. ("Charter"); Idaho Financial Associates, Inc. ("IFA"); UFS Securities, LLC ("UFS Securities") and its 100% owned subsidiary, Shockley Financial Corp.; and Nelnet Corporate Services, Inc. (formerly known as Nelnet Corporation).
Nelnet is the legal parent of NELN. Through May 15, 2002, Nelnet also owned 91.43% of Infovisa, Inc. and its subsidiary ("Infovisa"). Infovisa primarily developed and provided software systems for financial institutions. Effective May 15, 2002, Nelnet sold its ownership of Infovisa to Farmers & Merchants Investment Inc. ("F&M") at carrying value, which approximated fair value.
F-7
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
(b) Description of Business
The Student Lending Subsidiaries are organized as special-purpose bankruptcy remote entities which primarily invest in eligible student loans, through an eligible lender trustee, issued under Title IV of the Higher Education Act of 1965, as amended (the "Act"). Nelnet Private-1 also invests in self-insured or privately-insured student loan programs through an eligible lender trustee.
Student loans beneficially owned by the Student Lending Subsidiaries include those originated under the Federal Family Education Loan Program ("FFELP" or "FFEL program"), including the Stafford Loan Program ("SLP"), the Parent Loan Program for Undergraduate Students ("PLUS") program, the Supplemental Loans for Students ("SLS") program, and loans which consolidate certain borrower obligations ("Consolidation"). Title to the student loans is held by eligible lender trustees under the Act for the benefit of the Student Lending Subsidiaries. The financed eligible loan borrowers are geographically located throughout the United States. The bonds and notes payable outstanding are payable primarily from interest and principal payments on the student loans, as specified in the resolutions authorizing the sale of the bonds and notes.
The Company's business is comprised of four primary product and service offerings:
o Asset management, including student loan originations and acquisitions. The Company provides student loan sales, marketing, originations, acquisition, and portfolio management. The Company owns a large portfolio of student loan assets through the Student Lending Subsidiaries. The Company generates loans owned in special purpose lending facilities through direct origination or through acquisition of loans. The Company generates the majority of its earnings from the spread between the yield it earns on its student loan portfolio and the cost of funding these loans. The Company also provides marketing and sales support and managerial and administrative support related to its asset generation activities, as well as those performed for its branding partners or other lenders who sell such loans.
o Student loan servicing. The Company services its student loan portfolio and the portfolios of third parties. As of December 31, 2003, the Company serviced or provided complete outsourcing of servicing activities for more than $18.7 billion in student loans, including $9.2 billion of loans in its portfolio. The servicing activities provided include loan origination activities, application processing, borrower updates, payment processing, claim processing and due diligence procedures. These activities are performed internally for the Company's own portfolio, in addition to generating fee revenue when performed for third-party clients.
o Guarantee servicing. The Company provides servicing support to guaranty agencies, which includes system software, hardware and telecommunication support, borrower, and loss updates, default aversion tracking services, claim processing services and post-default collection services. As of December 31, 2003, the Company provided servicing support to agencies that guarantee more than $20 billion of FFELP loans. These activities generate fee revenue in addition to expanding the Company's relationship with other participants in the education finance sector.
o Servicing software. The Company provides student loan servicing software internally and to third-party student loan holders and servicers. As of December 31, 2003, the software products were used to service $46 billion in student loans, which included $27 billion serviced by third parties using the Company's software. The Company earns software license and maintenance fees annually from third party clients for use of this software. The Company also provides computer consulting, custom software applications and customer service support.
F-8
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
(c) Acquisitions
Nelnet Guarantee Services, Inc., a wholly owned subsidiary of NELN, commenced its business operations in June 2001. On June 30, 2001, it acquired 51% of the voting control of GuaranTec, LLP ("GuaranTec") for $2.6 million. On January 1, 2002, NELN acquired the remaining 49% of GuaranTec for $4.5 million from F&M. The excess purchase price over F&M's carrying value was $3.0 million. As the 49% interest was acquired from an entity under common control with the Company, the excess purchase price was recorded as a dividend distribution in the consolidated statement of shareholders' equity in 2002.
On January 1, 2001, NELN acquired MELMAC and its wholly owned subsidiaries, MELMAC LLC and MELMAC Enterprises, Inc., for approximately $30 million. The acquisition was accounted for under purchase accounting. The assets and liabilities of MELMAC and its subsidiaries were recorded at fair value. An intangible asset, representing loan origination rights, of approximately $6.4 million was recorded and is being amortized over its estimated useful life of three years. The results of operations of MELMAC have been included in the consolidated financial statements since the date of acquisition.
On December 21, 2001, NELN acquired all of the outstanding stock of EFS, Inc. ("EFS") and its wholly owned subsidiaries, EMT Corp., EFS Services, EFS Fin Co. and Advantage Network, Inc., for approximately $141 million. The acquisition was accounted for under purchase accounting. The assets and liabilities of EFS and its subsidiaries were recorded at fair value. An intangible asset, representing lender relationships and loan origination rights, of approximately $4 million was recorded and is being amortized over its estimated useful life of three years. The results of operations of EFS have been included in the consolidated financial statements since the date of acquisition.
NELN acquired MELMAC and EFS to increase its market share in the student lending industry. The allocation of the purchase price for the MELMAC and EFS acquisitions is shown below (dollars in thousands):

Loans                                       $ 3,021,791
Other assets                                    219,068
Intangible assets                                10,385
Bonds and notes payable                      (3,055,403)
Other liabilities                               (24,455)
                                            -----------
                 Total purchase price       $   171,386
                                            ===========	

On January 2, 2002, NELN acquired IFA for approximately $17 million. The acquisition was accounted for under purchase accounting. The assets and liabilities of IFA were recorded at fair value. An intangible asset, representing servicing system software and other intellectual property, of $14.2 million was recorded and is being amortized over its estimated useful life of three years. The results of operations of IFA have been included in the consolidated financial statements since the date of acquisition.
On May 9, 2002, NELN acquired Charter for approximately $7 million. The acquisition was accounted for under purchase accounting. The assets and liabilities of Charter were recorded at fair value. An intangible asset, representing servicing system software and other intellectual property, of $6.8 million was recorded and is being amortized over its estimated useful life of three years. Goodwill of $2.6 million was also recorded. The results of operations of Charter have been included in the consolidated financial statements since the date of acquisition.
F-9
 
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
NELN acquired IFA and Charter to provide student loan servicing software solutions to the student lending industry. The allocation of the purchase price for the IFA and Charter acquisitions is shown below (dollars in thousands):

Cash and investments                       $  2,972
Accounts receivable                           1,390
Intangible assets                            23,612
Deferred revenue and other liabilities       (4,193)
                                           --------
                 Total purchase price      $ 23,781
                                           ========	

On August 7, 2003, the Company acquired UFS Securities for $2.6 million from affiliated parties. The acquisition was accounted for under purchase accounting. The results of operations of UFS Securities have been included in the consolidated financial statements since the date of acquisition. This acquisition is immaterial to the consolidated financial statements.
The following unaudited pro forma information presents the combined results of the Company as though the 2002 and 2001 acquisitions occurred on January 1, 2001. The pro forma financial information does not necessarily reflect the results of operations if the acquisitions had been in effect at the beginning of the period or which may be attained in the future.

                                                          Year ended
                                                      December 31, 2001
                                                      -------------------
                                                     (Dollars in thousands)
                                                           (Unaudited)
Net interest income                                        $   153,764
Other income                                                   125,985
Net income                                                 $    11,905
                                                           ===========
Weighted average shares outstanding, basic and diluted      44,331,490
Earnings per share, basic and diluted                      $      0.27
                                                           ===========	

The pro forma information presenting the combined operations of the Company as though the 2003 and 2002 acquisitions occurred on January 1, 2003 and January 1, 2002, respectively, is not significantly different than actual 2003 or 2002 results.
In June 2001, the Financial Accounting Standards Board issued SFAS No. 141, Business Combinations ("SFAS No. 141"), and SFAS No. 142, Goodwill and Other Intangible Assets ("SFAS No. 142"). SFAS No. 141 requires that the purchase method of accounting be used for all business combinations. SFAS No. 141 specified criteria that intangible assets acquired in a business combination must meet to be recognized and reported separately from goodwill. SFAS No. 142 requires that goodwill and intangible assets with indefinite useful lives no longer be amortized, but instead tested for impairment at least annually in accordance with the provisions of SFAS No. 142. SFAS No. 142 also requires that intangible assets with estimable useful lives be amortized over their respective estimated useful lives to their estimated residual values.
The Company adopted the provisions of SFAS No. 141 as of July 1, 2001 and SFAS No. 142 as of January 1, 2002. Upon adoption of SFAS No. 142, the Company was required to evaluate its existing intangible assets and goodwill that were acquired in purchase business combinations and to make any necessary reclassifications in order to conform with the new classification criteria in SFAS No. 141 for recognition separate from goodwill. The Company was also required to reassess the useful lives and residual values of all intangible assets acquired and make any necessary amortization period adjustments by the end of the first interim period after adoption. Based on this evaluation, no reclassifications or changes to useful lives or residual values were made.
F-10
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
(2) Recapitalization
Effective August 14, 2003, the shareholders of the Company approved amended and restated articles of incorporation. The amended and restated articles of incorporation effected a recapitalization of the Company whereby each share of Class A voting common stock, and each share of Class B nonvoting common stock held by two principal shareholders and a related entity (the "Principal Shareholders"), was converted into 210 shares of new Class B common stock, and each share of Class B nonvoting common stock (other than these owners by the Principal Shareholders) was converted into 210 shares of new Class A common stock. Also, effective with the conversion of the Class B shares to Class A, certain former Class B shareholders converted their new Class B shares into new Class A shares. The new Class B common stock has ten votes per share, and the new Class A common stock has one vote per share. Each Class B share is convertible at any time at the holder's option into one Class A share. With the exception of the voting rights and the conversion feature, the Class A and Class B shares are identical in terms of other rights, including dividend and liquidation rights. The Company's shareholders' equity has been restated to reflect the new capital stock structure for all periods presented.
On December 11, 2003, the Company consummated an initial public offering. The Company sold 8,000,000 shares of Class A common stock at a price of $21 per share for net proceeds of $152.2 million. On December 22, 2003, the underwriters exercised their over-allotment option and purchased an additional 586,800 shares at $21 per share which yielded net proceeds to the Company of $11.5 million.
(3) Summary of Significant Accounting Policies and Practices
(a) Consolidation
The consolidated financial statements include the accounts of the Company and its subsidiaries. All significant intercompany balances and transactions have been eliminated in consolidation. As discussed in note 1(a), the Company consolidates all special purpose entities in accordance with SFAS No. 140. Unconsolidated entities which the Company does not control are recorded using the equity method of accounting.
(b) Student Loans Receivable
Investments in student loans, including premiums, are recorded at cost, net of premium amortization and the allowance for loan losses. Student loans consist of federally insured student loans, private student loans, and student loan participations.
(c) Allowance for Loan Losses
The allowance for loan losses is estimated and established through a provision charged to expense. Losses are charged against the allowance when management believes the collectibility of the loan principal is unlikely. Recovery of amounts previously charged off is credited to the allowance for loan losses.
For the FFELP loan portfolio, the Company considers trends in student loan claims rejected for payment by guarantors and the amount of FFELP loans subject to the 2% risk sharing. The allowance is based on periodic evaluations of the Company's loan portfolios considering past experience, changes to federal student loan programs, current economic conditions and other relevant factors. FFELP loans are guaranteed as to both principal and interest, and, therefore, continue to accrue interest until the time they are paid by the guaranty agency. The allowance is maintained at a level management believes is adequate to provide for estimated probable credit losses inherent in the loan portfolio. This evaluation is inherently subjective as it requires estimates that may be susceptible to significant changes.
F-11
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
In determining the adequacy of the allowance for loan losses on the private loans, the Company considers several factors including: loans in repayment versus those in a nonpaying status, months in repayment, delinquency status, type of program, and trends in defaults in the portfolio based on Company and industry data. The Company places a private loan on nonaccrual status and charges off the loan when the collection of principal and interest is 120 days past due.
Management believes that the allowance for loan losses is adequate. While management uses available information to recognize probable loan losses, future additions to the allowance for loan losses may be necessary based on changes in economic and other conditions.
(d) Cash and Cash Equivalents
For purposes of the consolidated statements of cash flows, the Company considers all investments with maturities when purchased of three months or less to be cash equivalents.
(e) Restricted Cash and Restricted Investments - Held by Trustee
The Company's restricted cash and restricted investments are held by the trustees in various accounts, subject to use restrictions imposed by the trust indenture. The Company recognizes all restricted cash and restricted investments held by trustees on the consolidated balance sheets.
(f) Restricted Cash-Due to Loan Program Customers/Due to Loan Program Customers
As a servicer of student loans, Nelnet collects student loan remittances and subsequently disburses these remittances to the appropriate lending entities. In addition, Nelnet requests funding from lenders and subsequently disburses loan funds to borrowers and schools on behalf of borrowers. Cash collected for customers and the related liability are included in the accompanying consolidated balance sheets. Interest income earned, net of service charges, by the Company on this cash for the years ended December 31, 2003, 2002 and 2001 was $213,000, $930,000 and $2.1 million, respectively.
(g) Intangible Assets
Intangible assets, consisting of loan servicing contracts, lender relationships and loan origination rights, and servicing system software and other intellectual property, are being amortized on a straight-line basis over the expected periods to be benefited, ranging from 30 to 36 months. Goodwill resulting from acquisitions is not being amortized.
(h) Furniture, Equipment, and Leasehold Improvements
Furniture and equipment are carried at cost, net of accumulated depreciation. Maintenance and repairs are charged to expense as incurred, and major improvements, including leasehold improvements, are capitalized. Gains and losses from retirement of furniture, equipment and leasehold improvements are included in determining net income. The Company uses accelerated and straight-line methods for recording depreciation and amortization. Accelerated methods are used for certain equipment and software when this method is believed to provide a better matching of income and expenses.
(i) Software Development Costs
Certain direct development costs associated with internal-use software are capitalized, including external direct costs of services and payroll costs for employees devoting time to the software projects. These costs are included in furniture, equipment and leasehold improvements and are amortized over a period of three years beginning when the asset is placed into service. During the years ended December 31, 2003 and 2001, the Company capitalized $1.4 million and $1.2 million, respectively, in costs related to internal-use software development. No costs were capitalized for the year ended December 31, 2002.
F-12
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
Maintenance costs and research and development costs relating to software to be sold or leased are expensed as incurred.
(j) Other Assets
Other assets are recorded at cost or amortized cost and consist primarily of prepaid bond insurance, debt issuance costs, deferred tax assets and income taxes receivable. Prepaid bond insurance and debt issuance costs are amortized using the straight-line method and effective interest methods, respectively, over the estimated lives of the bonds and notes payable.
(k) Program Reimbursement Reserve
The program reimbursement reserve, which is included in other liabilities, represents the amount of student loans that management estimates the Company will be required to repay to lenders, for which the Company performs servicing, due to the Company's failure to follow prescribed due diligence procedures. The program reimbursement reserve is established through a provision for losses charged to expense. The amount of provision is based on management's evaluation of the servicing portfolio as it relates to the complex due diligence requirements that must be followed to maintain the Department of Education (the "Department") guarantee on the loans. Failure to meet certain due diligence requirements will cause a loss of guarantee on the loans and potential loss to the Company if it is unable to cure the condition under procedures prescribed by the federal government.
Serviced student loans are charged against the allowance when they lose their Department guarantee and the Company is required to reimburse the lender. Loans that are subsequently returned to a repayment status can reacquire their guaranteed status, and such amounts are then credited to the program reimbursement reserve as recoveries.
Management believes that the program reimbursement reserve is adequate. While management uses available information to determine the adequacy of the reserve and to recognize losses, future additions to the reserve may be necessary based on changes in federal policy, economic conditions, or management's performance relating to compliance with the Department's due diligence requirements.
(l) Revenue Recognition - Software Services
Charter and IFA account for software revenues in accordance with the AICPA's Statement of Position 97-2, Software Revenue Recognition ("SOP 97-2"). SOP 97-2 provides guidance on when and in what amounts income should be recognized for licensing, selling, leasing or otherwise marketing computer software. Income for contracts with customers that does not require significant production, modification, or customization of software is recognized when all the following criteria are met: persuasive evidence of an arrangement exists, delivery has occurred, vendors fee is fixed and determinable, and collectibility is probable. Income paid on maintenance and enhancement agreements for services to be performed in subsequent periods is deferred and recognized in income over the life of the agreements. Deferred revenue of approximately $1.3 million and $0.9 million is included in other liabilities on the accompanying consolidated balance sheets at December 31, 2003 and 2002, respectively.
(m) Minority Interest
In 2001, minority interest reflects the proportionate share of shareholders' equity and income of GuaranTec's minority stockholder. In 2003 and 2002, minority interest reflects the proportionate share of shareholders' equity and loss of SPS's minority stockholders.
F-13
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
Nelnet allocated Infovisa's income or loss proportionately between Nelnet's percentage interest and the remaining percentage minority interest. When losses applicable to the minority interest exceeded the minority interest in equity capital, such excess was charged against Nelnet's interest as a charge to retained earnings in Nelnet's shareholders' equity. When earnings were generated applicable to the minority interest, Nelnet's interest was credited through retained earnings to the extent of losses previously charged to retained earnings. For purposes of reporting on the Company, these changes are reflected in additional paid-in capital, as retained earnings are those of NELN. During 2002, Infovisa was sold to F&M and the minority interest loss was recaptured through additional paid-in capital at the date of sale.
(n) Accounting for Derivatives and Hedging Activities
Effective January 1, 2001, the Company adopted SFAS No. 133, Accounting for Derivative Instruments and Hedging Activities, as amended by SFAS No. 138, Accounting for Certain Derivative Instruments and Certain Hedging Activities, an Amendment of FASB Statement No. 133 ("SFAS No. 133"). These statements establish accounting and reporting standards for derivative instruments and hedging activities, as defined, including certain derivative instruments embedded in other contracts, and requires that an entity recognize all derivatives as either assets and liabilities in the balance sheet and measure them at fair value. The fair value of the Company's derivative instruments is determined from market quotes from independent security brokers.
The Company has entered into certain derivative instruments such as interest rate swaps, caps, and basis swaps as part of managing its interest rate risk. Interest rate swaps are used to exchange fixed and floating rate interest payment obligations while caps are used to protect the Company's income statement from unfavorable movements in interest rates while allowing benefit from favorable movements. Basis swaps are used to convert variable-rate debt from one interest rate index to another to match the interest rate characteristics of the assets. The Company uses basis swaps to change the index of the LIBOR-based debt to better match the cash flows of student loan assets.
All derivative instruments that qualify for hedge accounting pursuant to SFAS No. 133, as amended, are recorded at fair value and classified either as a hedge of the fair value of a recognized asset or liability ("fair value hedge") or as a hedge of the variability of cash flows to be received or paid to a recognized asset or liability or a forecasted transaction ("cash flow hedge"). For all hedging relationships, the Company formally documents the hedging relationship and its risk-management objective and strategy for undertaking the hedge, the hedging instrument, the items hedged, the nature of the risk being hedged, how the hedging instrument's effectiveness in offsetting the hedged risk will be assessed, and a description of the method of measuring effectiveness. This process includes linking all derivatives that are designated as fair value or cash flow hedges to specific assets and liabilities on the balance sheet or to specific forecasted transactions. The Company also formally assesses, both at the hedge's inception and on an ongoing basis, whether the derivatives that are used in hedging transactions are highly effective in offsetting changes in fair values or cash flows of hedged items.
Changes in the fair value of a derivative instrument that is highly effective and designated and qualifies as a fair value hedge and the offsetting changes in the fair value of the hedged item are recorded in the income statement. Changes in the fair value of a derivative instrument that is highly effective and designated and qualifies as a cash flow hedge are recognized in other comprehensive income to the extent that the derivative is effective as a hedge, until earnings are affected by the variability in cash flows of the designated hedged item. The Company performs an assessment, both at inception of the hedge and on a quarterly basis thereafter, to determine whether these derivative instruments are highly effective in offsetting changes in the value of the hedged items. Any change in fair value resulting from hedge ineffectiveness is immediately recorded in the income statement.
F-14
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
The Company discontinues hedge accounting prospectively when it is determined that the derivative is no longer effective in offsetting changes in the fair value or cash flows of the hedged item, the derivative expires or is sold, terminated or exercised, the derivative is dedesignated as a hedging instrument, because it is unlikely that a forecasted transaction will occur, or management determines that designation of the derivative as a hedging instrument is no longer appropriate.
Changes in the fair value of derivative instruments that do not qualify for hedge accounting are reported in current period earnings.
(o) Impairment of Long-Lived Assets
Long-lived assets, such as furniture and equipment, purchased intangibles subject to amortization and goodwill, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to estimated undiscounted future cash flows expected to be generated by the asset. If the carrying amount of an asset exceeds its estimated future cash flows, an impairment charge is recognized by the amount by which the carrying amount of the asset exceeds the fair value of the asset. There were no impairments of long-lived assets in 2003, 2002 or 2001.
(p) Student Loan Income
The Company recognizes student loan income using the interest method, net of amortization of premiums and capitalized direct origination and acquisition costs. Loan income is recognized based on the expected yield of the loan after giving effect to borrower utilization of incentives for timely payment ("borrower benefits") and other yield adjustments. The effect of the borrower benefits on student loan yield are based on borrowers who are eligible for the incentives. The interest is paid by the Department or the borrower, depending on the status of the loan at the time of the accrual. In addition, the Department makes quarterly interest subsidy payments on certain qualified FFELP loans until the student is required under the provisions of the Act to begin repayment. Repayment of FFELP loans normally begins within six months after completion of the loan holders course of study, leaving school or ceasing to carry at least one-half the normal full-time academic load as determined by the educational institution. Repayment of PLUS loans normally begins within 60 days from the date of loan disbursement, and repayment of SLS loans begins within one month after completion of course study, leaving school or ceasing to carry at least the normal full-time academic load as determined by the educational institution. Repayment on private loans typically begins six months following a borrower's graduation from a qualified institution and the interest is either paid by the borrower or capitalized annually or at repayment.
The Department provides a special allowance to lenders participating in the FFEL program. The special allowance is accrued using the interest method based upon the average rate established in the auction of 13-week Treasury Bills in the previous quarter relative to the yield of the student loan. Under certain circumstances, the special allowance is reduced by approximately one-half for loans which were originated or purchased from funds obtained from issuance of tax-exempt obligations, depending upon the issuance date of the obligation.
Premiums and capitalized direct origination and acquisition costs are amortized over the estimated lives of the related loans in accordance with SFAS No. 91, Accounting for Non-Refundable Fees and Costs Associated with Originating or Acquiring Loans and Initial Direct Costs of Leases. The Company periodically evaluates the assumptions used to estimate the life of the loans. The Company also pays an annual 105 basis point rebate fee on Consolidation loans to the Department. The amortization and fees are netted against student loan income.
F-15
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
(q) Loan Servicing Income
Loan servicing fees are determined according to agreements with customers and are calculated based on the dollar value or number of loans serviced for each customer. Fees are accrued as earned as income on a monthly basis. As of December 31, 2003 and 2002, the Company serviced more than $18.7 billion and $17.9 billion, respectively, of loans, including $9.2 billion and $7.5 billion of Company-owned loans.
(r) Income Tax Expense
Income taxes are accounted for under the asset and liability method. Deferred income tax assets and liabilities are recognized for the future tax consequences attributable to temporary differences between the consolidated financial statement carrying amounts of existing assets and liabilities and their respective income tax basis. Deferred income tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled.
(s) Earnings Per Share
The basic earnings per common share ("EPS") is computed by dividing net income by the weighted average number of common shares outstanding for the periods presented. The weighted average number of shares used for the years ended December 31, 2003, 2002 and 2001, adjusted to reflect the recapitalization referred to in note 2, were 45,501,583, 44,971,290 and 44,331,490, respectively. Nelnet had no common stock equivalents and no potentially dilutive common shares during the periods presented.
(t) Use of Estimates
The preparation of the consolidated financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make a number of estimates and assumptions that affect the reported amounts of assets and liabilities, reported amounts of revenues and expenses, and other disclosures. Actual results could differ from those estimates. The most significant estimates made by management relate to the adequacy of the program reimbursement reserve and allowance for loan losses.
(u) Reclassification
Certain amounts have been reclassified to conform to the 2003 consolidated financial statement presentation.
(4) Restricted Investments - Held by Trustee
NELF and MELMAC's restricted investments are held by a trustee in various accounts subject to use restrictions and consist of guaranteed investment contracts, commercial banking deposits, and repurchase agreements, which are classified as held-to-maturity. Due to the characteristics of the investments, there is no available or active market for these types of financial instruments. These investments are guaranteed and are purchased and redeemed at par value, which equals their cost at December 31, 2003 and 2002. The carrying value of these investments by contractual maturity is shown below:

                                        December 31
                                   ---------------------
                                     2003         2002
                                   --------     --------
                                  (Dollars in thousands)
Over 1 year through 5 years        $  1,714        2,709
After 5 years through 10 years       30,038       20,729
After 10 years                      148,936      149,901
                                   --------     --------
                                   $180,688      173,339
                                   ========     ========	

F-16
 
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
(5) Student Loans Receivable and Concentration of Credit Risk
Student loans receivable at December 31, 2003 and 2002 consisted of the following:

                                                                                 December 31
                                                                         ----------------------------
                                                                            2003              2002
                                                                         -----------      -----------
                                                                             (Dollars in thousands)
FFELP loans                                                              $10,380,181        8,496,760
Privately-insured private loans                                               29,706           23,108
Self-insured private loans                                                    61,581           51,552
                                                                         -----------      -----------
                                                                          10,471,468        8,571,420
Less allowance for loan losses - FFELP loans                                  10,795            9,970
Less allowance for loan losses - Private loans                                 5,231            2,030
                                                                         -----------      -----------
                                                                         $10,455,442        8,559,420
                                                                         ===========      ===========
FFELP allowance as a percentage of ending balance of FFELP loans                0.10%            0.12%
Private allowance as a percentage of ending balance of private loans            5.73%            2.72%
Total allowance as a percentage of ending balance of total loans                0.15%            0.14%	

FFELP loans may be made under the FFEL program by certain lenders as defined by the Act. These loans, including related accrued interest, are guaranteed at their maximum level permitted under the Act by an authorized guaranty agency which has a contract of reinsurance with the Department. The terms of the loans, which vary on an individual basis, generally provide for repayment in monthly installments of principal and interest over a period of up to 20 years. Interest rates on loans may be fixed or variable, will vary based on the average of the 91-day U.S. Treasury bill rate, and currently range from 2.9% to 12.0% (the weighted average rate was 4.5% and 5.3% at December 31, 2003 and 2002, respectively) dependent upon type, terms of loan agreements and date of origination. For FFELP loans, the Student Lending Subsidiaries have entered into trust agreements in which unrelated financial institutions serve as the eligible lender trustees. As eligible lender trustees, the financial institutions act as the eligible lender in acquiring certain eligible student loans as an accommodation to the subsidiaries, which hold beneficial interests in the student loan assets as the beneficiaries of such trusts.
Substantially all FFELP loan principal and related accrued interest is guaranteed as defined by the Act. These guarantees are made subject to the performance of certain loan servicing procedures stipulated by applicable regulations. If these due diligence procedures are not met, affected student loans may not be covered by the guarantees should the borrower default. The Company and its Student Lending Subsidiaries retain and enforce recourse provisions against servicers and lenders under certain circumstances. Such student loans are subject to "cure" procedures and reinstatement of the guarantee under certain circumstances. Also, in accordance with the Student Loan Reform Act of 1993, student loans disbursed prior to October 1, 1993 are fully insured, and loans disbursed subsequent to October 1, 1993 are insured up to 98% of their principal amount and accrued interest.
Student loans receivable also includes private loans. The private loan portfolio consists of privately-insured and self-insured loans. The terms of the private loans, which vary on an individual basis, generally provide for repayment in monthly installments of principal and interest over a period of up to 20 years. Interest rates on the loans will vary based on the average of the 91-day U.S. Treasury Bill or the prime rate. The private loans primarily represent student borrowers in the medical, dental, or physical sciences fields of study. The self-insured private loans are not covered by guarantees or collateral should the borrower default. The privately-insured private loans are insured for 90% of principal and interest.
F-17
 
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
The Company has provided for an allowance for loan losses related to the private loans and FFELP loans. Activity in the allowance for loan losses for the years ended December 31, 2003, 2002 and 2001 is shown below:

                                               2003          2002          2001
                                           --------      --------      --------
                                                  (Dollars in thousands)
Beginning balance                          $ 12,000        10,242         3,614
Transfer from acquisitions                       --            --         4,866
Provision for loan losses                    11,475         5,587         3,925
Loans charged off, net of recoveries         (7,449)       (3,829)       (2,163)
                                           --------      --------      --------
Ending balance                             $ 16,026        12,000        10,242
                                           ========      ========      ========	

(6) Guaranty and Insurance Agencies
At December 31, 2003 and 2002, Nebraska Student Loan Program, Inc., United Student Aid Funds, Inc., Pennsylvania Higher Education Assistance Authority, California Student Aid Commission, New York State Higher Education Services Corporation, Tennessee Student Assistance Corporation, Florida Department of Education Office of Student Financial Assistance, Colorado Student Loan Program and the Finance Authority of Maine were the primary guarantors of the student loans beneficially owned by the Student Lending Subsidiaries. Management periodically reviews the financial condition of its guarantors and does not believe the level of concentration creates an unusual or unanticipated credit risk. In addition, management believes that based on amendments to the Act as a result of reauthorization, the security for and payment of any of the Student Lending Subsidiaries' obligations would not be materially adversely affected as a result of legislative action or other failure to perform on its obligations on the part of any guaranty agency. The Student Lending Subsidiaries, however, offer no absolute assurances to that effect.
Nelnet Private-1 also has a student loan indemnification agreement with a private insurer, under which a portion of the private loans are insured. The agreement indemnifies Nelnet Private-1 for 90% of losses incurred resulting from borrower default. Upon default, all rights of recovery are subrogated to a private insurer. As of December 31, 2003 and 2002, a private insurer insured 33% and 31%, respectively, of the private loans owned by Nelnet Private-1.
(7) Intangible Assets
Intangible assets at December 31, 2003 and 2002 consist of the following:

                                                                                     December 31
                                                                   Useful       ------------------------
                                                                    life           2003         2002
                                                                --------------  -----------  -----------
                                                                                 (Dollars in thousands)
Lender relationship and loan origination rights
     (net of accumulated amortization of $9,613 and $5,655,
    respectively)                                                 36 months     $    1,292        4,765
Loan servicing contracts (net of accumulated amortization
    of $43,610 and $41,824, respectively)                       30-36 months            --        1,786
Servicing systems software and other intellectual property
    (net of accumulated amortization of $13,273 and $6,253,
    respectively)                                                 36 months          7,787       14,807
Goodwill, nonamortizable                                                             2,551        2,551
                                                                                -----------  -----------
                                                                                $   11,630       23,909
                                                                                ===========  ===========	

F-18
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
The Company recorded amortization of $12.8 million, $22.2 million and $18.8 million for the years ended December 31, 2003, 2002 and 2001, respectively. The Company will continue to amortize intangible assets over their remaining useful lives and will record amortization of $8.3 million and $0.8 million in 2004 and 2005, respectively.
(8) Furniture, Equipment and Leasehold Improvements
Furniture, equipment and leasehold improvements at December 31, 2003 and 2002 consist of the following:

                                                              December 31
                                            Useful      ------------------------
                                             life           2003        2002
                                          ------------  -----------  ----------
                                                         (Dollars in thousands)
Computer equipment and software            3-7 years    $   39,418      33,155
Office furniture and equipment            3-10 years        11,794       9,739
Leasehold improvements                    1-10 years         6,073       4,507
                                                        -----------  ----------
                                                            57,285      47,401
Accumulated depreciation and amortization                   38,147      34,491
                                                        -----------  ----------
                                                        $   19,138      12,910
                                                        ===========  ==========	

Depreciation and amortization expense for the years ended December 31, 2003, 2002 and 2001 related to furniture, equipment and leasehold improvements was $10.1 million, $10.1 million and $8.0 million, respectively.
(9) Bonds and Notes Payable
The Student Lending Subsidiaries periodically issue bonds, commercial paper, short-term variable auction rate notes, taxable student loan asset-backed notes and other credit facilities to finance the acquisition of student loans or to refinance existing debt. Most of the bonds and notes payable are primarily secured by the student loans receivable, related accrued interest, and by the amounts on deposit in the accounts established under the respective bond resolutions or financing agreements. The student loan interest margin ("SLIMS") notes are secured by the rights to residual cash flows from certain variable-rate bonds and notes and fixed rate notes. Certain variable-rate bonds and notes and fixed rate bonds of $1.2 billion and $1.0 billion at December 31, 2003 and 2002, respectively, are secured by financial guaranty insurance policies issued by Municipal Bond Investors Assurance Corporation ("MBIA") and Ambac Assurance Corporation.
F-19
 
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
The following table summarizes outstanding bonds and notes payable at December 31, 2003 and 2002 by type of instrument:

                                                                     December 31, 2003
                                                 ------------------------------------------------------
                                                   Carrying      Interest rate
                                                    amount           range           Final maturity
                                                 ------------------------------------------------------
                                                                  (Dollars in thousands)
Variable-rate bonds and notes:
     Bonds and notes based on indices            $  3,203,859    1.17% - 1.87%     05/01/07 - 01/25/37
     Bonds and notes based on auction               5,125,270    1.00% - 1.30%     07/01/05 - 07/01/43
                                                 ------------
              Total variable-rate bonds and notes   8,329,129
Commercial paper and other                          2,064,400    1.11% - 1.40%     05/14/04 - 09/25/24
Fixed-rate bonds and notes                            927,694    5.50% - 6.68%     05/01/05 - 06/01/28
Other secured borrowings                               45,235    1.30% - 6.00%     01/30/04 - 11/01/05
                                                 ------------
              Total                              $ 11,366,458
                                                 ============
                                                                      December 31, 2002
                                                   -----------------------------------------------------
                                                     Carrying    Interest rate
                                                      amount         range            Final maturity
                                                   -----------------------------------------------------
                                                                  (Dollars in thousands)
Variable-rate bonds and notes:
     Bonds and notes based on indices              $ 2,307,013   1.43% - 1.92%     05/01/07 - 12/25/33
     Bonds and notes based on auction                4,563,135   1.40% - 2.77%     07/01/05 - 10/01/36
                                                   -----------
              Total variable-rate bonds and notes    6,870,148
Commercial paper and other                           1,388,579   1.36% - 1.64%     05/01/03 - 12/15/06
Fixed-rate bonds and notes                           1,122,881   5.48% - 6.90%     11/01/03 - 06/01/28
Other secured borrowings                                66,074   1.60% - 6.00%     01/10/03 - 11/01/05
                                                   -----------
              Total                                $ 9,447,682
                                                   ===========	

Variable-rate bonds are long-term bonds with interest rate reset dates ranging from weekly to quarterly based upon auction rates and national indices.
The Company had a $30 million line of credit from an unrelated bank. There was no amount outstanding on this line at December 31, 2003. At December 31, 2002, $30 million was outstanding under this line of credit. The line of credit bore interest at the prime rate (4.00% and 4.25% at December 31, 2003 and 2002, respectively) and was not renewed in February 2004. Interest was payable quarterly or monthly depending on the term of the borrowing.
The Company entered into a commercial paper placement program with an unrelated bank on September 25, 2003. The program allows for issuance up to $35 million. As of December 31, 2003, $12.7 million was outstanding under the commercial paper placement program. The commercial paper placement program bears interest at the current commercial paper rate plus 0.25% or LIBOR plus 2.25% depending on the unrelated bank's ability to place the commercial paper (weighted average rate of 1.40% at December 31, 2003). Interest is payable at maturity of the commercial paper. Additionally, this unrelated bank coordinated a $35 million line of credit with three other unrelated banks. There was no amount outstanding on this line as of December 31, 2003. The commercial paper placement program and the line of credit expire on September 25, 2004.
F-20
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
In May 2002 and October 2002, Nelnet SLF consummated debt offerings of student loan asset-backed notes of $1.0 billion and $1.2 billion, respectively. In connection with these debt offerings, the Company entered into agreements with certain investment banks pursuant to which the Company will pay the investment banks a fee equal in the aggregate to 0.01% and 0.0075% per annum of the principal balance of the May 2002 and October 2002 notes, respectively. These fees are for credit enhancements to the notes whereby the investment banks will provide liquidity advances to the Company in the instance of disintermediation in the spread between student loan interest rates and the notes' interest rates as defined in the agreement. The total amount paid by the Company under these agreements was approximately $155,000 and $72,000 during the years ended December 31, 2003 and 2002, respectively.
Certain warehouse lines are assumed to renew automatically; therefore, the maturities on these warehouse lines are deemed to be greater than five years. Bonds and notes outstanding at December 31, 2003 are due (based on final maturities) in varying amounts as follows (dollars in thousands):

2004                    $   597,575
2005                        221,484
2006                        127,010
2007                        212,923
2008                         81,615
2009 and thereafter      10,125,851
                        -----------
                        $11,366,458
                        ===========	

Generally, bonds bearing interest at variable rates can be redeemed on any interest payment date at par plus accrued interest. Subject to conversion provisions, all bonds and notes are subject to redemption prior to maturity at the option of certain Student Lending Subsidiaries without a prepayment penalty. These provisions include price, conditions precedent, and limitations.
A Student Lending Subsidiary has irrevocably escrowed funds to make the remaining principal and interest payments on previously issued bonds and notes. Accordingly, neither these obligations nor the escrowed funds are included on the accompanying consolidated balance sheets. At December 31, 2003 and 2002, $22.2 million and $20.6 million, respectively, of defeased debt remained outstanding.
The Student Lending Subsidiaries have unused commitments under the various commercial paper and warehouse agreements of $708 million and $416 million at December 31, 2003 and 2002, respectively. At December 31, 2003 and 2002, certain Student Lending Subsidiaries had various short-term borrowing agreements with a maximum aggregate stated amount of $2.8 billion and $1.9 billion, respectively.
Certain bond resolutions contain, among other requirements, covenants relating to restrictions on additional indebtedness, limits as to direct and indirect administrative expenses and maintaining certain financial ratios. Management believes the Company is in compliance with all covenants of the bond indentures and related credit agreements.
(10) Program Reimbursement Reserve
For the years ended December 31, 2003, 2002 and 2001, a provision for losses on program reimbursements of $1.7 million, $1.6 million and $1.2 million, respectively, was recognized, which is included in other expenses in the accompanying consolidated statements of income. Other liabilities in the accompanying consolidated balance sheets include $7.3 million and $6.1 million as an allowance for program reimbursements at December 31, 2003 and 2002, respectively.
F-21
 
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
(11) Income Taxes
Income tax expense for the years ended December 31, 2003, 2002 and 2001 consists of the following components:

                                                        2003           2002           2001
                                                      --------       --------       --------
                                                             (Dollars in thousands)
Current:
     Federal                                          $ 20,742         33,204         15,440
     State                                               1,750          2,950          1,303
                                                      --------       --------       --------
                                                        22,492         36,154         16,743
                                                      --------       --------       --------
Deferred:
     Federal                                            (2,982)        (7,717)       (10,445)
     State                                                (215)          (758)          (918)
                                                      --------       --------       --------
                                                        (3,197)        (8,475)       (11,363)
                                                      --------       --------       --------
                                                      $ 19,295         27,679          5,380
                                                      ========       ========       ========

       The actual  income tax expense  differs  from the  "expected"  income tax
       expense,  computed by applying the 35% federal  statutory  corporate  tax
       rate to income before income tax expense for the years ended December 31,
       2003, 2002 and 2001, as shown below:

                                                        2003           2002           2001
                                                      --------       --------       --------
                                                             (Dollars in thousands)
"Expected" income tax expense                         $ 16,201         26,544          4,594
Increase (decrease) resulting from:
     State tax, net of federal income tax benefit          998          1,425            250
     Noncash compensation expense                        1,808             --             --
     Other, net                                            288           (290)           536
                                                      --------       --------       --------
                                                      $ 19,295         27,679          5,380
                                                      ========       ========       ========
Effective tax rate                                        41.7%          36.5%          41.0%	

F-22
 
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
The Company's deferred income tax assets and liabilities, which are included in other assets as of December 31, 2003 and 2002, consists of the following components:

                                                              December 31
                                                         --------------------
                                                           2003        2002
                                                         -------     -------
                                                        (Dollars in thousands)
Deferred tax liabilities:
     Loan origination services                           $ 5,819       1,866
     Intangible assets                                        --       2,206
     Partnership income                                      161          --
     Furniture, equipment and leasehold improvements         599          --
     Mark-to-market adjustment - derivative instruments      139          --
     Other                                                   350         696
                                                         -------     -------
                 Deferred tax liabilities                  7,068       4,768
                                                         -------     -------
Deferred tax assets:
     Student loans                                        10,539       6,118
     Accrued expenses not currently deductible             1,566       1,007
     Partnership income                                       --       1,235
     Basis in swap contracts                                 389         214
     Intangible assets                                     1,348          --
     Securitization transaction                            1,837       1,057
     Unearned revenue                                      1,103         941
     Furniture, equipment and leasehold improvements          --         400
     Other                                                    --         452
                                                         -------     -------
                 Deferred tax assets                      16,782      11,424
                                                         -------     -------
                 Net deferred income tax asset           $ 9,714       6,656
                                                         =======     =======	

No valuation allowance was considered necessary for the deferred tax assets at December 31, 2003 and 2002. In assessing the realizability of the Company's deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred tax assets will be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the period in which those temporary differences become deductible. Management considers the scheduled reversals of deferred tax liabilities, projected taxable income, carryback opportunities and tax planning strategies in making the assessment of the amount of the valuation allowance.
F-23
 
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
(12) Fair Value of Financial Instruments
The following table summarizes the fair values of the Company's financial instruments at December 31, 2003 and 2002:

                                                                            December 31
                                                     ------------------------------------------------------------
                                                                 2003                          2002
                                                     -----------------------------   ----------------------------
                                                     Fair value     Carrying value   Fair value    Carrying value
                                                                         (Dollars in thousands)
Financial assets:
     Student loans receivable                          $10,628,895    10,455,442     8,659,613     8,559,420
     Cash and cash equivalents                             198,423       198,423        40,155        40,155
     Restricted cash - held by trustee                     634,263       634,263       570,703       570,703
     Restricted investments - held by trustee              180,668       180,688       173,339       173,339
     Restricted cash - due to loan program customers       141,841       141,841       132,375       132,375
     Accrued interest receivable                           196,633       196,633       177,015       177,015
Financial liabilities:
     Bonds and notes payable                            11,417,810    11,366,458     9,471,710     9,447,682
     Accrued interest payable                               17,179        17,179        20,251        20,251
     Due to loan program customers                         141,841       141,841       132,875       132,375
     Derivative instruments                                    677           677            --            --	

(a) Cash and Cash Equivalents, Restricted Cash - Due to Loan Program Customers, Restricted Cash - Held by Trustee, Accrued Interest Receivable/Payable and Due to Loan Program Customers
The carrying amount approximates fair value due to the variable-rate of interest and/or the short maturities of these instruments.
(b) Student Loans Receivable
The fair value of student loans receivable is estimated at amounts recently paid by the Company to acquire a similar portfolio of loans in the market.
(c) Restricted Investments - Held by Trustee
Due to the characteristics of the investments, there is no available or active market for these types of financial instruments. These investments are guaranteed and are purchased and redeemed at par value, which equals their cost.
(d) Bonds and Notes Payable
The fair value of the bonds and notes payable is based on market prices for securities that possess similar credit risk and interest rate risk.
(e) Derivative Instruments
The fair value of the derivative instruments, obtained from market quotes from independent security brokers, was the estimated amount that would have been paid to terminate the respective agreements.
F-24
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
(f) Limitations
The fair value of a financial instrument is the current amount that would be exchanged between willing parties, other than in a forced liquidation. Fair value is best determined based upon quoted market prices. However, in many instances, there are no quoted market prices for the Company's various financial instruments. In cases where quoted market prices are not available, fair values are based on estimates using present value or other valuation techniques. Those techniques are significantly affected by the assumptions used, including the discount rate and estimates of future cash flows. Accordingly, the fair value estimates may not be realized in an immediate settlement of the instrument. SFAS No. 107, Disclosures About Fair Value of Financial Instruments, excludes certain financial instruments and all nonfinancial instruments from its disclosure requirements.
(13) Derivative Financial Instruments
The Company maintains an overall interest rate risk management strategy that incorporates the use of derivative instruments to minimize the economic effect of interest rate volatility. The Company's goal is to manage interest rate sensitivity by modifying the repricing or maturity characteristics of certain balance sheet assets and liabilities so that the net interest margin is not, on a material basis, adversely affected by movements in interest rates. As a result of interest rate fluctuations, hedged assets and liabilities will appreciate or depreciate in market value. Income or loss on the derivative instruments that are linked to the hedged assets and liabilities will generally offset the effect of this unrealized appreciation or depreciation. The Company views this strategy as a prudent management of interest rate sensitivity. Management believes all derivative transactions are economically effective; however, the majority do not qualify for hedge accounting under SFAS No. 133 and thus may adversely impact earnings.
By using derivative instruments, the Company is exposed to credit and market risk. If the counterparty fails to perform, credit risk is equal to the extent of the fair value gain in a derivative. When the fair value of a derivative contract is positive, this generally indicates that the counterparty owes the Company. When the fair value of a derivative contract is negative, the Company owes the counterparty and, therefore, it has no credit risk. The Company minimizes the credit (or repayment) risk in derivative instruments by entering into transactions with high-quality counterparties that are reviewed periodically by the Company's risk committee. The Company also maintains a policy of requiring that all derivative contracts be governed by an International Swaps and Derivative Association Master Agreement.
Market risk is the adverse effect that a change in interest rates, or implied volatility rates, has on the value of a financial instrument. The Company manages market risk associated with interest rates by establishing and monitoring limits as to the types and degree of risk that may be undertaken.
Derivative instruments that are used as part of the Company's interest rate risk management strategy include interest rate swaps, caps and basis swaps. The following table summarizes the Company's derivative instruments as of December 31, 2003.

                                    Notional amounts
                                    by product type
                             -------------------------------
                               Fixed/
                              floating    Basis
 Maturity                    swaps (a)   swaps (b)    Total
---------------------------  ---------  -----------  -------
                                  (Dollars in millions)
                      2004     $1,000        500       1,500
                      2005        150      1,000       1,150
                      2006         --        500         500
                               ------     ------      ------
                     Total     $1,150      2,000       3,150
                               ======     ======      ======
          Fair value (c)       $  0.6       (1.3)       (0.7)
                               ======     ======      ======
----------	

F-25
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
(a) During August and October 2003, the Company entered into interest rate swap agreements with notional amounts of $1 billion and $150 million, respectively. Under the terms of the agreements, the Company receives payments based on a variable interest rate tied to the 30-day LIBOR and makes payments based on fixed interest rates of 1.18% and 1.68%, respectively. The interest rate swap agreements expire in July 2004 and September 2005, respectively.
(b) During August 2003, the Company entered into three basis swap agreements with notional amounts of $500 million, $1 billion and $500 million which expire in May 2004, August 2005 and August 2006, respectively. The basis swap agreements provide for the Company to pay a floating interest rate based on the U.S. Treasury bill rate and receive a floating interest rate based on the 3-month LIBOR rate. This arrangement allows the Company to limit the interest rate sensitivity of the interest rate spread between the hedged assets (student loans) and liabilities (notes payable).
(c) Fair value indicates an estimated amount the Company would receive
(pay) if the contracts were cancelled or transferred to other parties.
The Company accounts for derivative instruments under SFAS No. 133, which requires that every derivative instrument be recorded in the balance sheet as either an asset or liability measured at its fair value. Management has structured all of the Company's derivative transactions with the intent that each is economically effective. As more fully described below, if certain criteria are met, derivative instruments are classified and accounted for by the Company as either fair value or cash flow hedges. If these criteria are not met, the derivative financial instruments are accounted for as trading.
Fair Value Hedges
At December 31, 2003, there were no outstanding derivative instruments accounted for as fair value hedges.
Cash Flow Hedges
Cash flow hedges are generally used by the Company to hedge the exposure of variability in cash flows of a forecasted debt issuance. This strategy is used primarily to minimize the exposure to volatility from future interest rate changes. Gains and losses on the effective portion of a qualifying hedge are accumulated in other comprehensive income (net of tax) and reclassified to current period earnings over the period which the stated hedged transactions impact earnings. Ineffectiveness is recorded immediately to earnings.
In 2003, the Company accounted for one interest rate swap with a notional amount of $150 million that matures in September 2005 as a cash flow hedge. At December 31, 2003, the fair market value for this derivative was approximately $0.5 million. For the year ended December 31, 2003, the ineffectiveness arising from differences between the critical terms of this interest rate swap and the hedged debt obligation was not material to the consolidated financial statements. In addition, the deferred gains for this derivative accumulated in other comprehensive income that are expected to be reclassed to earnings during the next 12 months are not material to the consolidated financial statements.
Trading Activities
When instruments do not qualify as hedges under SFAS No. 133, they are accounted for as trading. All outstanding derivative instruments at December 31, 2003, with the exception noted previously, were accounted for as trading. In addition, the Company accounted for its twelve-month interest rate swap which expired in June 2002 as trading. The change in fair value of trading derivative instruments is recorded in the consolidated statements of income at each reporting date. This derivative market value adjustment was $(1.2) million, $(0.6) million and $(3.0) million for the years ended December 31, 2003, 2002 and 2001, respectively.
(14) Employee Benefit Plans
(a) 401(k) Plans
NELN has a 401(k) savings plan which covers substantially all of their employees. Employees may contribute up to 100% of their pre-tax salary, subject to IRS limitations. The Company made contributions to the plan of approximately $1.7 million, $1.4 million and $518,000 in the years ended December 31, 2003, 2002 and 2001,
F-26
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
respectively. Union Bank & Trust Company ("UB&T") serves as the trustee for the plan. NMS had a separate 401(k) savings plan in 2001. NMS made contributions to the plan of approximately $154,000 for 2001. GuaranTec also had a separate 401(k) savings plan in 2001. GuaranTec made contributions to the plan of approximately $65,000 for the period July 1, 2001 to December 31, 2001. Effective January 1, 2002, employees participating in the NMS and GuaranTec plans became eligible to participate in the NELN 401(k) plan.
EFS maintained two retirement plans which covered substantially all employees. The first was a 401(k) savings plan and the second was a defined contribution pension plan, which is an employee stock ownership plan ("ESOP"). Upon acquisition by NELN, the ESOP sold its shares to NELN and distribution of the cash occurred in 2003. EFS made contributions to the plan of approximately $208,000 for the year ended December 31, 2002. Effective April 1, 2002, employees participating in the EFS 401(k) savings plan became eligible to participate in the NELN 401(k) plan.
(b) Employee Share Purchase Plan
In 2003, the Company adopted an employee share purchase plan pursuant to which employees are entitled to purchase common stock. The employee share purchase plan is intended to enhance the Company's ability to attract and retain employees and to better enable such persons to participate in the Company's long-term success and growth.
A total of 1,000,000 Class A common stock shares are reserved for issuance under the employee share purchase plan, subject to equitable adjustment by the compensation committee in the event of stock dividends, recapitalizations and other similar corporate events. All employees, other than those whose customary employment is 20 hours or less per week, who have been employed for at least six months, or another period determined by the Company's compensation committee not in excess of two years, will be eligible to purchase Class A common stock under the plan. As of December 31, 2003, no shares have been purchased by employees under this plan.
(c) Restricted Stock Plan
In 2003, the Company adopted a restricted stock plan. The restricted stock plan is intended to provide incentives to attract, retain and motivate employees in order to achieve long-term growth and profitability objectives. The restricted stock plan provides for the grant to eligible employees of awards of restricted shares of Class A common stock. An aggregate of 1,000,000 shares of Class A common stock have been reserved for issuance under the restricted stock plan, subject to antidilution adjustments in the event of certain changes in capital structure. Shares of Class A common stock issued pursuant to the restricted stock plan will be either authorized but unissued shares or treasury shares. Unless earlier terminated, the restricted stock plan will expire on November 13, 2013, and no further awards may be granted there under after such date. As of December 31, 2003, no shares have been granted under the restricted stock plan.
(d) Book Value Stock Plan
In March 2003, the Company issued 331,800 shares of Class A common stock at a formula price based on book value to employees of the Company. Each new shareholder was required to sign a shareholder agreement which restricts the sale, assignment, pledge or otherwise transfer of any interest in any of the shares of stock without obtaining the prior written consent of the holders of an aggregate of more than 50% of the Class A shareholders. The Company has the option to redeem the outstanding stock in the event of termination of employment, divorce or change in control at the formula price based on book value at the redemption date.
The Company accounted for the stock issuance by applying the provisions of EITF 88-6, Book Value Stock Plans in an Initial Public Offering ("EITF 88-6"). Because the shareholder agreements did not provide any mechanism that converted the book value stock to market value stock upon completion of an initial public
F-27
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
offering ("IPO"), the Company accounted for the transaction as book value stock that remains book value stock. The book value stock issued in March 2003 was presumed to have been issued in contemplation of the IPO and, thus, was subject to variable-plan ("SAR") accounting for actual changes in the book value of those shares from the date of issuance in accordance with the provisions of EITF 88-6.
Upon the consummation of the IPO, the shareholder agreements were terminated in accordance with an agreement entered into by all shareholders in August 2003. As a result, in the third quarter of 2003 the Company recognized a compensation charge of $5.2 million equal to the difference between the estimated initial public offering price (estimated fair value) of that number of shares and the total price paid by the employees.
(e) Director's Share-Based Compensation Plan
In 2003, the Company adopted a share-based compensation plan for nonemployee directors pursuant to which nonemployee directors will have an election to receive their annual retainer fees in the form of cash or Class A common stock. Up to 100,000 shares may be issued under the plan, subject to antidilution adjustments in the event of certain changes in capital structure. If a nonemployee director elects to receive Class A common stock, the number of shares of Class A common stock that will be awarded will be equal to the amount of the annual retainer fee otherwise payable in cash divided by 85% of the fair market value of a share of Class A common stock on the date the fee is payable. Nonemployee directors who choose to receive Class A common stock may also elect to defer receipt of the Class A common stock until termination of their service on the board of directors. Any dividends paid in respect of deferred shares during the deferral period will also be deferred in the form of additional shares and paid out at termination from the board of directors. The plan may be amended or terminated by the board of directors at any time, but no amendment or termination will adversely affect a nonemployee director's rights with respect to previously deferred shares without the consent of the nonemployee director. As of December 31, 2003, no shares have been granted under the director's share-based compensation plan.
(15) Commitments
The Student Lending Subsidiaries acquire eligible loans on a regular basis from lending institutions as part of their normal business operations. At December 31, 2003 and 2002, the Student Lending Subsidiaries and NELN were committed to purchase up to $287.4 million and $292.7 million, respectively, in student loans at current market rates upon the sellers' request under various agreements through September 30, 2004. Commitments to extend credit are agreements to lend to a borrower as long as there is no violation of any condition established in the commitment agreement. Commitments generally have fixed expiration dates or other termination clauses.
The Company is committed under noncancelable operating leases for office and warehouse space and equipment. Total rental expense incurred by the Company in the years ended December 31, 2003, 2002 and 2001, was $6.1 million, $6.9 million and $3.2 million, respectively. Minimum future rentals under noncancelable operating leases are shown below (dollars in thousands):

2004                    $ 4,950
2005                      4,437
2006                      3,550
2007                      2,680
2008                        693
2009 and thereafter         475
                        -------
                        $16,785
                        =======	

The Company had shareholder agreements with the holders of the vast majority of its common stock. These shareholder agreements restricted the transfer of common stock through sale, pledge, encumbrance or other transfer by
F-28
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
the shareholder, without the written consent of the holders of a majority of the pre-recapitalization common stock. The Company had an option to redeem all or a portion of a shareholder's interest in the event that, among other things, the shareholder ceased to be an officer, director, or employee of the Company. The purchase price, if the Company elected to exercise its redemption option, was the book value of the shares being redeemed. The shareholder agreements terminated upon the consummation of the Company's initial public offering in accordance with an agreement entered into by all shareholders in August 2003.
(16) Related Parties
The Company serviced loans of a related bank of $544 million and $720 million at December 31, 2003 and 2002, respectively. Income earned by Nelnet from this loan servicing in the years ended December 31, 2003, 2002 and 2001 was $5.4 million, $5.5 million and $4.7 million, respectively. At December 31, 2003 and 2002, accounts receivable includes approximately $1.1 million and $371,000, respectively, from this bank for loan servicing.
The Company incurred a consulting management fee for services provided by an entity that is a minority stockholder of the Company. The Company incurred management fee expenses of $1.73 million, $1.75 million and $1.8 million for the years ended December 31, 2003, 2002 and 2001, respectively. This agreement terminated in 2003.
The Company participates in the Short-Term Federal Investment Trust ("STFIT") of the Student Loan Trust Division of a related bank which is included in cash and cash equivalents held at a related party and restricted cash - due to loan program customers on the accompanying consolidated balance sheets. As of December 31, 2003 and 2002, the Company had approximately $71.1 million and $49.3 million, respectively, invested in the STFIT or deposited at this bank in operating accounts, of which approximately $60.9 million and $36.5 million, respectively, is cash collected for customers. The Company's participation in the STFIT had similar terms and investment yields as those prevailing for other nonaffiliated customers. Interest income earned by the Company on the amounts invested in the STFIT for the years ended December 31, 2003, 2002 and 2001 was $1.0 million, $1.7 million and $3.5 million, respectively.
In 2001, the Company entered into an agreement with 5280 Solutions, Inc. ("5280"), an entity with 50% voting interest owned by NELN, to provide certain software development and technology support services. During the years ended December 31, 2003, 2002 and 2001, the Company incurred contract programming expenses of $4.7 million, $7.0 million and $11.8 million, respectively, for these services. At December 31, 2003 and 2002, $496,000 and $1.1 million, respectively, was payable to 5280 and is included in other liabilities in the accompanying consolidated balance sheets.
In March 2002, the Company acquired a 50% ownership interest in FirstMark Services LLC ("FirstMark"). FirstMark agreed to provide subcontracting servicing functions on the Company's behalf with respect to private loan servicing. During the years ended December 31, 2003 and 2002, the Company paid FirstMark fees of approximately $5.5 million and $4.6 million, respectively. FirstMark owed the Company $565,000 and $700,000 at December 31, 2003 and 2002, respectively.
During the years ended December 31, 2003, 2002 and 2001, the Student Lending Subsidiaries purchased student loans of $726 million, $378 million and $666 million, respectively, from a related bank. Premiums paid on these loans totaled approximately $9.5 million, $6.4 million and $8.6 million, respectively. The purchases from this bank were made on terms similar to those made with unrelated entities. During the years ended December 31, 2003, 2002 and 2001, this bank reimbursed the Company for approximately $1.0 million, $519,000 and $1.1 million, respectively, for student loan marketing services. During 2001, the Company also incurred $750,000 for software advisory, consulting services and management fees provided by this bank. The Company has sold to this bank, as trustee, participation interests with balances of approximately $223 million and $149 million as of December 31, 2003 and 2002, respectively. During the year ended December 31, 2003, this bank reimbursed the Company approximately $458,000 and during the years ended December 31, 2002 and 2001, the Company reimbursed this bank approximately $219,000 and $538,000, respectively, for marketing services related to the Nebraska College Savings Plan.
F-29
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
During the year ended December 31, 2002, a related bank paid the Company marketing income of $2.3 million as a broker on a loan sale.
In August 2001, the Company provided a guarantee of liabilities of a bank affiliated with the Company through certain common shareholders and a director in the amount of $10 million. The Company is paid a fee for this indemnification. The Company does not believe it is probable that the Company will be required to make payments on the guarantee. Thus, no liability has been accrued for a loss related to the Company's obligation under this guarantee arrangement.
During the years ended December 31, 2003, 2002 and 2001, the Company paid UFS Securities $1.4 million, $1.4 million, and $0.5 million, respectively, for services related to financings. All payments were made before the acquisition of UFS Securities. These payments have been recorded as debt issuance costs and are included in other assets in the accompanying consolidated balance sheets.
During the years ended December 31, 2002 and 2001, the Company incurred consulting fees of $1.65 million and $3 million, respectively, for services provided by a related party through common ownership in connection with eligible loan purchases. This agreement terminated in 2003. During the years ended December 31, 2003, 2002 and 2001, the Company incurred consulting fees of $1.8 million, $2.4 million and $2.3 million, respectively, for services provided by a significant shareholder. This agreement terminated in 2003. During 2001, NMS and GuaranTec had a service agreement with InTuition Services, Inc. (Services), an entity related through common shareholders prior to acquisition, whereby Services provided certain management and other operational support services for NMS and GuaranTec. Amounts paid by NMS and GuaranTec for such services, including certain occupancy related expenses allocated to NMS and GuaranTec, were $9.7 million in 2001. During 2002, Nelnet Corporate Services provided these operational support services.
During 2001, NELN owned $10 million in preferred stock of a majority owned subsidiary of a significant shareholder. The preferred stock paid a 2% annual cumulative dividend. During 2002, NELN sold the preferred stock to Nelnet at carrying value. Nelnet transferred its ownership in the preferred stock to Infovisa and subsequently sold Infovisa to a significant shareholder at carrying value, which approximated fair value. The operating results of Infovisa were not significant to the consolidated financial statements.
F-30
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
(17) Condensed Parent Company Financial Statements
The following represents the condensed balance sheets as of December 31, 2003 and 2002 and condensed statements of income and cash flows for each of the years in the three-year period ended December 31, 2003 for Nelnet, Inc.
The Company is limited in the amount of funds that can be transferred to it by its subsidiaries through intercompany loans, advances or cash dividends. These limitations relate to the restrictions by trust indentures under the Student Lending Subsidiaries debt financing arrangements. The amounts of cash and investments restricted in the respective reserve accounts of the Student Lending Subsidiaries are shown on the consolidated balance sheets as restricted cash and investments.
Balance Sheets
 (Parent Company Only)

                                                                      December 31
                                                                 ---------------------
                         Assets                                      2003         2002
                                                                 --------     --------
                                                                (Dollars in thousands)
Cash and cash equivalents                                        $157,723        1,137
Restricted cash - due to loan program customers                   141,841      132,375
Investment in subsidiaries                                        135,035       71,064
Accounts receivable                                                20,714       20,151
Other assets                                                       19,008       29,482
                                                                 --------     --------
                 Total assets                                    $474,321      254,209
                                                                 ========     ========
          Liabilities and Shareholders' Equity
Liabilities:
     Bonds and notes payable                                     $ 12,662           --
     Other liabilities                                             14,329       12,712
     Due to loan program customers                                141,841      132,375
                                                                 --------     --------
                 Total liabilities                                168,832      145,087
                                                                 --------     --------
Shareholders' equity:
     Common stock:
        Class A                                                       396          309
        Class B                                                       140          140
     Additional paid-in capital                                   206,831       52,714
     Retained earnings                                             97,885       55,959
     Accumulated other comprehensive income                           237           --
                                                                 --------     --------
                 Total shareholders' equity                       305,489      109,122
                                                                 --------     --------
                 Total liabilities and shareholders' equity      $474,321      254,209
                                                                 ========     ========	

Statements of Income
 (Parent Company Only)

                                                       Year Ended December 31
                                                 ----------------------------------
                                                   2003         2002         2001
                                                 --------     --------     --------
                                                        (Dollars in thousands)
Operating revenues                               $146,952      118,189       87,522
Operating expenses                                118,815      109,853       96,329
                                                 --------     --------     --------
                 Net operating income (loss)       28,137        8,336       (8,807)

Net interest income                                   740        1,515        2,121
Equity in earnings of subsidiaries                 12,076       42,137       11,056
Income tax expense (benefit)                       13,850        3,450       (2,777)
                                                 --------     --------     --------
                 Net income                      $ 27,103       48,538        7,147
                                                 ========     ========     ========	

F-31
 
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
Statements of Cash Flows
 (Parent Company Only)

                                                                   Year Ended December 31
                                                           ---------------------------------------
                                                             2003           2002           2001
                                                           ---------      ---------      ---------
                                                        (Dollars in thousands)
Cash flows from operating activities:
     Net income                                            $  27,103         48,538          7,147
     Adjustments to reconcile net income to net cash
        provided by (used in) operating activities:
           Depreciation and amortization                         870         10,635         17,973
           Noncash compensation expense                        5,166             --             --
           Equity in earnings of subsidiaries                (12,076)       (42,137)       (11,056)
           Decrease in accounts receivable                      (563)        (6,564)          (228)
           Decrease (increase) in other assets                10,277         (1,181)       (17,695)
           Increase (decrease) in other liabilities            1,617         (3,294)         2,382
                                                           ---------      ---------      ---------
                 Net cash provided by (used in)
                    operating activities                      32,394          5,997         (1,477)
                                                           ---------      ---------      ---------
Cash flows from investing activities:
     Cash received on sale of subsidiary                          --          6,051             --
     Acquisition of subsidiaries, net of cash acquired        (1,760)        (1,776)            --
     Purchase of preferred stock of affiliate                     --        (10,000)            --
     Capital contributions to subsidiary                     (50,571)            --             --
                                                           ---------      ---------      ---------
                 Net cash flows used in
                    investing activities                     (52,331)        (5,725)            --
                                                           ---------      ---------      ---------
Cash flows from financing activities:
     Proceeds from issuance of notes payable                  12,662             --             --
     Payments for redemption of common stock                    (643)            --             --
     Proceeds from issuance of common stock                  164,504             --          2,010
                                                           ---------      ---------      ---------
                 Net cash flows provided by
                    financing activities                     176,523             --          2,010
                                                           ---------      ---------      ---------
                 Net increase in cash and
                    cash equivalents                         156,586            272            533
Cash and cash equivalents, beginning of year                   1,137            865            332
                                                           ---------      ---------      ---------
Cash and cash equivalents, end of year                     $ 157,723          1,137            865
                                                           =========      =========      =========
Supplemental cash flow information:
     Cash paid for income tax                              $  21,635          6,677         13,709
                                                           =========      =========      =========
     Cash paid for interest                                $     124             --             --
                                                           =========      =========      =========	

F-32
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)
(18) Segment Reporting
The Company is a vertically integrated education finance organization which has four operating segments as defined in SFAS No. 131, Disclosures about Segments of an Enterprise and Related Information ("SFAS No. 131"), as follows: Asset Management, Student Loan Servicing, Guarantee Servicing and Servicing Software. The Asset Management and Student Loan Servicing operating segments meet the quantitative thresholds identified in SFAS No. 131 as reportable segments and therefore the related financial data is presented below. The Guarantee Servicing and Servicing Software operating segments do not meet the quantitative thresholds and therefore are included as other segments that do not meet the reportable segment criteria. The accounting policies of the reportable segments are the same as those described in the summary of significant accounting policies. Costs excluded from segment net income primarily consist of unallocated corporate expenses, net of miscellaneous revenues. Thus, net income of the segments includes only the costs that are directly attributable to the operations of the individual segment.
The Asset Management segment includes the acquisition, management and ownership of the student loan assets. Revenues are primarily generated from net interest income on the student loan assets. The Company generates student loan assets through direct origination or through acquisition of the loans from branding and forward purchase relationships. The student loan assets are held in a series of student lending subsidiaries designed specifically for this purpose.
The Student Loan Servicing segment provides for the servicing of our own and third parties' student loan portfolios. The servicing activities include application processing, borrower updates, payment processing, claim processing and due diligence procedures. These activities are performed internally for our own portfolio in addition to generating fee revenue when performed for third-party clients.
Substantially all of the Company's revenues are earned from customers in the United States and no single customer accounts for a significant amount of any reportable segment's revenues. Inter-segment revenues are charged by a segment to another segment that provides the product or service. The amount of inter-segment revenue is based on comparable fees charged in the market.
Segment data is as follows:

                                          Asset       Student loan                        Total
                                       management      servicing         Other          segments
                                      -----------     -----------     -----------      -----------
                                                                (Dollars in thousands)
Year ended December 31, 2003:
    Net interest income               $   184,903             740              10          185,653
    Other income                               66          81,087          32,542          113,695
    Intersegment revenues                      --          65,596           2,708           68,304
                                      -----------     -----------     -----------      -----------
                Total revenue             184,969         147,423          35,260          367,652
    Provision for loan losses              11,475              --              --           11,475
    Depreciation and amortization           2,146             872           7,131           10,149
    Income tax expense (benefit)            8,657          13,850            (113)          22,394
    Net income                             46,975          15,027           2,617           64,619
    Total assets (at period end)      $11,497,693         339,286          23,918       11,860,897
                                      ===========     ===========     ===========      ===========	

F-33
 
NELNET, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements - (Continued)

                                        Asset       Student loan                       Total
                                      management     servicing         Other          segments
                                      ----------     ----------      ----------      ----------
                                                         (Dollars in thousands)
Year ended December 31, 2002:
    Net interest income               $  190,667          1,427              42         192,136
    Other income                           1,724         83,866          24,409         109,999
    Intersegment revenues                     --         55,217           1,553          56,770
                                      ----------     ----------      ----------      ----------
                Total revenue            192,391        140,510          26,004         358,905

    Provision for loan losses              5,587             --              --           5,587
    Depreciation and amortization          2,146         12,313           6,473          20,932
    Income tax expense (benefit)          24,988          3,094          (2,528)         25,554
    Net income (loss)                     63,909          9,128          (5,479)         67,558
    Total assets (at period end)      $9,552,699        192,921          29,211       9,774,831
                                      ==========     ==========      ==========      ==========
                                        Asset       Student loan                       Total
                                      management     servicing         Other          segments
                                      ----------     ----------      ----------      ----------
                                                         (Dollars in thousands)
Year ended December 31, 2002:
Year ended December 31, 2001:
    Net interest income               $  117,809          2,365              --         120,174
    Other income                             926         88,379           8,770          98,075
    Intersegment revenues                     --         29,948              --          29,948
                                      ----------     ----------      ----------      ----------
                Total revenue            118,735        120,692           8,770         248,197

    Provision for loan losses              3,925             --              --           3,925
    Depreciation and amortization          2,146         19,854             132          22,132
    Income tax expense (benefit)          14,751           (942)            224          14,033
    Net income (loss)                     29,837         (3,367)            996          27,466
    Total assets (at period end)      $7,913,099        127,283           5,766       8,046,148
                                      ==========     ==========      ==========      ==========	

Reconciliation to the consolidated financial statements is as follows.

                                                      2003          2002           2001
                                                   ---------      ---------      ---------
                                                            (Dollars in thousands)
Total segment revenues                             $ 367,652        358,905        248,197
Elimination of intersegment revenues                 (68,304)       (56,770)       (29,948)
Corporate revenues, net                               (2,044)        14,573         (2,799)
Derivative market value adjustment                    (1,170)          (579)        (2,962)
                                                   ---------      ---------      ---------
                 Total consolidated revenues       $ 296,134        316,129        212,488
                                                   =========      =========      =========
Total net income of segments                       $  64,619         67,558         27,466
Corporate expenses, net                              (37,516)       (19,020)       (20,319)
                                                   ---------      ---------      ---------
                 Total consolidated net income     $  27,103         48,538          7,147
                                                   =========      =========      =========	

F-34

                                                    2003               2002
                                                 ------------      ------------
                                                    (Dollars in thousands)
Total segment assets                             $ 11,860,897         9,774,831
Elimination of intercompany assets                    (30,140)          (96,727)
Assets of other operating activities                  100,752            88,479
                                                 ------------      ------------
                 Total consolidated assets $       11,931,509         9,766,583
                                                 ============      ============	

Net corporate revenues and expenses included in the above table relate to activities that are not related to the four identified operating segments. The net corporate revenues include investment earnings and nonrecurring revenue for marketing services. The net corporate expenses include expenses for marketing, capital markets and other unallocated support services, including income taxes. The net corporate revenues and expenses are not associated with an ongoing business activity as defined by SFAS No. 131 and, therefore, have not been included within the operating segments.
The derivative market value adjustment is the change in the fair value of the Company's derivative instruments, as the majority of the Company's derivative instruments do not qualify for hedge accounting, as discussed in note 13 of the notes to consolidated financial statements. These derivative instruments are not included in the Company's operating segments as they are not related to specific segment assets or liabilities. These risk management agreements are part of corporate activities.
The assets held at the corporate level are not identified with any of the operating segments. Accordingly, these assets are included in the reconciliation of segment assets to total assets. These assets consist primarily of cash, investments, fixed assets, income tax receivables and other deferred assets.
(19) Quarterly Financial Information (Unaudited)

                                                                                2003
                                                        --------------------------------------------------
                                                          First        Second        Third         Fourth
                                                         quarter       quarter       quarter       quarter
                                                        --------      --------      --------      --------
                                                                    (Dollars in thousands)
Net interest income                                     $ 44,255        47,668        41,904        44,785
Less provision for loan losses                            (2,410)       (2,450)       (4,015)       (2,600)
                                                        --------      --------      --------      --------
Net interest income after provision for loan losses       41,845        45,218        37,889        42,185
Derivative market value adjustment                            --            --        (4,632)        3,462
Other income                                              28,709        29,052        30,697        30,234
Operating expenses                                       (55,464)      (60,103)      (63,260)      (59,543)
Income taxes                                              (5,621)       (5,841)       (1,827)       (6,006)
Minority interest in net earnings of subsidiary              109            --            --            --
                                                        --------      --------      --------      --------
Net income (loss)                                       $  9,578         8,326        (1,133)       10,332
                                                        ========      ========      ========      ========
Basic and diluted earnings (loss) per common share      $   0.21          0.19         (0.03)         0.22
                                                        ========      ========      ========      ========	

Certain unusual items occurred in 2003. In the second quarter of 2003, the Company had additional amortization and write-offs of debt issuance costs of $2.6 million as a result of refinancing certain debt transactions. In the third quarter of 2003, the Company recognized a non-cash stock compensation charge of $5.2 million equal to the difference between the product of the estimated initial public offering price and the number of shares issued in March 2003 and the total price paid by the employees. Additionally, in the third quarter of 2003, the Company paid $3.3 million as a result of certain related party contract terminations. In the fourth quarter of 2003, bonuses of $1.8 million related to the termination of employee contracts for IFA were expensed.
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APPENDIX A
THE FEDERAL FAMILY EDUCATION LOAN PROGRAM
The Federal Family Education Loan Program
The Higher Education Act provides for a program of direct federal insurance for student loans as well as reinsurance of student loans guaranteed or insured by state agencies or private non-profit corporations.
The Higher Education Act currently authorizes certain student loans to be covered under the Federal Family Education Loan Program ("FFELP" or "FFEL Program"). The 1998 Amendments to the Higher Education Act extended the authorization for the FFEL Program through September 30, 2004. Congress has extended similar authorization dates in prior versions of the Higher Education Act. However, the current authorization dates may not again be extended and the other provisions of the Higher Education Act may not be continued in their present form.
Generally, a student is eligible for loans made under the FFEL Program only if he or she:
o has been accepted for enrollment or is enrolled in good standing at an eligible institution of higher education;
o is carrying or planning to carry at least one-half the normal full-time workload for the course of study the student is pursuing as determined by the institution;
o has agreed to promptly notify the holder of the loan of any address change; and
o meets the applicable "needs" requirements.
Eligible institutions include higher educational institutions and vocational schools that comply with specific federal regulations. Each loan is to be evidenced by an unsecured note.
The Higher Education Act also establishes maximum interest rates for each of the various types of loans. These rates vary not only among loan types, but also within loan types depending upon when the loan was made or when the borrower first obtained a loan under the FFEL Program. The Higher Education Act allows lesser rates of interest to be charged.
Regulations authorize the Department of Education (the "Department") to limit, suspend or terminate lenders' participation in the FFEL Program, as well as to impose civil penalties, if lenders violate certain program regulations. The regulations also authorize the Department to impose penalties on the servicer and/or limit, suspend or terminate the servicer's eligibility to contract to service FFELP loans if the servicer fails to meet standards of financial responsibility or administrative capability included in the regulations or violates certain other FFELP requirements. The Department conducts frequent on-site audits of our loan servicing activities. Guaranty agencies conduct similar audits on a regular basis. In addition, we engage independent third parties to conduct compliance reviews, as required by the Department, with respect to our own student loan portfolio and the portfolios of our third-party servicing clients.
Types of Loans
Four types of loans are currently available under the FFEL Program:
o Stafford loans,
o Unsubsidized Stafford loans,
o PLUS loans, and
o Consolidation loans.
These loan types vary as to eligibility requirements, interest rates, repayment periods, loan limits and eligibility for interest subsidies and special allowance payments. Some of these loan types have had other names in the past. References to these various loan types include, where appropriate, their predecessors.
The primary loan under the FFEL Program is the subsidized Stafford loan. Students who are not eligible for subsidized Stafford loans based on their economic circumstances may be able to obtain unsubsidized Stafford loans. Parents of students may be able to obtain PLUS loans. Consolidation loans are available to borrowers with existing loans made under the FFEL Program and other
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federal programs to consolidate repayment of the borrower's existing loans. Prior to July 1, 1994, the FFEL Program also offered SLS loans to graduate and professional students and independent undergraduate students and, under certain circumstances, dependent undergraduate students, to supplement their Stafford loans.
Subsidized Stafford Loans
General. Subsidized Stafford loans are eligible for reinsurance under the Higher Education Act if the eligible student to whom the loan is made has been accepted or is enrolled in good standing at an eligible institution of higher education or vocational school and is carrying at least one-half the normal full-time workload at that institution. Subsidized Stafford loans have limits as to the maximum amount which may be borrowed for an academic year and in the aggregate for both undergraduate and graduate/professional study. Both aggregate limitations exclude loans made under the SLS and PLUS programs. The Secretary of Education has discretion to raise these limits to accommodate students undertaking specialized training requiring exceptionally high costs of education.
Subsidized Stafford loans are generally made only to student borrowers who meet the needs tests provided in the Higher Education Act. Provisions addressing the implementation of needs analysis and the relationship between unmet need for financing and the availability of subsidized Stafford loan funding have been the subject of frequent and extensive amendment in recent years. Further amendment to such provisions may materially affect the availability of subsidized Stafford loan funding to borrowers or the availability of subsidized Stafford loans for secondary market acquisition.
Interest rates for subsidized Stafford loans. For a Stafford loan made prior to July 1, 1994, the applicable interest rate for a borrower who, on the date the promissory note was signed, did not have an outstanding balance on a previous FFELP loan:
(1) is 7% per annum for a loan covering a period of instruction beginning before January 1, 1981;
(2) is 9% per annum for a loan covering a period of instruction beginning on or after January 1, 1981, but before September 13, 1983;
(3) is 8% per annum for a loan covering a period of instruction beginning on or after September 13, 1983, but before July 1, 1988;
(4) is 8% per annum for the period from the disbursement of the loan to the date which is four years after the loan enters repayment, for a loan made prior to October 1, 1992, covering a period of instruction beginning on or after July 1, 1988, and thereafter shall be adjusted annually, and for any 12-month period commencing on a July 1 shall be equal to the bond equivalent rate of 91-day U.S. Treasury bills auctioned at the final auction prior to the preceding June 1, plus 3.25% per annum (but not to exceed 10% per annum); or
(5) for a loan made on or after October 1, 1992 shall be adjusted annually, and for any 12-month period commencing on a July 1 shall be equal to the bond equivalent rate of 91-day U.S. Treasury bills auctioned at the final auction prior to the preceding June 1, plus 3.1% per annum (but not to exceed 9% per annum).
For a Stafford loan made prior to July 1, 1994, the applicable interest rate for a borrower who, on the date the promissory note evidencing the loan was signed, had an outstanding balance on a previous loan made insured or guaranteed under the FFEL Program:
(6) for a loan made prior to July 23, 1992 is the applicable interest rate on the previous loan or, if the previous loan is not a Stafford loan, 8% per annum or
(7) for a loan made on or after July 23, 1992 shall be adjusted annually, and for any twelve month period commencing on a July 1 shall be equal to the bond equivalent rate of 91-day U.S. Treasury bills auctioned at the final auction prior to the preceding June 1, plus 3.1% per annum but not to exceed:
o 7% per annum in the case of a Stafford loan made to a borrower who has a loan described in clause (1) above;
o 8% per annum in the case of:
-- a Stafford loan made to a borrower who has a loan described in clause (3) above,
-- a Stafford loan which has not been in repayment for four years and which was made to a borrower who has a loan described in clause
(4) above,
-- a Stafford loan for which the first disbursement was made prior to December 20, 1993 to a borrower whose previous loans do not include a Stafford loan or an unsubsidized Stafford loan;
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o 9% per annum in the case of a Stafford loan made to a borrower who has a loan described in clauses (2) or (5) above or a Stafford loan for which the first disbursement was made on or after December 20, 1993 to a borrower whose previous loans do not include a Stafford loan or an unsubsidized Stafford loan; and
o 10% per annum in the case of a Stafford loan which has been in repayment for four years or more and which was made to a borrower who has a loan described in clause (4) above.
The interest rate on all Stafford loans made on or after July 1, 1994 but prior to July 1, 1998, regardless of whether the borrower is a new borrower or a repeat borrower, is the rate described in clause (7) above, except that the interest rate shall not exceed 8.25% per annum. For any Stafford loan made on or after July 1, 1995, the interest rate is further reduced prior to the time the loan enters repayment and during any deferment periods. During deferment periods, the formula described in clause (7) above is applied, except that 2.5% is substituted for 3.1%, and the rate shall not exceed 8.25% per annum.
For Stafford loans made on or after July 1, 1998 but before July 1, 2006, the applicable interest rate shall be adjusted annually, and for any twelve month period commencing on a July 1 shall be equal to the bond equivalent rate of 91-day U.S. Treasury bills auctioned at the final auction prior to the proceeding June 1, plus 1.7% per annum prior to the time the loan enters repayment and during any deferment periods, and 2.3% per annum during repayment, but not to exceed 8.25% per annum.
For loans the first disbursement of which is made on or after July 1, 2006, the applicable interest rate will be 6.8%. There can be no assurance that the interest rate provisions for these loans will not be further amended.
Unsubsidized Stafford Loans
General. Unsubsidized Stafford loans were created by Congress in 1992 for students who do not qualify for subsidized Stafford loans due to parental and/or student income and assets in excess of permitted amounts. These students are entitled to borrow the difference between the Stafford loan maximum and their subsidized Stafford eligibility. The general requirements for unsubsidized Stafford loans are essentially the same as those for subsidized Stafford loans. The interest rate, the annual loan limits and the special allowance payment provisions of the unsubsidized Stafford loans are the same as the subsidized Stafford loans. However, the terms of the unsubsidized Stafford loans differ materially from subsidized Stafford loans in that the federal government will not make interest subsidy payments and the loan limitations are determined without respect to the expected family contribution. The borrower will be required to either pay interest from the time the loan is disbursed or capitalize the interest until repayment begins. Unsubsidized Stafford loans were not available before October 1, 1992. A student meeting the general eligibility requirements for a loan under the FFEL Program is eligible for an unsubsidized Stafford loan without regard to need.
Interest rates for unsubsidized Stafford loans. Unsubsidized Stafford loans are subject to the same interest rate provisions as subsidized Stafford loans.
PLUS Loans
General. PLUS loans are made only to borrowers who are parents and, under certain circumstances, spouses of remarried parents, of dependent undergraduate students. For PLUS loans made on or after July 1, 1993, the parent borrower must not have an adverse credit history as determined pursuant to criteria established by the Department. The basic provisions applicable to PLUS loans are similar to those of subsidized Stafford loans with respect to the involvement of guaranty agencies and the Secretary of Education in providing federal reinsurance on the loans. However, PLUS loans differ significantly from subsidized Stafford loans, particularly because federal interest subsidy payments are not available under the PLUS loan program and special allowance payments are more restricted.
Interest rates for PLUS loans. The applicable interest rate depends upon the date of issuance of the loan and the period of enrollment for which the loan is to apply. The applicable interest rate on a PLUS loan:
o made on or after January 1, 1981, but before October 1, 1981, is 9% per annum;
o made on or after October 1, 1981, but before November 1, 1982, is 14% per annum;
o made on or after November 1, 1982, but before July 1, 1987, is 12% per annum;
o made on or after July 1, 1987, but before October 1, 1992 shall be adjusted annually, and for any 12-month period beginning on July 1 shall be equal to the bond equivalent rate of 52-week U.S. Treasury bills auctioned at the final auction prior to the
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preceding June 1, plus 3.25% per annum (but not to exceed 12% per annum);
o made on or after October 1, 1992, but before July 1, 1994, shall be adjusted annually, and for any 12-month period beginning on July 1 shall be equal to the bond equivalent rate of 52-week U.S. Treasury bills auctioned at the final auction prior to the preceding June 1, plus 3.1% per annum (but not to exceed 10% per annum);
o made on or after July 1, 1994, but before July 1, 1998, is the same as that for a loan made on or after October 1, 1992, but before July 1, 1994, except that such rate shall not exceed 9% per annum;
o made on or after July 1, 1998, but before July 1, 2006, shall be adjusted annually, and for any 12-month period beginning on July 1 shall be equal to the bond equivalent rate of 91-day U.S. Treasury bills auctioned at the final auction prior to the preceding June 1, plus 3.1% per annum (but not to exceed 9% per annum); or
o the first disbursement of which is made on or after July 1, 2006 will be 7.9%.
For any 12-month period beginning on July 1, 2001 or any succeeding year, the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the last calendar week before such June 26, will be substituted for the 52-week Treasury bill as the index for interest rate calculations.
SLS loans
General. SLS loans were limited to graduate or professional students, independent undergraduate students, and dependent undergraduate students, if the students' parents were unable to obtain a PLUS loan and were also unable to provide the students' expected family contribution. Except for dependent undergraduate students, eligibility for SLS loans was determined without regard to need. SLS loans are similar to subsidized Stafford loans with respect to the involvement of guaranty agencies and the Secretary of Education in providing federal reinsurance on the loans. However, SLS loans differ significantly from subsidized Stafford loans, particularly because federal interest subsidy payments are not available under the SLS loan program and special allowance payments are more restricted.
Interest rates for SLS loans. The applicable interest rates on SLS loans made prior to October 1, 1992 are identical to the applicable interest rates on PLUS loans made at the same time. For SLS loans made on or after October 1, 1992, the applicable interest rate is the same as the applicable interest rate on PLUS loans, except that the ceiling is 11% per annum instead of 10% per annum.
Consolidation Loans
General. The Higher Education Act authorizes a program under which certain borrowers may consolidate their various student loans into a single loan insured and reinsured on a basis similar to subsidized Stafford loans. Consolidation loans may be obtained in an amount sufficient to pay outstanding principal, unpaid interest and late charges on federally insured or reinsured student loans incurred under the FFEL Program, excluding PLUS loans made to "parent borrowers," selected by the borrower, as well as loans made pursuant to the Perkins (formally National Direct Student Loan) and Health Professional Student Loan Programs. To be eligible for a consolidation loan, a borrower must:
o have outstanding indebtedness on student loans made under the FFEL Program and/or certain other federal student loan programs, and
o be in repayment status or in a grace period, or
o be a defaulted borrower who has made arrangements to repay any defaulted loan satisfactory to the holder of the defaulted loan.
If requested by the borrower, an eligible lender may consolidate SLS or PLUS loans of the same borrower held by the lender under a single repayment schedule. The repayment period for each included loan shall be based on the commencement of repayment of the most recent loan. The consolidated loan shall bear interest at a rate equal to the weighted average of the rates of the included loans. In addition, at the request of the borrower, a lender may refinance an existing fixed-rate SLS or PLUS loan, including a SLS or PLUS loan held by a different lender who has refused to refinance the loan, at a variable interest rate. In this case, proceeds of the new loan are used to discharge the original loan.
A married couple who agree to be jointly liable on a consolidation loan, for which the application is received on or after January 1, 1993, may be treated as an individual for purposes of obtaining a consolidation loan. For consolidation loans disbursed prior to July 1, 1994 the borrower was required to have outstanding student loan indebtedness of at least $7,500. Prior to the adoption of the Higher
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Education Technical Amendments Act of 1993, PLUS loans could not be included in the consolidation loan. For consolidation loans for which the applications were received prior to January 1, 1993, the minimum student loan indebtedness was $5,000 and the borrower could not be delinquent more than 90 days in the payment of such indebtedness. For applications received on or after January 1, 1993, borrowers may add additional loans to a consolidation loan during the 180-day period following the origination of the consolidation loan.
Interest rates for consolidation loans. A consolidation loan made prior to July 1, 1994 bears interest at a rate equal to the weighted average of the interest rates on the loans retired, rounded to the nearest whole percent, but not less than 9% per annum. Except as described in the next sentence, a consolidation loan made on or after July 1, 1994 bears interest at a rate equal to the weighted average of the interest rates on the loans retired, rounded upward to the nearest whole percent, but with no minimum rate. For a consolidation loan for which the application is received by an eligible lender on or after November 13, 1997 and before October 1, 1998, the interest rate shall be adjusted annually, and for any twelve-month period commencing on a July 1 shall be equal to the bond equivalent rate of 91-day U.S. Treasury bills auctioned at the final auction prior to the preceding June 1, plus 3.1% per annum, but not to exceed 8.25% per annum. Notwithstanding these general interest rates, the portion, if any, of a consolidation loan that repaid a loan made under title VII, Sections 700-721 of the Public Health Services Act, as amended, has a different variable interest rate. Such portion is adjusted on July 1 of each year, but is the sum of the average of the T-Bill Rates auctioned for the quarter ending on the preceding June 30, plus 3.0%, without any cap on the interest rate. Consolidation loans made on or after October 1, 1998 and before July 1, 2006 will bear interest at a per annum rate equal to the lesser of 8.25% or the weighted average of the interest rates on the loans being consolidated, rounded to the nearest higher 1/8 of 1%. Consolidation loans for which the application is received on or after July 1, 2006, will bear interest also at a rate per annum equal to the lesser of 8.25% or the weighted average of the interest rates on the loans being consolidated, rounded to the nearest higher 1/8 of 1%. For a discussion of required payments that reduce the return on consolidation loans, see "Fees -- Rebate Fees on Consolidation Loans" in this Appendix.
Maximum Loan Amounts
Each type of loan is subject to limits on the maximum principal amount, both with respect to a given year and in the aggregate. Consolidation loans are limited only by the amount of eligible loans to be consolidated. All of the loans are limited to the difference between the cost of attendance and the other aid available to the student. Stafford loans are also subject to limits based upon needs analysis. Additional limits are described below.
Loan limits for Stafford and unsubsidized Stafford loans. Stafford and unsubsidized Stafford loans are generally treated as one loan type for loan limit purposes. A student who has not successfully completed the first year of a program of undergraduate education may borrow up to $2,625 in an academic year. A student who has successfully completed the first year, but who has not successfully completed the second year may borrow up to $3,500 per academic year. An undergraduate student who has successfully completed the first and second year, but who has not successfully completed the remainder of a program of undergraduate education, may borrow up to $5,500 per academic year. For students enrolled in programs of less than an academic year in length, the limits are generally reduced in proportion to the amount by which the programs are less than one year in length. A graduate or professional student may borrow up to $8,500 in an academic year. The maximum aggregate amount of Stafford and unsubsidized Stafford loans, including that portion of a consolidation loan used to repay such loans, which an undergraduate student may have outstanding is $23,000. The maximum aggregate amount for a graduate and professional student, including loans for undergraduate education, is $65,500. The Secretary of Education is authorized to increase the limits applicable to graduate and professional students who are pursuing programs which the Secretary of Education determines to be exceptionally expensive.
Prior to the enactment of the Higher Education Amendments of 1992, an undergraduate student who had not successfully completed the first and second year of a program of undergraduate education could borrow Stafford loans in amounts up to $2,625 in an academic year. An undergraduate student who had successfully completed the first and second year, but who had not successfully completed the remainder of a program of undergraduate education could borrow up to $4,000 per academic year. The maximum for graduate and professional students was $7,500 per academic year. The maximum aggregate amount of Stafford loans which a borrower could have outstanding, including that portion of a consolidation loan used to repay such loans, was $17,250. The maximum aggregate amount for a graduate or professional student, including loans for undergraduate education, was $54,750. Prior to the 1986 changes, the annual limits were generally lower.
Loan limits for PLUS loans. For PLUS loans made on or after July 1, 1993, the amounts of PLUS loans are limited only by the student's unmet need. Prior to that time PLUS loans were subject to limits similar to those of SLS loans applied with respect to each student on behalf of whom the parent borrowed.
Loan limits for SLS loans. A student who had not successfully completed the first and second year of a program of undergraduate education could borrow a SLS loan in an amount of up to $4,000. A student who had successfully completed the first and second year, but who had not successfully completed the remainder of a program of undergraduate education could borrow up to $5,000 per year. Graduate and professional students could borrow up to $10,000 per year. SLS loans were subject to an aggregate maximum of
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$23,000 ($73,000 for graduate and professional students). Prior to the 1992 changes, SLS loans were available in amounts of $4,000 per academic year, up to a $20,000 aggregate maximum. Prior to the 1986 changes, a graduate or professional student could borrow $3,000 of SLS loans per academic year, up to a $15,000 maximum, and an independent undergraduate student could borrow $2,500 of SLS loans per academic year minus the amount of all other FFELP loans to such student for such academic year, up to the maximum amount of all FFELP loans to that student of $12,500. In 1989, the amount of SLS loans for students enrolled in programs of less than an academic year in length were limited in a manner similar to the limits described above under "Subsidized Stafford Loans."
Disbursement Requirements
The Higher Education Act now requires that virtually all Stafford loans and PLUS loans be disbursed by eligible lenders in at least two separate installments. The proceeds of a loan made to any undergraduate first-year student borrowing for the first time under the program must be delivered to the student no earlier than thirty days after the enrollment period begins.
Repayment
Repayment periods. Loans made under FFEL Program, other than consolidation loans, must provide for repayment of principal in periodic installments over a period of not less than five nor more than ten years. After the 1998 Amendments, lenders are required to offer extended repayment schedules to new borrowers who accumulate outstanding loans of more than $30,000, in which case the repayment period may extend up to 25 years subject to certain minimum repayment amounts. A consolidation loan must be repaid during a period agreed to by the borrower and lender, subject to maximum repayment periods which vary depending upon the principal amount of the borrower's outstanding student loans, but may not be longer than 30 years. For consolidation loans for which the application was received prior to January 1, 1993, the repayment period could not exceed 25 years. Repayment of principal on a Stafford loan does not commence while a student remains a qualified student, but generally begins upon expiration of the applicable grace period. Grace periods may be waived by borrowers. For Stafford loans for which the applicable rate of interest is 7% per annum, the repayment period commences not more than twelve months after the borrower ceases to pursue at least a half-time course of study. For other Stafford loans and unsubsidized Stafford loans, the repayment period commences not more than six months after the borrower ceases to pursue at least a half-time course of study. The six month or 12 month periods are the "grace periods."
In the case of SLS, PLUS and consolidation loans, the repayment period commences on the date of final disbursement of the loan, except that the borrower of a SLS loan who also has a Stafford loan may defer repayment of the SLS loan to coincide with the commencement of repayment of the Stafford or unsubsidized Stafford loan. During periods in which repayment of principal is required, payments of principal and interest must in general be made at a rate of not less than the greater of $600 per year or the interest that accrues during the year, except that a borrower and lender may agree to a lesser rate at any time before or during the repayment period. A borrower may agree, with concurrence of the lender, to repay the loan in less than five years with the right subsequently to extend his minimum repayment period to five years. Borrowers may accelerate, without penalty, the repayment of all or any part of the loan.
Income-sensitive repayment schedules. Since 1992, lenders of consolidation loans have been required to establish graduated or income-sensitive repayment schedules and lenders of Stafford and SLS loans have been required to offer borrowers the option of repaying in accordance with graduated or income-sensitive repayment schedules. A trust may implement graduated repayment schedules and income-sensitive repayment schedules. Use of income-sensitive repayment schedules may extend the ten-year maximum term for up to five years. In addition, if the repayment schedule on a loan that has been converted to a variable interest rate does not provide for adjustments to the amount of the monthly installment payments, the ten-year maximum term may be extended for up to three years.
Deferment periods. No principal repayments need be made during certain periods of deferment prescribed by the Higher Education Act. For loans to a borrower who first obtained a loan which was disbursed before July 1, 1993, deferments are available:
o during a period not exceeding three years while the borrower is a member of the Armed Forces, an officer in the Commissioned Corps of the Public Health Service or, with respect to a borrower who first obtained a student loan disbursed on or after July 1, 1987, or a student loan to cover the cost of instruction for a period of enrollment beginning on or after July 1, 1987, an active duty member of the National Oceanic and Atmospheric Administration Corps;
o during a period not in excess of three years while the borrower is a volunteer under the Peace Corps Act;
o during a period not in excess of three years while the borrower is a full-time volunteer under the Domestic Volunteer Act of 1973;
o during a period not exceeding three years while the borrower is in service, comparable to the service described above as a full-time volunteer for an organization which is exempt from taxation under
Section 501(c)(3) of the Code;
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o during a period not exceeding two years while the borrower is serving an internship necessary to receive professional recognition required to begin professional practice or service, or a qualified internship or residency program;
o during a period not exceeding three years while the borrower is temporarily totally disabled, as established by sworn affidavit of a qualified physician, or while the borrower is unable to secure employment by reason of the care required by a dependent who is so disabled;
o during a period not to exceed twenty-four months while the borrower is seeking and unable to find full-time employment;
o during any period that the borrower is pursuing a full-time course of study at an eligible institution (or, with respect to a borrower who first obtained a student loan disbursed on or after July 1, 1987, or a student loan to cover the cost of instruction for a period of enrollment beginning on or after July 1, 1987, is pursuing at least a half-time course of study for which the borrower has obtained a loan under the FFEL Program), or is pursuing a course of study pursuant to a graduate fellowship program or a rehabilitation training program for disabled individuals approved by the Secretary of Education;
o during a period, not in excess of 6 months, while the borrower is on parental leave; and
o only with respect to a borrower who first obtained a student loan disbursed on or after July 1, 1987, or a student loan to cover the cost of instruction for a period of enrollment beginning on or after July 1, 1987, during a period not in excess of three years while the borrower is a full-time teacher in a public or nonprofit private elementary or secondary school in a "teacher shortage area" (as prescribed by the Secretary of Education), and during a period not in excess of 12 months for mothers, with preschool age children, who are entering or re-entering the work force and who are compensated at a rate not exceeding $1 per hour in excess of the federal minimum wage.
For loans to a borrower who first obtains a loan on or after July 1, 1993, deferments are available:
o during any period that the borrower is pursuing at least a half-time courseof study at an eligible institution or a course of study pursuant to a graduate fellowship program or rehabilitation training program approved by the Secretary of Education;
o during a period not exceeding three years while the borrower is seeking and unable to find full-time employment; and
o during a period not in excess of three years for any reason which the lender determines, in accordance with regulations under the Higher Education Act, has caused or will cause the borrower economic hardship. Economic hardship includes working full time and earning an amount not in excess of the greater of the minimum wage or the poverty line for a family of two. Additional categories of economic hardship are based on the relationship between a borrower's educational debt burden and his or her income.
Prior to the 1992 changes, only certain of the deferment periods described above were available to PLUS loan borrowers, and only certain deferment periods were available to consolidation loan borrowers. Prior to the 1986 changes, PLUS loan borrowers were not entitled to certain deferment periods. Deferment periods extend the ten-year maximum term.
Forbearance period. The Higher Education Act also provides for periods of forbearance during which the borrower, in case of temporary financial hardship, may defer any payments. A borrower is entitled to forbearance for a period not to exceed three years while the borrower's debt burden under Title IV of the Higher Education Act (which includes the FFEL Program) equals or exceeds 20% of the borrower's gross income, and also is entitled to forbearance while he or she is serving in a qualifying medical or dental internship program or in a "national service position" under the National and Community Service Trust Act of 1993. In addition, mandatory administrative forbearances are provided in exceptional circumstances such as a local or national emergency or military mobilization, or when the geographical area in which the borrower or endorser resides has been designated a disaster area by the President of the United States or Mexico, the Prime Minister of Canada, or by the governor of a state. In other circumstances, forbearance is at the lender's option. Forbearance also extends the ten-year maximum term.
Interest payments during grace, deferment and forbearance periods. The Secretary of Education makes interest payments on behalf of the borrower of certain eligible loans while the borrower is in school and during grace and deferment periods. Interest that accrues during forbearance periods and, if the loan is not eligible for interest subsidy payments, while the borrower is in school and during the grace and deferment periods, may be paid monthly or quarterly or capitalized not more frequently than quarterly.
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Fees
Guarantee fee. A guaranty agency is authorized to charge a premium, or guarantee fee, of up to 1% of the principal amount of the loan, which must be deducted proportionately from each installment payment of the proceeds of the loan to the borrower. Guarantee fees may not currently be charged to borrowers of consolidation loans. However, borrowers may be charged an insurance fee to cover the costs of increased or extended liability with respect to consolidation loans. For loans made prior to July 1, 1994, the maximum guarantee fee was 3% of the principal amount of the loan, but no such guarantee fee was authorized to be charged with respect to unsubsidized Stafford loans.
Origination fee. An eligible lender is authorized to charge the borrower of a Stafford loan, an unsubsidized Stafford loan or PLUS loan an origination fee in an amount not to exceed 5% of the principal amount of the loan, and is required to charge the borrower of an unsubsidized Stafford loan or a PLUS loan an origination fee in the amount of 3% of the principal amount of the loan. These fees must be deducted proportionately from each installment payment of the loan proceeds prior to payment to the borrower. These fees are not retained by the lender, but must be passed on to the Secretary of Education.
Lender origination fee. The lender of any loan under the FFEL Program made on or after October 1, 1993 is required to pay to the Secretary of Education a fee equal to 0.5% of the principal amount of such loan.
Rebate fee on Consolidation Loans. The holder of any consolidation loan made on or after October 1, 1993 is required to pay to the Secretary of Education a monthly fee equal to .0875% (1.05% per annum) of the principal amount of, and accrued interest on the consolidation loan. For loans made pursuant to applications received on or after October 1, 1998, and on or before January 31, 1999 the fee on consolidation loans of 1.05% is reduced to 0.62%.
Interest Subsidy Payments
Interest subsidy payments are interest payments paid with respect to an eligible loan before the time that the loan enters repayment and during grace and deferment periods. The Secretary of Education and the guaranty agencies enter into interest subsidy agreements whereby the Secretary of Education agrees to pay interest subsidy payments to the holders of eligible guaranteed loans for the benefit of students meeting certain requirements, subject to the holders' compliance with all requirements of the Higher Education Act. Only Stafford loans and consolidation loans for which the application was received on or after January 1, 1993, are eligible for interest subsidy payments. Consolidation loans made after August 10, 1993 are eligible for interest subsidy payments only if all loans consolidated thereby are Stafford loans, except that consolidation loans for which the application is received by an eligible lender on or after November 13, 1997 and before October 1, 1998, are eligible for interest subsidy payments on that portion of the Consolidation loan that repays Stafford loans or similar subsidized loans made under the direct loan program. In addition, to be eligible for interest subsidy payments, guaranteed loans must be made by an eligible lender under the applicable guaranty agency's guarantee program, and must meet requirements prescribed by the rules and regulations promulgated under the Higher Education Act.
The Secretary of Education makes interest subsidy payments quarterly on behalf of the borrower to the holder of a guaranteed loan in a total amount equal to the interest which accrues on the unpaid principal amount prior to the commencement of the repayment period of the loan or during any deferment period. A borrower may elect to forego interest subsidy payments, in which case the borrower is required to make interest payments.
Special Allowance Payments
The Higher Education Act provides for special allowance payments to be made by the Secretary of Education to eligible lenders. The rates for special allowance payments are based on formulas that differ according to the type of loan, the date the loan was originally made or insured and the type of funds used to finance the loan (taxable or tax-exempt).
Subsidized and unsubsidized Stafford loans. The effective formulas for special allowance payment rates for Stafford and unsubsidized Stafford loans are summarized in the following chart. The T-Bill Rate mentioned in the chart refers to the average of the bond equivalent yield of the 91-day Treasury bills auctioned during the preceding quarter.

            Date of Loans                                  Annualized SAP Rate
-----------------------------------    ----------------------------------------------------
On or after October 1, 1981........    T-Bill Rate less Applicable Interest Rate + 3.5%
On or after November 16, 1986......    T-Bill Rate less Applicable Interest Rate + 3.25%
On or after October 1, 1992........    T-Bill Rate less Applicable Interest Rate + 3.1%
On or after July 1, 1995...........    T-Bill Rate less Applicable Interest Rate + 3.1%(1)
On or after July 1, 1998...........    T-Bill Rate less Applicable Interest Rate + 2.8%(2)
On or after January 1, 2000 and
  before July 1, 2003..............    3 Month Commercial Paper Rate less
                                       Applicable(3) Interest Rate + 2.34%	

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(1) Substitute 2.5% in this formula while loans are in-school, grace or deferment status.
(2) Substitute 2.2% in this formula while such loans are in-school, grace or deferment status.
(3) Substitute 1.74% in this formula while such loans are in-school, grace or deferment status.
Federal PLUS, SLS and consolidation loans. The formula for special allowance payments on PLUS, SLS and Consolidation loans are as follows:

           Date of Loans                          Annualized SAP Rate
--------------------------------  ---------------------------------------------
 On or after October 1, 1992....  T-Bill Rate less Applicable Interest Rate +
                                  3.1%
 On or after January 1, 2000....  3 Month Commercial Paper Rate less Applicable
                                  Interest Rate + 2.64%	

For PLUS and SLS loans which bear interest at rates adjusted annually, special allowance payments are made only in years during which the interest rate ceiling on such loans operates to reduce the rate that would otherwise apply based upon the applicable formula. See "Interest rates for PLUS loans" and "Interest rates for SLS loans" in this Appendix. Special allowance payments are paid with respect to PLUS loans made on or after October 1, 1992 only if the rate that would otherwise apply exceeds 10% per annum. For PLUS loans made after July 1, 1998 and before July 1, 2006, special allowance is paid only if the sum of the 91-day Treasury bill rate determined at an auction held on June 1 of each year plus 3.1% exceeds 9.0%. For PLUS loans first disbursed on or after July 1, 2006, special allowance is paid for such loans in any 12-month period beginning on July 1 and ending on June 30 only if the sum of the average of the bond equivalent rates of the quotes of the 3-month commercial paper rate for the last calendar week ending on or before such July 1 plus 2.64% exceeds 9.0%. The portion, if any, of a consolidation loan that repaid a loan made under Title VII, Sections 700-721 of the Public Health Services Act, as amended, is ineligible for special allowance payments.
Special allowance payments for loans financed by tax-exempt bonds. The effective formulas for special allowance payment rates for Stafford Loans and unsubsidized Stafford Loans differ depending on whether loans to borrowers were acquired or originated with the proceeds of tax-exempt obligations. The formula for special allowance payments for loans financed with the proceeds of tax-exempt obligations originally prior to October 1, 1993 is:
T Bill Rate less Applicable Interest Rate + 3.5%

2
provided that the special allowance applicable to the loans may not be less than 9 1/2% less the Applicable Interest Rate. Loans acquired with the proceeds of tax-exempt obligations originally issued after October 1, 1993 receive special allowance payments made on other loans.
Adjustments to special allowance payments. Special allowance payments and interest subsidy payments are reduced by the amount which the lender is authorized or required to charge as an origination fee. In addition, the amount of the lender origination fee is collected by offset to special allowance payments and interest subsidy payments. The Higher Education Act provides that if special allowance payments or interest subsidy payments have not been made within 30 days after the Secretary of Education receives an accurate, timely and complete request therefore, the special allowance payable to such holder shall be increased by an amount equal to the daily interest accruing on the special allowance and interest subsidy payments due the holder.
Description of the Guaranty Agencies
The following discussion relates to guaranty agencies under the FFELP.
A guaranty agency guarantees loans made to students or parents of students by lending institutions such as banks, credit unions, savings and loan associations, certain schools, pension funds and insurance companies. A guaranty agency generally purchases defaulted student loans which it has guaranteed with its reserve fund. A lender may submit a default claim to the guaranty agency after the student loan has been delinquent for at least 270 days. The default claim package must include all information and documentation required under the FFELP regulations and the guaranty agency's policies and procedures.
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In general, a guaranty agency's reserve fund has been funded principally by administrative cost allowances paid by the Secretary of Education, guarantee fees paid by lenders, investment income on moneys in the reserve fund, and a portion of the moneys collected from borrowers on guaranteed loans that have been reimbursed by the Secretary of Education to cover the guaranty agency's administrative expenses.
Various changes to the Higher Education Act have adversely affected the receipt of revenues by the guaranty agencies and their ability to maintain their reserve funds at previous levels, and may adversely affect their ability to meet their guarantee obligations. These changes include:
o the reduction in reinsurance payments from the Secretary of Education because of reduced reimbursement percentages;
o the reduction in maximum permitted guarantee fees from 3% to 1% for loans made on or after July 1, 1994;
o the replacement of the administrative cost allowance with a student loan processing and issuance fee equal to 65 basis points (40 basis points for loans made on or after October 1, 1993) paid at the time a loan is guaranteed, and an account maintenance fee of 12 basis points (10 basis points for fiscal years 2001-2003) paid annually on outstanding guaranteed student loans;
o the reduction in supplemental preclaims assistance payments from the Secretary of Education; and
o the reduction in retention by a guaranty agency of collections on defaulted loans from 27% to 24% (23% beginning on October 1, 2003).
Additionally, the adequacy of a guaranty agency's reserve fund to meet its guarantee obligations with respect to existing student loans depends, in significant part, on its ability to collect revenues generated by new loan guarantees. The Federal Direct Student Loan Program discussed below may adversely affect the volume of new loan guarantees. Future legislation may make additional changes to the Higher Education Act that would significantly affect the revenues received by guaranty agencies and the structure of the guaranty agency program.
The Higher Education Act gives the Secretary of Education various oversight powers over guaranty agencies. These include requiring a guaranty agency to maintain its reserve fund at a certain required level and taking various actions relating to a guaranty agency if its administrative and financial condition jeopardizes its ability to meet its obligations. These actions include, among others, providing advances to the guaranty agency, terminating the guaranty agency's federal reimbursement contracts, assuming responsibility for all functions of the guaranty agency, and transferring the guaranty agency's guarantees to another guaranty agency or assuming such guarantees. The Higher Education Act provides that a guaranty agency's reserve fund shall be considered to be the property of the United States to be used in the operation of the FFEL Program or the FDL Program, and, under certain circumstances, the Secretary of Education may demand payment of amounts in the reserve fund.
The 1998 Amendments mandate the recall of guaranty agency reserve funds by the Secretary of Education amounting to $85 million in fiscal year 2002, $82.5 million in fiscal year 2006, and $82.5 million in fiscal year 2007. However, certain minimum reserve levels are protected from recall, and under the 1998 Amendments, guaranty agency reserve funds were restructured to provide guaranty agencies with additional flexibility in choosing how to spend certain funds they receive. The new recall of reserves for guaranty agencies increases the risk that resources available to guaranty agencies to meet their guarantee obligation will be significantly reduced. Relevant federal laws, including the Higher Education Act, may be further changed in a manner that may adversely affect the ability of a guaranty agency to meet its guarantee obligations.
Student loans originated prior to October 1, 1993 are fully guaranteed as to principal and accrued interest. Student loans originated after October 1, 1993 are guaranteed as to 98% of principal and accrued interest.
Under the Higher Education Act, if the Department has determined that a guaranty agency is unable to meet its insurance obligations, the holders of loans guaranteed by such guaranty agency must submit claims directly to the Department, and the Department is required to pay the full guarantee payment due with respect thereto in accordance with guarantee claims processing standards no more stringent than those applied by the guaranty agency.
There are no assurances as to the Secretary of Education's actions if a guaranty agency encounters administrative or financial difficulties or that the Secretary of Education will not demand that a guaranty agency transfer additional portions or all of its reserve fund to the Secretary of Education.
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Federal Agreements
General. A guaranty agency's right to receive federal reimbursements for various guarantee claims paid by such guaranty agency is governed by the Higher Education Act and various contracts entered into between guaranty agencies and the Secretary of Education. Each guaranty agency and the Secretary of Education have entered into federal reimbursement contracts pursuant to the Higher Education Act, which provide for the guaranty agency to receive reimbursement of a percentage of insurance payments that the guaranty agency makes to eligible lenders with respect to loans guaranteed by the guaranty agency prior to the termination of the federal reimbursement contracts or the expiration of the authority of the Higher Education Act. The federal reimbursement contracts provide for termination under certain circumstances and also provide for certain actions short of termination by the Secretary of Education to protect the federal interest.
In addition to guarantee benefits, qualified student loans acquired under the FFEL Program benefit from certain federal subsidies. Each guaranty agency and the Secretary of Education have entered into an Interest Subsidy Agreement under the Higher Education Act which entitles the holders of eligible loans guaranteed by the guaranty agency to receive interest subsidy payments from the Secretary of Education on behalf of certain students while the student is in school, during a six to twelve month grace period after the student leaves school, and during certain deferment periods, subject to the holders' compliance with all requirements of the Higher Education Act.
United States Courts of Appeals have held that the federal government, through subsequent legislation, has the right unilaterally to amend the contracts between the Secretary of Education and the guaranty agencies described herein. Amendments to the Higher Education Act in 1986, 1987, 1992, 1993, and 1998, respectively:
o abrogated certain rights of guaranty agencies under contracts with the Secretary of Education relating to the repayment of certain advances from the Secretary of Education,
o authorized the Secretary of Education to withhold reimbursement payments otherwise due to certain guaranty agencies until specified amounts of such guaranty agencies' reserves had been eliminated,
o added new reserve level requirements for guaranty agencies and authorized the Secretary of Education to terminate the Federal Reimbursement Contracts under circumstances that did not previously warrant such termination,
o expanded the Secretary of Education's authority to terminate such contracts and to seize guaranty agencies' reserves, and
o mandated the additional recall of guaranty agency reserve funds.
Federal Insurance and Reimbursement of Guaranty Agencies
Effect of annual claims rate. With respect to loans made prior to October 1, 1993, the Secretary of Education currently agrees to reimburse the guaranty agency for up to 100% of the amounts paid on claims made by lenders, as discussed in the formula described below, so long as the eligible lender has properly serviced such loan. The amount of reimbursement is lower for loans originated after October 1, 1993, as described below. Depending on the claims rate experience of a guaranty agency, such reimbursement may be reduced as discussed in the formula described below. The Secretary of Education also agrees to repay 100% of the unpaid principal plus applicable accrued interest expended by a guaranty agency in discharging its guarantee obligation as a result of the bankruptcy, death, or total and permanent disability of a borrower, or in the case of a PLUS loan, the death of the student on behalf of whom the loan was borrowed, or in certain circumstances, as a result of school closures, which reimbursements are not to be included in the calculations of the guaranty agency's claims rate experience for the purpose of federal reimbursement under the Federal Reimbursement Contracts.
The formula used for loans initially disbursed prior to October 1, 1993 is summarized below:

  Claims Rate                 Federal Payment
----------------    --------------------------------------
0% up to 5%.....    100%
5% up to 9%.....    100% of claims up to 5%; 90% of
                    claims 5% and over
9% and over.....    100% of claims up to 5%; 90% of
                    claims 5% and over, up to 9%; 80% of
                    claims 9% and over	

The claims experience is not accumulated from year to year, but is determined solely on the basis of claims in any one federal fiscal year compared with the original principal amount of loans in repayment at the beginning of that year.
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The 1993 Amendments reduce the reimbursement amounts described above, effective for loans initially disbursed on or after October 1, 1993 as follows:
100% reimbursement is reduced to 98%, 90% reimbursement is reduced to 88%, and 80% reimbursement is reduced to 78%, subject to certain limited exceptions. The 1998 Amendments further reduce the federal reimbursement amounts from 98% to 95%, 88% to 85%, and 78% to 75% respectively, for student loans first disbursed on or after October 1, 1998.
The reduced reinsurance for federal guaranty agencies increases the risk that resources available to guaranty agencies to meet their guarantee obligation will be significantly reduced.
Reimbursement. The original principal amount of loans guaranteed by a guaranty agency which are in repayment for purposes of computing reimbursement payments to a guaranty agency means the original principal amount of all loans guaranteed by a guaranty agency less:
o the original principal amount of such loans that have been fully repaid, and
o the original amount of such loans for which the first principal installment payment has not become due.
Guaranty agencies with default rates below 5% are required to pay the Secretary of Education annual fees equivalent to 0.51% of new loans guaranteed, while all other such agencies must pay a 0.5% fee. The Secretary of Education may withhold reimbursement payments if a guaranty agency makes a material misrepresentation or fails to comply with the terms of its agreements with the Secretary of Education or applicable federal law.
Under the guarantee agreements, if a payment on a FFELP loan guaranteed by a guaranty agency is received after reimbursement by the Secretary of Education, the guaranty agency is entitled to receive an equitable share of the payment.
Any originator of any student loan guaranteed by a guaranty agency is required to discount from the proceeds of the loan at the time of disbursement, and pay to the guaranty agency, an insurance premium which may not exceed that permitted under the Higher Education Act.
Under present practice, after the Secretary of Education reimburses a guaranty agency for a default claim paid on a guaranteed loan, the guaranty agency continues to seek repayment from the borrower. The guaranty agency returns to the Secretary of Education payments that it receives from a borrower after deducting and retaining: a percentage amount equal to the complement of the reimbursement percentage in effect at the time the loan was reimbursed, and an amount equal to 24% of such payments for certain administrative costs. The Secretary of Education may, however, require the assignment to the Secretary of defaulted guaranteed loans, in which event no further collections activity need be undertaken by the guaranty agency, and no amount of any recoveries shall be paid to the guaranty agency.
A guaranty agency may enter into an addendum to its Interest Subsidy Agreement that allows the guaranty agency to refer to the Secretary of Education certain defaulted guaranteed loans. Such loans are then reported to the IRS to "offset" any tax refunds which may be due any defaulted borrower. To the extent that the guaranty agency has originally received less than 100% reimbursement from the Secretary of Education with respect to such a referred loan, the guaranty agency will not recover any amounts subsequently collected by the federal government which are attributable to that portion of the defaulted loan for which the guaranty agency has not been reimbursed.
Rehabilitation of defaulted loans. Under the Higher Education Act, the Secretary of Education is authorized to enter into an agreement with a guaranty agency pursuant to which the guaranty agency shall sell defaulted loans that are eligible for rehabilitation to an eligible lender. The guaranty agency shall repay the Secretary of Education an amount equal to 81.5% of the then current principal balance of such loan, multiplied by the reimbursement percentage in effect at the time the loan was reimbursed. The amount of such repayment shall be deducted from the amount of federal reimbursement payments for the fiscal year in which such repayment occurs, for purposes of determining the reimbursement rate for that fiscal year.
For a loan to be eligible for rehabilitation, the guaranty agency must have received consecutive payments for 12 months of amounts owed on such loan. Upon rehabilitation, a loan is eligible for all the benefits under the Higher Education Act for which it would have been eligible had no default occurred (except that a borrower's loan may only be rehabilitated once).
Eligibility for federal reimbursement. To be eligible for federal reimbursement payments, guaranteed loans must be made by an eligible lender under the applicable guaranty agency's guarantee program, which must meet requirements prescribed by the rules and regulations promulgated under the Higher Education Act, including the borrower eligibility, loan amount, disbursement, interest rate, repayment period and guarantee fee provisions described herein and the other requirements set forth in the Higher Education Act.
Prior to the 1998 Amendments, a FFELP loan was considered to be in default for purposes of the Higher Education Act when the
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borrower failed to make an installment payment when due, or to comply with the other terms of the loan, and if the failure persists for 180 days in the case of a loan repayable in monthly installments or for 240 days in the case of a loan repayable in less frequent installments. Under the 1998 Amendments, the delinquency period required for a student loan to be declared in default is increased from 180 days to 270 days for loans payable in monthly installments on which the first day of delinquency occurs on or after the date of enactment of the 1998 Amendments and from 240 days to 330 days for a loan payable less frequently than monthly on which the delinquency occurs after the date of enactment of the 1998 Amendments.
The guaranty agency must pay the lender for the defaulted loan prior to submitting a claim to the Secretary of Education for reimbursement. The guaranty agency must submit a reimbursement claim to the Secretary of Education within 45 days after it has paid the lender's default claim. As a prerequisite to entitlement to payment on the guarantee by the guaranty agency, and in turn payment of reimbursement by the Secretary of Education, the lender must have exercised reasonable care and diligence in making, servicing and collecting the guaranteed loan. Generally, these procedures require:
o that completed loan applications be processed;
o a determination of whether an applicant is an eligible borrower attending an eligible institution under the Higher Education Act be made;
o the borrower's responsibilities under the loan be explained to him or her;
o the promissory note evidencing the loan be executed by the borrower; and
o that the loan proceeds be disbursed by the lender in a specified manner.
After the loan is made, the lender must establish repayment terms with the borrower, properly administer deferments and forbearances and credit the borrower for payments made. If a borrower becomes delinquent in repaying a loan, a lender must perform certain collection procedures, primarily telephone calls, demand letters, skip tracing procedures and requesting assistance from the applicable guaranty agency, that vary depending upon the length of time a loan is delinquent.
Direct Loans
The 1993 Amendments authorized a program of "direct loans," to be originated by schools with funds provided by the Secretary of Education. Under the FDL Program, the Secretary of Education is directed to enter into agreements with schools, or origination agents in lieu of schools, to disburse loans with funds provided by the Secretary of Education. Participation in the program by schools is voluntary. The goals set forth in the 1993 Amendments call for the direct loan program to constitute 5% of the total volume of loans made under the FFEL Program and the FDL Program for academic year 1994-1995, 40% for academic year 1995-1996, 50% for academic years 1996-1997 and 1997-1998 and 60% for academic year 1998-1999. No provision is made for the size of the FDL Program thereafter. Based upon information released by the General Accounting Office, participation by schools in the FDL Program has not been sufficient to meet the goals for the 1995-1996 or 1996-1997 academic years. The 1998 Amendments removed references to the "phase-in" of the FDL Program, including restrictions on annual limits for FDL Program volume and the Secretary's authority to select additional institutions to achieve balanced school representation.
The loan terms are generally the same under the FDL Program as under the FFEL Program, though more flexible repayment provisions are available under the FDL Program. At the discretion of the Secretary of Education, students attending schools that participate in the FDL Program (and their parents) may still be eligible for participation in the FFEL Program, though no borrower could obtain loans under both programs for the same period of enrollment.
It is difficult to predict the impact of the FDL Program. There is no way to accurately predict the number of schools that will participate in future years, or, if the Secretary authorizes students attending participating schools to continue to be eligible for FFEL Program loans, how many students will seek loans under the FDL Program instead of the FFEL Program. In addition, it is impossible to predict whether future legislation will eliminate, limit or expand the FDL Program or the FFEL Program.
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Exhibit 2.17
AGREEMENT FOR PURCHASE OF LLC MEMBERSHIP INTEREST
This AGREEMENT FOR PURCHASE OF LLC MEMBERSHIP INTEREST (the
"Agreement") is made as of the 28 day of January, 2004, among David A. Hoeft ("Hoeft"), Todd J. Wolfe ("Wolfe"), (collectively, the "Sellers") and Tina D. Mercer ("Mercer"), Premiere Credit of North America, LLC, an Indiana Limited Liability Company having a place of business at 2002 N. Wellesley Blvd., Indianapolis, IN 46219 ("the Company"), and Nelnet, Inc., a Nevada corporation, having a place of business at 121 South 13th Street, Suite 201, Lincoln, Nebraska, 68508 ("Purchaser"), concerning Membership interests in the Company.
W I T N E S S E T H :
WHEREAS, Sellers and Mercer are the owners in the aggregate of one hundred percent (100%) of the membership interests (the "Interests") of the Company; and
WHEREAS, the Company is in the business of providing collection of accounts and related services to student loan lenders and others (the "Company Business"); and
WHEREAS, Sellers wish to sell to Purchaser and Purchaser wishes to purchase from Sellers fifty percent (50%) of the Interests; and
WHEREAS, Purchaser wishes to invest in and make a capital contribution to Company for the purchase of certain real estate and other potential investments; and
WHEREAS, Purchaser desires that Hoeft and Wolfe remain as employees of the Company after the Closing as further set forth in those certain Employment Agreements between each of Hoeft and Wolfe and Company, which Agreements shall be executed contemporaneously herewith and are attached as Schedules 5.1(b)(i) and 5.1(b)(ii).
1
Exhibit 2.17
NOW, THEREFORE, in consideration of the representations, warranties, covenants and other agreements and undertakings of the parties hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE ONE
SALE AND PURCHASE OF INTERESTS
1.1 Sale and Purchase of Interests. On the Closing Date, as hereinafter defined, subject to the terms and conditions of this Agreement the Sellers agree to and shall sell transfer and deliver the Interests to the Purchaser, and the Purchaser shall purchase, acquire and accept the Interests from Sellers. Sellers are selling the following Interests respectively:
(a) Hoeft: 26.75%
(b) Wolfe: 23.25%
The percentage of Interests held by each of Sellers and Mercer prior to Closing (as defined in section 1.2) and the percentage of Interests held by all Members subsequent to Closing is indicated on Schedule 1.1 hereto. Upon Closing, the Operating Agreement of Company (as further defined in section 2.5 hereof) shall be deemed amended to reflect Purchaser as a Member of Company, holding fifty percent (50%) of the Interests, and all references to "Member" in said Operating Agreement shall be deemed to include Purchaser. Schedule 1.1 hereto shall replace Exhibit A to the Operating Agreement. The parties and Mercer further agree to enter into a revised Operating Agreement for the Company simultaneous with the Closing, which Agreement shall include but not be limited to the amendments agreed to herein.
1.2 Closing. Upon satisfaction of the conditions to Purchaser's obligations as set forth
2
Exhibit 2.17
in this Agreement, the sale and purchase of the Interests (the "Closing") under this Agreement shall commence on the date hereof, simultaneously with the execution of this Agreement, at the offices of Nelnet, Inc., 8425 Woodfield Crossing Blvd., Indianapolis, IN 46240. The date and time of the Closing are herein referred to as the Closing Date.
1.3 Purchase Price. The aggregate purchase price (the "Purchase Price") payable to Sellers at Closing in consideration of the sale of the Interests hereunder shall be two million three hundred sixteen thousand dollars ($2,316,000), paid in cash or other good funds, it being agreed that said amount also represents adequate consideration for the agreements of Wolfe and Hoeft not to compete with Company as set forth in the Employment Agreements. The Purchase Price shall be paid to Sellers in the following amounts:
(a) Hoeft: $1,239,060
(b) Wolfe: $1,076,940
1.4 Purchaser's Capital Contribution. Purchaser shall make a capital contribution to the Company of two million, nine hundred thirty four thousand dollars ($2,934,000), of which amount:
(a) one million six hundred thousand dollars ($1,600,000) shall be paid by Company to the holder of the mortgage on the real property owned by Company and commonly known as 2002 Wellesley Blvd., Indianapolis, IN 46219, which amount shall be sufficient to pay the mortgage in full . The Business Loan Agreement aka the Mortgage on the real property has a 1% prepayment penalty and the parties recognize that such penalty will be incurred, and therefore, Hoeft and Wolfe and SEL, LLC,
3
Exhibit 2.17
jointly and severally agree to satisfy and pay such penalty and related monies and to hold Nelnet and the Mercers harmless therefrom.
(b) four hundred twenty five thousand dollars ($425,000) shall be held and used by the Company to service other existing debt or for such other business purposes as agreed by the Managing Board (as defined in Section 9.5 hereof) following the Closing; and
(c) nine hundred nine thousand dollars ($909,000) shall be distributed to Sellers as a membership distribution simultaneous with Closing, divided in amounts proportionate to their percentage of selling Interests.
1.5 Options. The Operating Agreement of Company shall include the following provisions:
(a) Call Option. From and after seventy-two (72) months following the Closing, Purchaser shall have a "call" option (the "Call") to acquire up to one hundred percent (100%) ownership of the Company at a price equal to ten (10) times the higher of (i) the most recent three-year (3-year) average after tax net income (the parties recognize that the Company does not have tax impact, but for purposes of the calculations in this Section 1.5 "after tax net income" will be calculated using the corporate tax rate of forty percent (40%)) of the Company or (ii) after tax net income of the most recent year prior to the purchase, either amount being multiplied by the percentage of ownership being acquired, and excluding any extraordinary and nonrecurring items, plus any future real estate purchased by Premiere Credit of North America, LLC, valued at the original purchase price Book Value[define?], less depreciation, less debt in proportion to the the Membership Interests at the time of selling (excluding herefrom 2002 Wellesley Blvd. Indianapolis, Indiana.
4
Exhibit 2.17
(b) Put Option. From and after sixty (60) months following the Closing, the Company will have a "put" option (the "Put") for Purchaser to acquire up to one hundred percent (100%) ownership of Company at a price equal to ten (10) times the most recent three-year (3-year) average after tax net income (the parties recognize that the Company does not have tax impact, but for purposes of the calculations in this Section 1.5 "after tax net income" will be calculated using the corporate tax rate of forty percent (40%)) of the Company, plus any future real estate purchased by Premiere Credit of North America, LLC, valued at the Book Value, less depreciation, less debt in proportion to the the Membership Interests at the time of selling (excluding herefrom 2002 Wellesley Blvd. Indianapolis, ).
(c) Process for Exercise of Call and Put. The Member exercising the Call or Put Option ("Exercising Member") shall give written notice of same to the other Members and the Company at the addresses set forth in section 11.2 below. Such notice shall specify the price of the Option, and within thirty (30) days after the notice is given, the parties, as appropriate, shall execute such documents and instruments reasonably required to effectuate the Option at the purchase price as calculated using the formula in (a) or (b) above and on the other terms as specified in the notice, and the closing of such transaction shall take place as soon as practicable but in any event not more than sixty (60) days following receipt of the notice. At such closing, the selling parties shall sell and transfer
5
Exhibit 2.17
their entire equity interest to the appropriate purchasing party free and clear of all liens, claims or encumbrances, other than the Operating Agreement, as amended by this provision.
1.6 Offer to Purchase. The Operating Agreement of Company shall include the following provision.:
Offer to Purchase.
(a) From and after thirty-six (36) months following Closing, a member, (hereinafter referred to as the "Offeror Member") shall have the right, exercisable by written notice (the "Offer") to any or all of the other Members (the "Offeree Member(s)"), to offer to buy the Offeree Members' entire equity interest in the Company at a purchase price and upon the other terms determined by the Offeror Members and specified in the Offer. The Offeree Members must elect by written notice (the "Notice of Election") to the Offeror Member not less than twenty (20) days after receipt of the Offer, either
(i) to sell the Offeree Members' entire equity interest in the Company to the Offeror Member at the purchase price and on the other terms specified in the Offer, or (ii) to offer to purchase the Offeror Member's entire equity interest in the Company at a purchase price equal to the price set forth in the Offer. Not later than ten (10) days after the Notice of Election, the parties, as appropriate, shall execute such documents and instruments reasonably required to sell and transfer either the Offeror Member's or the Offeree Members' (as applicable) entire equity interest in the Company at the purchase price and on the other terms as specified in the Offer, and the closing of such sale shall take place as soon as practicable but in any event
6
Exhibit 2.17
not more than one hundred eighty (180) days following receipt of the Notice of Election. At such closing, the selling party shall sell and transfer its entire equity interest to the appropriate purchasing party free and clear of all liens, claims or encumbrances, other than the Operating Agreement, as amended by this provision.
(b) For the purposes of this section 1.6, if the Offeror is Nelnet, Inc. then the Offer must be made to all other then existing Members and Membership Interests. If the Offeree is Nelnet, Inc. the Offeror must consist of all of the other then existing Members and Membership Interests.
1.7 Rights of Refusal. The Operating Agreement of Company shall include following provisions:
(a) First Right of Refusal. Subsequent to the Closing, Hoeft and Wolfe shall each have a first right of refusal to acquire the ownership interests of any Member should the Member wish to sell such interests, including pursuant to Purchaser's exercise of the Call. In order to exercise this first right of refusal, the Member desiring to sell, transfer or assign all of any part of the Member's interest to a third party shall communicate such intention in writing to the other Members (including Purchaser) and the Company stating the purchase price proposed for the transfer. Such notice shall be via registered or certified mail, return receipt requested to the address for each of the other Members and to the office of the Company and shall state the action the Member intends to take and the terms of the transaction. Within thirty (30) days after receiving this
7
Exhibit 2.17
notice, Hoeft or Wolfe, as applicable, may purchase at his option all or any part of the interest described in the notice for the purchase price stated in the notice, by giving notice of such within 30 days after receiving the notice, but Hoeft and Wolfe, as applicable, shall have 180 days to arrange financing and consummate the purchase.
(b) Second Right of Refusal. If the offer contained in the notice described above is not accepted by Hoeft or Wolfe, as applicable, within thirty (30) days from the date of receipt of the notice, then Purchaser may exercise a second right of refusal to purchase the Interest, at a price determined by the formula set forth in
Section 1.5(b) hereof. Such right shall be exercised within thirty
(30) days of the expiration of Hoeft or Wolfe's right of refusal period.
ARTICLE TWO
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers, jointly and severally, represent and warrant to Purchaser (except as to Section 2.1, which representation is made individually and severally), as follows:
2.1 Ownership of the Interests. Sellers are the beneficial owners and holders of record of the Interests, free and clear of any lien, mortgage, security interest, encumbrance, title defect or claim restricting or limiting Sellers' ability to transfer the Interests to Purchaser under and pursuant to this Agreement, and there is no subscription, warrant, call, unsatisfied preemptive right, option, convertible securities, rights of first refusal or other agreement of any kind to issue, purchase or otherwise receive from Sellers any of the Interests or any other security of the
8
Exhibit 2.17
Company. The percentages of Interests owned by each of the Sellers are set forth in Schedule 1.1 hereto. Upon execution hereof, Purchaser will be the title and beneficial owner of fifty percent (50%) of the Interests in the Company, free and clear from any lien, mortgage, security interest, encumbrance, title defect or restriction.
2.2 Organization of the Company. The Company is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Indiana, and is legally qualified to transact business and is in good standing in every jurisdiction in which the nature of the business conducted by it or the character or location of properties owned or leased by it makes such qualification necessary, including transaction of the business of collection of accounts, except in such jurisdiction where failure to be so duly qualified would not have a material adverse effect upon the Company. A list of the jurisdictions in which the Company is qualified to transact business is set forth in Schedule 2.2(a)(1) attached hereto. As of the Closing, the Company and Sellers have not conducted meetings of the Members on a regular or formal business, and no minute books have been kept. The Company has provided a resolution, attached hereto as Schedule 2.2(a)(2), signed by all Members (prior to Closing) and the Company, approving and ratifying all Company business decisions made prior to Closing. The Company is not in default under or in violation of any provision of its articles of organization or operating agreement. The Company has all licenses, permits and authorizations necessary to carry on the businesses in which it is engaged and to own and use the properties owned and used by it. None of the licenses, permits and authorizations of the Company will be terminated or are terminable due to consummation of the transaction provided for herein.
9
Exhibit 2.17
2.3 Capitalization of the Company. The Company has 100 membership Interests issued and outstanding, all of which have been duly authorized and validly issued, are fully paid and non-assessable and were issued by the Company in compliance with all applicable federal and state securities laws, rules and regulations. There is no outstanding or authorized option, subscription, warrant, call, right, commitment or other agreement of any character obligating the Company to sell or issue any additional membership interests or any other securities convertible into or exercisable for or evidencing the right to subscribe for any membership interests. There are no voting trusts, proxies or other agreements or understandings with respect to voting of the Interests. Purchaser agrees that subsequent to Closing, the Sellers may enter into a voting trust or other proxy that will allow the Sellers to vote as a block, to the extent Member votes are authorized by the Operating Agreement and such votes are taken.
2.4 Authority. This Agreement has been duly executed and delivered by Sellers, and Sellers have the right, power, authority and legal capacity to enter into and perform under this Agreement and to consummate the sale of their interests pursuant hereto. This Agreement is valid and binding upon Sellers and enforceable in accordance with its terms. The execution and delivery of this Agreement by Sellers do not, and the consummation of the transactions contemplated hereby and the performance by Sellers of the terms of this Agreement will not (a) violate any federal, state or local law or regulation,
(b) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any person or entity the right to accelerate, modify or cancel, or require any notice under any contract to which the Company is a party or by which the Company is bound or which any of its assets are subject, or (c) result in acceleration of any obligation under, or constitute an event of default under any order, judgment or decree to which the Company or Sellers are bound.
10
Exhibit 2.17
2.5 Articles of Organization, Certificate of Existence and Operating Agreement. Prior to the execution of this Agreement, Sellers have delivered to Purchaser a true and complete copy of the Company's Articles of Organization, Certificate of Existence and Operating Agreement, and any amendments thereto, as in effect on the date hereof and the Closing Date; neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will violate any provision of the Articles of Organization or Operating Agreement of the Company.
2.6 Financial Statements. Schedule 2.6 attached hereto contains an accurate and complete balance sheet of the Company as of, and profit and loss statements relating to the Company (collectively, the "Financial Statements") for: December 31, 2000; December 31, 2001; December 31, 2002; and December 31, 2003. Such information fairly presents the financial condition and results of operation of the Company as of and for such periods, have been prepared on a consistent basis throughout the periods covered thereby, are correct and complete, and are consistent with the books and records of the Company. All of the Financial Statements prior to December of 2003 are audited statements prepared in accordance with generally accepted accounting principles on a consistent basis throughout the periods covered thereby. Interim financial information for the period ended December 31, 2003, shall be supplemented by independent auditors as of the Closing Date. The Company does not have any direct or indirect, primary or secondary, liability of any type, whether accrued, absolute or contingent, liquidated or unliquidated, matured or unmatured, or otherwise that will have, or is reasonably likely to have, individually or in the aggregate, a material adverse effect upon the Company, except for the
11
Exhibit 2.17
liabilities which are accrued or reserved against and reflected upon the Financial Statements of the Company.
2.7 No Consent. No consent, license or permit of any governmental authority is required in connection with the execution, delivery, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby, and neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will violate, conflict with or result in the breach or termination of any contract, lease or other instrument to which the Company or Sellers is a party or by which the Company or Sellers is bound.
2.8 Subsidiaries and Other Affiliates. The Company does not have any subsidiaries or affiliates.
2.9 Ordinary Course of Business. The Company has not engaged in Company Business other than in the ordinary and usual course of business, including payment of compensation to Sellers, entering into contracts, making expenditures or entering into commitments of the Company. Sellers have not received distributions of dividends, bonuses, or other remuneration from the Company, other than their ordinary salaries and employee benefits, amounts necessary to satisfy tax obligations, and as disclosed in Schedule 2.9 annexed hereto.
2.10 Accounts Receivable. Schedule 2.10 sets forth a list of all of the Company Receivables as of the Closing Date. Each of the Company Receivables arose in the ordinary and usual course of business of the Company, but Sellers do not guarantee or otherwise promise that said Receivables will be paid.
2.11 Equipment and Other Tangible Property. Schedule 2.11 attached hereto sets forth
12
Exhibit 2.17
a list of all items of equipment, furniture, fixtures or other tangible property owned or leased by the Company with a fair market value in each case in excess of $5,000.00 (collectively, "Tangible Properties"). Schedule 2.11 lists those items of Tangible Property which are leased by the Company. Except for the rights of the lessor(s) thereof, the Tangible Properties are owned by the Company free and clear of all liens or other security interests. No representation or warranty is made concerning the physical condition of the Tangible Properties. The Company has delivered to Purchaser a correct and complete copy of the lease(s) of Tangible Property (the "Tangible Property Leases") The Tangible Property Leases are in full force and effect and have not been amended or modified except as disclosed in Schedule 2.11. Sellers have received no written notice of default from any lessor with respect to the Tangible Property Leases. The Company is the sole and unconditional owner of (or has a validly sold interest in), and has good and marketable title, free and clear of any security interests, liens, mortgages or encumbrances of any nature to the properties and assets used by it, located on its premises, or shown in the most recent financial statements. The properties and assets owned by the Company as of the Closing Date shall permit the Company to continue and carry on business and operations in the ordinary course of business.
2.12 Space Leases. The Abrams & Weldy, P.A. Lease. The Company has no space or real property leases other than the office lease between Company andAbrams & Weldy, P.A. ("Tenant") as set forth in Schedule 2.12(a) annexed hereto (the "Space Lease"). The Space Lease is in full force and effect and has not been amended or modified, except as may be disclosed in Schedule 2.12(a). The Company has not received any notice of default from the Tenant with respect thereto, and the Company is not in default with respect thereto. To the Company's
13
Exhibit 2.17
knowledge, Tenant is not in material default under the Space Lease. The Company shall obtain and attach hereto as Schedule 2.12(b) an Estoppel Certificate from Tenant effective as of the Closing Date.
2.13 Intellectual Property. Schedule 2.13 sets forth a complete list of all patents, pending applications for patents and registration certificates (including a brief description of the subject matter thereof, the date of filing, the jurisdiction and the patent application number), all trade names, trademarks and servicemarks and applications therefor, all copyright registrations, copyrights not registered, all internet domain registrations of the Company, all source codes used in the Business and operations of the Company as presently conducted, and all the software developed by the Company and offered by the Company for use by its clients as a part of the Company Business (collectively, the "Intellectual Property"). Sellers own no other intellectual property, other than such common law rights, if any, as the Company may have in its Company name by reason of the organization of the Company and the use of such name in the Company Business, and in its web address. The Company makes use of certain third party off-shelf operating and application software in its operation, none of which was specially created for the Company. Sellers make no representation as to the quality, duration, or validity of any of the Intellectual Property sold or assigned herein. The Company has not received notice from any third party that the Intellectual Property infringes the rights of such third party. The Company is the sole and exclusive owner of the entire right, title and interest in and to the Intellectual Property, free and clear of any security interests, liens, charges, conditions, adverse claims, encumbrances or any other title defect or restriction of any kind, and there are no pending or, to Sellers' knowledge, threatened litigation or adverse claims affecting or with respect the
14
Exhibit 2.17
Intellectual Property. No person or entity is infringing on any of the rights of any other person or entity.
2.14 Tax Matters. The Company has filed all federal, state and local tax returns which are required to be filed and has paid all Taxes shown on such returns and all assessments received by the Company to the extent that the same have become due for all fiscal periods to and including the fiscal year ending December 31, 2003, and all such returns are true, complete and correct in all material respects. All Taxes relating to the Company due on or before the Closing Date have been timely and fully paid. The charges, accruals and reserves for Taxes due or accrued but not yet due, relating to the Company for any Tax period prior to the Closing Date as reflected on the books of the Company are adequate to cover such Taxes. No penalties or other charges of any nature are or will become due with respect to the late filing of any Tax returns required to be filed on or before the Closing Date. There are no tax sharing agreements to which the Company is now or has ever been a party. The Company is not a party to any agreement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"). The Company is not a party to any joint venture, partnership or other arrangement or contract that could be treated as a partnership for federal income tax purposes. No tax or fee of any nature whatsoever is due from the Company or Purchaser under any applicable state or local law or regulation as a result of the consummation of the transactions contemplated hereby. Other than as set forth on Schedule 2.14, Seller has not received notice of any pending claims with respect to Taxes. As used herein, the term "Taxes" shall include all state, federal and local income tax liability, deferred income tax liability and other taxes,
15
Exhibit 2.17
including, without limitation, income taxes, estimated taxes, excise taxes, sales taxes, use taxes, gross receipts taxes, franchise taxes, employment and payroll related taxes, property taxes and import duties, whether or not measured in whole or in part by net income, and whether or not assessed or disputed, that are payable or deferrable, by the Company for the fiscal year ending December 31, 2003, or as to which the Company may have any liability for taxable periods ending on or before such date, or any liability for the period ending on the Closing Date, and all deficiencies or other additions to tax, interest and penalties owed by the Company or as to which the Company may have liability in connection with any of the foregoing.
2.15 Compliance with Laws; Third Party Claims.
(a) The Company has complied in all material respects, and is complying in all material respects, with all Federal, state and local laws, ordinances, regulations or other requirements, and the Company has not received notice that it is in violation of any Federal, state or local law, ordinance or regulation or any other requirement.
(b) Neither the Company nor the Sellers are aware of any material third party claim against any of them, arising out of the operations or activities of any of them related to the business of the Company, and the Company is not involved in any litigation claims or assessments that exceed $10,000 individually or items involving lesser amounts which exceed $30,000 in the aggregate, except as identified in Schedule 2.15(b).
2.16 Contracts and Other Agreements.
Schedule 2.16(i) lists, as of the date hereof, all of the contracts (other than contracts with clients of the Company Business) to which the Company is a party or to which it is bound, to the extent
16
Exhibit 2.17
any of the same individually involve consideration having a value aggregating in excess of $5,000 per agreement, or impose an obligation upon the Company of more than $ 25,000 (the "Non-Client Contracts"). The Non-Client Contracts are in full force and effect and have not been amended or modified, except to the extent disclosed in Schedule 2.16(i). The Company has not received written notice that the Company is in default of any of the material terms and conditions of the Non-Client Contracts. Schedule 2.16(ii) lists, as of the date hereof, all of the contracts with the Company's clients (the "Client Contracts"). The Client Contracts are in full force and effect and have not been amended or modified, except to the extent disclosed in Schedule 2.16(ii). The Company has not received notice that any of the Non-Client Contracts or Client Contracts are invalid or unenforceable or that the Company is in default of any of the material terms thereof. True and complete copies of all documents referred to in Schedules 2.16(i) and (ii) have been delivered to Purchaser. With respect to each of the Non-Client Contracts, Client Contracts and any other agreement to which the Company is a party or by which it is bound, such agreement is legal, valid, binding, enforceable in accordance with its terms and in full force and effect and will continue to be so following consummation of the transactions contemplated hereby, no party is in breach or default and no event has occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification or acceleration under such agreement. None of any such agreements contain any provision, which will or could result in termination or modification of any term upon a change in control or ownership of the Company.
2.17 Employee Benefits. The Company maintains no employee benefit plans as that term is defined in the Employment Retirement Income Security Act of 1974, as amended ("ERISA") other than a 401(k) plan and certain health benefit plans as set forth in Schedule 2.17
17
Exhibit 2.17
hereof. Schedule 2.17 consists of a true, correct and complete copy of the employee handbook in effect with respect to the Company's employees as of the date hereof, which handbook contains true and complete summaries of all material pension, retirement, profit-sharing, deferred compensation, membership interest option, employee ownership, severance pay, vacation, bonus or other material incentive plans, all other material written employee programs, arrangements or agreements, whether arrived at through collective bargaining or otherwise, all material medical, vision, dental or other health plans, all life insurance plans and all other material employee benefit plans or fringe benefit plans, including, without limitation, all "employee benefit plans" as that term is defined in Section 3(3) of ERISA, currently adopted, maintained by, sponsored in whole or in part by, or contributed to by, or on behalf of, the Company for the benefit of its employees, retirees, dependents, spouses, directors, independent contractors or other beneficiaries who are eligible to participate therein (the "Benefit Plans"). Neither the Company nor any ERISA Affiliate of the Company (which for purposes of this Agreement shall mean any entity required to be aggregated with the Company under the Code Sections 414(b) or (c)) has misrepresented any provision of such Benefit Plans to any Persons, such Benefit Plans have been administered substantially in accordance with their terms, and all required premium payments and contributions to and payments from such Benefit Plans have been made in accordance with the terms of the Benefit Plans and on a timely basis. In addition, for purposes of any provision of this Agreement that relates to Code Section 412(n), the term ERISA Affiliate shall mean any entity aggregated with a person under Code Sections 414(b), (c), (m) or
(o) which maintains or has maintained any multi-employer plan within the meaning of Section 3(37) of ERISA. All Benefit Plans have been administered and are in compliance in all material respects with the
18
Exhibit 2.17
applicable terms of ERISA, the Code and any other applicable law. No Benefit Plan which is a Defined Benefit Pension Plan (within the meaning of ERISA) has any "unfunded current liability," as that term is defined in Section 302(d)(8)(A) of ERISA, and the present fair market value of the assets of any such plan exceeds the plan's "benefit liabilities," as that term is defined in
Section 4001(a)(16) of ERISA, when determined under actuarial factors that would apply if the plan terminated in accordance with all applicable legal requirements. No Benefit Plan has an "accumulated funding deficiency" as defined in Code Section 412. No event has occurred with respect to a Benefit Plan that could subject the Company to liability under ERISA, other than liabilities for contributions due under such Benefit Plans in the ordinary course of business which arose from actions taken in compliance with ERISA. No Benefit Plan has been funded or administered in a manner that would result in liability for any Tax or penalty with respect to excise Taxes for overfunding or prohibited transactions under applicable law.
2.18 Insurance. Schedule 2.18 sets forth a list of all policies or binders of insurance (other than the health benefit insurances listed in Schedule 2.17 above) held by the Company.
2.19 Actions and Proceedings. Except as may be listed in Schedule 2.19, there are no actions, suits, claims, investigations, State or Federal Equal Employment Opportunity Commission proceedings or other proceedings pending or, to Sellers' knowledge, threatened against the Company.
2.20 Bank Accounts. Schedule 2.20 lists the Company's bank accounts and the institution(s) where such accounts are kept.
2.21 Labor Matters.
(a) The Company is in material compliance with, and has received no notice
19
Exhibit 2.17
from any governmental authority that it is not in material compliance with all applicable laws, whether federal, state or local, respecting employment and employment practices, terms and conditions of employment, wages and hours, and nondiscrimination in employment, or that it is engaged in any unfair labor practice.
(b) The Company is not a party to any written employment, compensation, consulting, severance pay or similar agreements with respect to its employees, all of whom are listed on Schedule 2.21(d) other than the agreements listed on Schedule 2.21(b). All employees are terminable at the will of the Company. The Company does not currently have any workers' compensation claims or liabilities. All employees are required to sign an "Agreement-Covenant Not to Compete" in the form attached as Schedule 2.21(b). Copies of all such executed agreements will be delivered to Purchaser at or before Closing.
(c) The Company has no union contracts and there is no pending petition for a union election.
(d) Attached hereto as Schedule 2.21(d) is a true and complete list of the names and job titles of all persons who are employees of the Company, together with annual base salaries, bonuses and commissions of such employees. There are no arrearages in the payment of wages or salaries to such employees.
2.22 Absence of Certain Events. Since the date of the most recent financial statements, there has not been:
(a) an amendment to the Company's articles of organization or operating agreement, or merger with or into or consolidation with any person or entity, change or agreement to change any agreements to which the Company is a party or the character or the business of the Company;
20
Exhibit 2.17
(b) any dividends declared or paid or other distributions of any kind to the Company's members declared or made, or any direct or indirect redemption, purchase, retirement or other acquisition of any of the Interests, except as identified on Schedule 2.9 hereto;
(c) any loan or advance made to any of the Company's officers, directors, employees, consultants, agents, shareholders or any other loan or advance made otherwise than in the ordinary course of business;
(d) any change in the financial condition, properties, business or operations of the Company or any event or circumstance which is, or with reasonable certainty may result in, singly or in the aggregate, a material adverse effect on the Company;
(e) any loss affecting any asset of the Company, unless such loss could not reasonably be expected to result in a material adverse effect upon the Company;
(f) any strike or other labor trouble or dispute has resulted in or may result in a material adverse effect upon the Company;
(g) any loss of any permit, license, qualification or certificate of authority held by the Company;
(h) any indebtedness, liability or obligation incurred by the Company or any transaction entered into by the Company, other than in the ordinary course of business, or any guarantee by the Company of any indebtedness, liability or obligation of any other person;
(i) any obligation, liability, security interest or lien, paid, discharged or satisfied by or on behalf of the Company other than the current liabilities reflected in the most recent financial statement;
21
Exhibit 2.17
(j) any sale, transfer or other disposition of any asset of the Company having a book value in excess of $10,000 in a single instance and $50,000 in the aggregate, or any cancellation of any debt or claim of the Company having a book value in excess of $10,000 in a single instance and $50,000 in the aggregate, except in the ordinary course of business;
(k) any material change in, or any contract to materially change, the compensation or other direct or indirect remuneration payable to any officer, employee or agent of the Company or any bonus, incentive or deferred compensation, profit sharing, retirement, pension, group insurance, death benefit or other fringe benefit plan, or any employment or consulting agreement, granted, entered into or materially amended or altered, other than in the ordinary course of business or as required pursuant to an existing employment agreement;
(l) any capital expenditure, addition or improvement made or committed to be made by or on behalf of the Company in excess of $10,000 with respect to any single expenditure, addition or improvement of the Company;
(m) any termination or failure to renew, or receipt of a threat (that was not subsequently withdrawn) by a third party to terminate or fail to renew any material agreement to which the Company is a party;
(n) any material failure to maintain the books and records of the Company in the usual, regular and ordinary manner, consistent with past practice, or any material change in the accounting principles or practices of the Company;
(o) any adverse change in the business, financial condition, operations, results of operations or future prospects of the Company.
22
Exhibit 2.17
2.23 Transactions With Related Parties. Set forth in Schedule 2.23 hereto is a true and complete list or description of all notes, advances or accounts (other than commission, salary, bonus reimbursements and other payments made by the Company in the normal course of business) receivable or payable by the Company from or to any director, officer, employee or member of the Company or any of their affiliates, as well as all agreements or arrangements under which the Company receives goods or services from any such persons. Since the date of the most recent financial statement, the Company has not incurred any obligation or liability to, or become a creditor of any member or former member of the Company or any relative or affiliate of any member or former member of the Company.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Sellers that:
3.1 Authority. This Agreement has been duly executed and delivered by Purchaser and Purchaser has the right, power, authority and legal capacity to enter into and perform under this Agreement and to consummate the transactions contemplated hereby.
3.2 No Consent. No consent of any other party, governmental authority, bureau or agency is required in connection with the execution, delivery, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby.
3.3 No Breach. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will violate, conflict with or result in the breach or termination of any contract, mortgage, lease, bond, indenture, agreement, franchise or other instrument or obligation to which Purchaser is a party or by which Purchaser may be bound.
23
Exhibit 2.17
ARTICLE FOUR
CONDITIONS TO PURCHASER'S OBLIGATIONS
4.1 Conditions to Purchaser's Obligations. The obligation of Purchaser to perform this Agreement is subject to satisfaction of the following conditions at or before the Closing Date, it being an explicit condition that all agreements and documents to be delivered to Purchaser which are not attached as Schedules or Exhibits (and therefore deemed satisfactory to Purchaser) must be in form and substance reasonably satisfactory to Purchaser:
4.2 Agreements Performed. Sellers shall have performed all of the obligations under this Agreement to be performed by them on or before the Closing Date;
4.3 Representations Accurate. The representations and warranties of Sellers contained herein will continue to be accurate in all material respects just as if made as of the Closing Date, without giving effect to any supplemental disclosure, update or modification of any Schedule hereto;
4.4 No Change. There will have been no material adverse changes in the financial condition, results of operations, assets, business or prospects of the Company;
4.5 Legal Action. There will be no pending or threatened legal action or inquiry which challenges the validity or legality of or seeks or could reasonably be expected to prevent, delay or impose conditions on the consummation of the transactions contemplated by this Agreement;
4.6 Transfer of Interests. At execution hereof, Purchaser will have received written transfer of the Interests, free of all security interests, liens or encumbrances of any nature, as well
24
Exhibit 2.17
as all other documents to be delivered pursuant to Section 5.1 hereof;
4.7 Certificate of Existence. Sellers shall have delivered to Purchaser a current certificate of existence issued by the Secretary of State of Indiana with respect to the Company;
4.8 Access to Records. Purchaser shall have been afforded an opportunity to review all books and records of the Company;
4.9 Others. Purchaser will have received each other document required to be delivered to Purchaser hereunder.
ARTICLE FIVE
DELIVERIES AT CLOSING
5.1 Deliveries at Closing. Upon the Closing Date:
(a) if all conditions set forth in Article Four have been fully satisfied, Purchaser shall pay the Purchase Price in accordance with Section 1.3 hereof;
(b) the Company and Hoeft and Wolfe, respectively, shall execute and deliver their respective employment agreements in the form annexed hereto as Exhibits 5.1(b)(i) and 5.1(b)(ii) (the "Employment Agreements"), and other key personnel of the Company as identified by Purchaser shall execute and deliver noncompete agreements in form and substance satisfactory to Purchaser; and
(c) Purchaser and Sellers shall deliver to Sellers such resolutions, certificates and authorizations, including good standing certificate(s), as may be reasonably required by Sellers' attorneys or Purchaser's attorneys to authorize and effectuate this transaction.
25
Exhibit 2.17
(d) originals or copies of all consents, approvals and authorizations that are necessary under applicable law or the Contracts to be obtained by the Sellers or the Company in connection with the consummation of the transactions contemplated by this Agreement;
(e) the Closing Balance Sheet, certified by the Sellers as being true and correct in all material respects as of the Closing Date; and
(f) such other documents relating to the Company as the Buyer may reasonably request.
ARTICLE SIX
BROKER'S FEES
Each of Sellers and Purchaser represents and warrants to the other that no broker or finder was engaged by, or has acted on behalf of Sellers, the Company or Purchaser in connection with this Agreement or the transactions contemplated hereby; and Sellers and Purchaser each agrees to indemnify and hold the other harmless from and against any claim by any broker or finder, engaged by the indemnifying party, claiming any fee, commission, compensation or other payment or remuneration resulting from or arising out of the negotiation or execution of this Agreement or the consummation of the transactions contemplated hereby.
ARTICLE SEVEN
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; LIMITATION.
7.1 Representations Contained in Agreement. Each of the representations and warranties made herein by either party shall survive the Closing, and continue to be binding regardless of any investigations made at any time by any party.
26
Exhibit 2.17
7.2 Indemnification. Sellers agree to indemnify in respect of, and hold Purchaser and Purchaser's directors, officers, shareholders, agents and affiliates harmless from and against, any and all damages, claims, deficiencies, losses, and all expenses including interest, penalties, reasonable attorneys' fees and disbursements (collectively, "Damages") arising from, in connection with or based upon, resulting from or otherwise in respect of any misrepresentation, breach of warranty, or breach, default or nonfulfillment or failure to perform any covenant or agreement on the part of Sellers under this Agreement and any Damages arising prior to Closing or arising out of the acts or omissions of Sellers or Company prior to Closing.
ARTICLE EIGHT
POST-CLOSING OBLIGATIONS
8.1 Noncompetition; Acquisition of Additional Collection Agency.
(a) Noncompetition. The Parties hereto agree that the noncompetition provisions contained in the Employment Agreements are binding upon Hoeft and Wolfe hereunder and shall be controlling over any provision to the contrary in the original and new Operating Agreement.
(b) Competing Agency. During the period of Purchaser's ownership of Interests in the Company, Purchaser shall not start another collection agency that would compete with Company.
(c) Acquisition of Agency. Should Purchaser, subsequent to the Closing Date, acquire another collection agency, Hoeft and Wolfe shall each have the option to purchase an ownership interest in such agency in an amount equal to their respective ownership in Company as of the date of such acquisition. Hoeft
27
Exhibit 2.17
and Wolfe shall provide notice of their intent to acquire such interest within thirty (30) days of their receipt of notice of the option, and shall have a period of one hundred eighty (180) days to arrange financing for their purchase. However, the foregoing timeframes shall not delay or otherwise affect the timing of Purchaser's acquisition.
8.2 Consents. To the extent that a change in control of the Company triggers a consent requirement of or notice requirement to any third party with respect to any of the Tangible Property Leases, Space Leases, or Contracts, Sellers shall cooperate with the Company to obtain such consents or give such notice, as the case may be, prior to Closing.
8.3 Officers and Employees. Without incurring any liability with respect to the Company, the Company shall use its best efforts to cause all officers and employees of the Company to remain with the Company after the Closing Date.
ARTICLE NINE
OTHER MATTERS
9.1 Future Portfolio Acquisitions. Upon request by Hoeft and Wolfe, Purchaser agrees to consider lending money to Company for purposes of debt portfolio acquisition, company acquisition and other investments. Purchaser shall have no obligation to lend any amount and shall have sole discretion as to the terms and amount of any funds it chooses to lend, but agrees to consider such requests in good faith.
9.2 Distribution of Company Earnings. The Company Operating Agreement shall state that Hoeft and Wolfe shall determine when and if any distribution of income or other assets of the Company shall occur, and that any such distribution shall be made to all Members
28
Exhibit 2.17
according to their ownership Interest. Distribution of such amounts necessary for each Member to satisfy minimum tax obligations shall occur on a quarterly basis.
9.3 Collection Activities on Nelnet Alternative Loans. At Purchaser's discretion, Purchaser may permit the Company to attempt collection activities on alternative education loans owned by Purchaser. If such activities should be authorized, placement of such loans shall occur at approximately one hundred fifty (150) days of delinquency. Standards for the Company's performance ("Standards") and fees to the Company for its activities with respect to such placements shall be negotiated between Company and Purchaser prior to the first placement. Purchaser reserves the right to cease placements at any time and to decline further placements should the Company fail to meet the Standards.
9.4 Assistance to Company. Purchaser will utilize reasonable efforts to establish relationships for Company with guarantee agencies and educational institutions with which Purchaser has existing relationships. The foregoing shall include, but not be limited to, attempting to establish the Company as a vendor to the Tennessee Student Assistance Corporation ("TSAC") for education loans held by TSAC that have been in default status for more than four (4) years without establishment of payment terms.
9.5 Company Business. So long as they collectively own (a) at least thirty-five percent (35%) of the Interests, if the reduction in their Interests is due to their exercise of the Put or (b) at least twenty percent (20%) of the Interests, if the reduction in their Interests is due to Purchaser's exercise of the Call, Hoeft and Wolfe shall be responsible for the day to day operations of the Company Business, including employment decisions (other than with respect to their own employment), operations decisions, and policy decisions. The Managing Board of the
29
Exhibit 2.17
Company shall consist of four members and shall meet on at least a quarterly basis. The Managing Board shall oversee the Company Business in compliance with the Company's Operating Agreement and the Indiana Business Flexibility Act as amended. The initial members of the Managing Board are: Cheryl Watson and Chuck Hosea on behalf of Purchaser; Hoeft and Wolfe. Approval of the Managing Board will be required for any expenditure in excess of two hundred fifty thousand dollars ($250,000), and such approval shall require the affirmative vote of three of the Managing Board members. The Managing Board meetings shall be held in Indianapolis, Indiana unless otherwise agreed by unanimous vote of the Managers. Should any member of the Managing Board be removed, resign or otherwise cease to participate thereon, said member shall be replaced in the following manner:

9.5.1    If  the  member  represents  Purchaser,  the  Purchaser  shall
         propose  a  replacement  member,  whose  appointment  shall be
         approved by the majority of the Managing Board,  such approval
         not to be  unreasonably  withheld.  For any  period  in  which
         Purchaser  has only one  member  of the  Managing  Board  said
         member  shall  represent  both  of  Purchaser's  votes  on the
         Managing Board.

9.5.2    If Hoeft or Wolfe is removed,  resigns or otherwise  ceases to
         participate,  the  other of Hoeft or  Wolfe  shall  propose  a
         replacement member, whose appointment shall be approved by the
         majority  of  the  Managing  Board,  such  approval  not to be
         unreasonably  withheld.  For any period in which only Hoeft or
         Wolfe   remains  on  the  Managing   Board  with   Purchaser's
         representatives,  said member shall represent two votes on the
         Managing Board.

                                                                     30	

                                                           Exhibit 2.17	

ARTICLE TEN
DISTRIBUTIONS, CASH ON HAND, RECEIVABLES
10.1 The Parties have agreed that for the ease and convenience of this transaction, the Company and the Members that on the date of closing, the Company will make distributions to current members, Hoeft, Wolfe and Mercer in an amount to leave no less than $100,000.00 in the operating account of the Company on the date of Closing, that any and all company receivables on the date of closing will be placed in the Company Operating Account, and that it is agreed and acknowledged that the provisions of the current and new Operating Agreement which require the Company to distribute at least a Member's tax liability shall have been complied with.
ARTICLE ELEVEN
MISCELLANEOUS
11.1 Costs and Expenses. Sellers and Purchaser shall each bear their own expenses incurred in connection with the negotiation, preparation, execution and closing of this Agreement and the transactions contemplated hereby.
11.2 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if sent certified mail, return receipt requested, or by United States Postal Service Overnight Mail, or by UPS or FedEx, to the parties at their respective addresses first written above (or at such other address for a party as shall be specified by like notice) with
31
Exhibit 2.17
simultaneous copies given in the same manner to the respective attorneys for the parties as set forth below. Notices shall be deemed given three (3) business days after the same (including the required copy thereof) are mailed by certified mail, return receipt requested, and on the next business day if the same are sent overnight as aforesaid.
If notice is given to any of the Sellers, a copy shall be sent to each at the following addresses:
Premiere Credit of North America, LLC 2002 N. Wellesley Boulevard Indianapolis, IN 46219 Attention: David A. Hoeft
David A. Hoeft
2002 N. Wellesley Boulevard Indianapolis, IN 46219
Todd J. Wolfe
2002 N. Wellesley Boulevard Indianapolis, IN 46219
If notice is given to Purchaser, a copy shall be sent to:
Cheryl Watson, Executive Director 8425 Woodfield Crossing Boulevard Indianapolis, IN 46240
and to:
Edward P. Martinez, General Counsel Nelnet, Inc.
3015 S. Parker Road, Suite 400 Aurora, CO 80014
11.3 Assignment and Amendment. This Agreement shall not be assignable by any party and shall not be altered or otherwise amended except pursuant to a writing executed by all of the parties hereto.
32
Exhibit 2.17
11.4 Severability. If any provision of this Agreement, or the application of any such provision to any person or circumstance, shall be held invalid by a court of competent jurisdiction, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.
11.5 Publicity. No notices to third parties or other publicity, including press releases, concerning any of the transactions provided for herein shall be made by any party hereto unless planned, coordinated and agreed to by the parties hereto, except to the extent otherwise required by law.
11.6 Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
11.7 Governing Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Indiana without giving effect to any choice or conflict of law provision or rule (whether of the State of Indiana or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Indiana. Any dispute with respect hereto shall be litigated in the state and Federal Courts situated in the state chosen by the party initiating such litigation.
11.8 Dispute Resolution. Notwithstanding section 11.7, the Members agree that any dispute arising in connection with the interpretation of this Agreement or the performance of any Member under this Agreement or otherwise relating to this Agreement will be treated in accordance with the procedures set forth in this Section, prior to the resort by any Member to arbitration or litigation in connection with such dispute. The dispute will be referred for resolution first to a designated representative of each Member. Such procedure will be invoked
33
Exhibit 2.17
by a Member presenting to the other(s) a Notice of Request for Resolution of Dispute (a "Notice") identifying the issues in dispute sought to be addressed hereunder. A telephone or personal conference of those designees will be held within ten (10) business days after delivery of the Notice. In the event that the telephone or personal conference between these individuals does not take place or does not resolve the dispute, either Member may refer the dispute to binding arbitration pursuant to the arbitration provisions set forth below.
11.9 Arbitration. All claims or disputes between the Members arising out of or relating to this Agreement will be decided by arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association currently in effect and in accordance with Title 9 of the United States Code, unless the Members mutually agree otherwise in writing. Notice of the demand for arbitration must be filed in writing with the other Member or Members and must be made within three business days after the meeting of designees set forth above has concluded. All statutes of limitation, which would otherwise be applicable in a judicial action brought by a Member, will apply to any arbitration or reference proceeding hereunder. The arbitration will be decided by a single arbitrators selected by the Members. If the Members cannot agree on a single arbitrator each Member will select an arbitrator and those two arbitrators will select a third arbitrator. Arbitration will be initiated in the locale chosen by the party initiating the proceeding. Said arbitration will occur within thirty (30) consecutive days after the Member demanding arbitration delivers the written demand on the other Member(s) unless the Members mutually agree otherwise in writing. The award rendered by the arbitrator(s) will be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Except by written consent of the Members, no arbitration arising out of or relating to
34
Exhibit 2.17
this Agreement may include, by consolidation, joinder or in any other manner, any person or entity not a party to the Agreement under which such arbitration arises. The arbitration agreement herein among the Members will be specifically enforceable under applicable law in any court having jurisdiction thereof. No Member will appeal such award nor seek review, modification, or vacation of such award in any court or regulatory agency. The arbitrators will award to the prevailing Member, if any, as determined by the arbitrators, all of its Costs and Fees. "Costs and Fees" mean all reasonable pre-award expenses of the arbitration, including the arbitrators' fees, administrative fees, travel expenses, out-of-pocket expenses, such as copying and telephone, court costs, witness fees and attorneys' fees.
11.10 Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise
11.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute a single instrument. It shall not be necessary that any counterpart be signed by all of the parties hereto. Facsimile signatures hereto shall be deemed original signatures for all purposes.
11.12 Knowledge. For the purposes of this Agreement, the phrase (i) "to Seller's knowledge" shall mean the actual knowledge, after due inquiry within the Company, of any of
35
Exhibit 2.17
the Sellers or the Company's directors and executive officers, and (ii) "to Buyer's knowledge" shall mean the actual knowledge, after due inquiry within the Buyer, of any of the Buyer's executive officers.
11.13 Entire Agreement. This Agreement and the Exhibits and Schedules identified herein set forth the entire understanding and agreement between the parties and supersede and replace any prior understanding, agreement or statement (written or oral) of intent. No provision of this Agreement shall be construed to confer any rights or remedies on any person other than Sellers and Purchaser.
36
Exhibit 2.17
11.14 Mercer's Agreements. Tina D. Mercer hereby does waive any first right of refusal and any other known or unknown rights contained in the Company's current Operating Agreement that may be contradicted by this Agreement, and Tina D. Mercer does hereby agree with the manner and form of the payment of the Purchase Price of Section 1.3 and the distribution of Capital Contribution of Section 1.4 and the distribution and provisions of Section 10 and Tina D. Mercer has no objections to and is in agreement with this entire Agreement for Purchase of the LLC Membership Interest.
[remainder of page intentionally blank]
37
Exhibit 2.17
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date first written above.
Sellers: Premiere Credit of North America, LLC

By:      /s/ Todd J. Wolfe
         ------------------

Title:   /s/ COO and President
         ---------------------	

David A. Hoeft

/s/ David A. Hoeft
------------------	

Todd J. Wolfe

/s/ Todd J. Wolfe
------------------	

Tina D. Mercer

/s/ Tina D. Mercer
------------------	

Purchaser: Nelnet, Inc.

By:      /s/ Chuck Hosea
         ---------------
         Chuck Hosea
         Executive Director	

38
Exhibit 2.17
Schedule of Membership Interest
Prior to Closing
David A. Hoeft 45.6%
Todd J. Wolfe 46.5%
Tina D. Mercer 7.9%
Schedule of Membership Interest
After Wolfe Purchase of 1.9% of Mercer's Interest
Prior to Closing
David A. Hoeft 45.6%
Todd J. Wolfe 48.4%
Tina D. Mercer 6.0%
Schedule of Membership Interest
After Closing And After
David A. Hoeft 18.85%
Todd J. Wolfe 25.15%
Tina D. Mercer 6.0%
Nelnet, Inc. 50%
39
 
Exhibit 4.11

INDENTURE OF TRUST
by and among
NELNET EDUCATION LOAN FUNDING, INC.
and
WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Indenture Trustee
and
WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Eligible Lender Trustee
Dated as of January 1, 2004

Exhibit 4.11
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference only and is not intended to define, limit or describe the purpose or intent of any provisions of this Indenture of Trust.)

                                                                                                               Page
                                                                                                               ----

                                                     ARTICLE I

DEFINITIONS AND USE OF PHRASES...................................................................................3

                                                    ARTICLE II
                                              THE SERIES 2004-1 NOTES

Section 2.01.         Series 2004-1 Note Details................................................................24
Section 2.02.         Execution of Series 2004-1 Notes..........................................................27
Section 2.03.         Registration, Transfer and Exchange of Series 2004-1 Notes; Persons Treated as
                      Registered Owners.........................................................................27
Section 2.04.         Lost, Stolen, Destroyed and Mutilated Series 2004-1 Notes.................................31
Section 2.05.         Forms of Series 2004-1 Notes..............................................................31
Section 2.06.         Indenture Trustee's Authentication Certificate............................................31
Section 2.07.         Cancellation and Destruction of Series 2004-1 Notes by the Indenture Trustee..............32
Section 2.08.         Temporary Series 2004-1 Notes.............................................................32
Section 2.09.         Redemption of and Principal Reduction Payments on the Series 2004-1 Notes.................32
Section 2.10.         Delivery of Series 2004-1 Notes...........................................................36
Section 2.11.         Deposit of Series 2004-1 Note Proceeds....................................................37

                                                    ARTICLE III
                          PARITY AND PRIORITY OF LIEN; OTHER OBLIGATIONS; AND DERIVATIVE
                                                     PRODUCTS

Section 3.01.         Parity and Priority of Lien...............................................................37
Section 3.02.         Other Obligations.........................................................................37
Section 3.03.         Derivative Products; Counterparty Payments; Issuer Derivative Payments....................38

                                                    ARTICLE IV
                             PROVISIONS APPLICABLE TO THE NOTES; DUTIES OF THE ISSUER

Section 4.01.         Payment of Principal, Interest and Premium................................................39
Section 4.02.         Representations and Warranties of the Issuer..............................................39
Section 4.03.         Covenants as to Additional Conveyances....................................................39
Section 4.04.         Further Covenants of the Issuer...........................................................39
Section 4.05.         Enforcement of Servicing Agreements.......................................................41
Section 4.06.         Procedures for Transfer of Funds..........................................................41
Section 4.07.         Additional Covenants with Respect to the Higher Education Act.............................42
Section 4.08.         Financed Eligible Loans; Collections Thereof; Assignment Thereof..........................43
Section 4.09.         Appointment of Agents, Etc................................................................43
Section 4.10.         Capacity to Sue...........................................................................43	

Exhibit 4.11

Section 4.11.         Continued Existence; Successor to Issuer..................................................44
Section 4.12.         Amendment of Student Loan Purchase Agreements.............................................44
Section 4.13.         Representations; Negative Covenants.......................................................44
Section 4.14.         Additional Covenants......................................................................50
Section 4.15.         Providing of Notice.......................................................................51
Section 4.16.         Statement as to Compliance................................................................51
Section 4.17.         Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.................51
Section 4.18.         Representations of the Issuer Regarding the Indenture Trustee's Security Interest.........52
Section 4.19.         Covenants of the Issuer Regarding the Indenture Trustee's Security Interest...............53
Section 4.20.         Tax Treatment.............................................................................53
Section 4.21.         Opinions as to Indenture Trust Estate.....................................................54
Section 4.22.         Borrower Incentive Programs...............................................................54

                                                     ARTICLE V
                                                       FUNDS

Section 5.01.         Creation and Continuation of Funds and Accounts...........................................55
Section 5.02.         Acquisition Fund..........................................................................55
Section 5.03.         Class B Supplemental Reserve Fund.........................................................58
Section 5.04.         Collection Fund...........................................................................59
Section 5.05.         Note Payment Fund.........................................................................64
Section 5.06.         Remarketing Fee Fund......................................................................67
Section 5.07.         Reserve Fund..............................................................................68
Section 5.08.         Supplemental Interest Fund................................................................68
Section 5.09.         Transfers to Issuer.......................................................................69
Section 5.10.         Investment of Funds Held by Indenture Trustee.............................................69
Section 5.11.         Investment Securities.....................................................................70
Section 5.12.         Release; Sale of Financed Eligible Loans..................................................72

                                                    ARTICLE VI
                                               DEFAULTS AND REMEDIES

Section 6.01.         Events of Default Defined.................................................................73
Section 6.02.         Remedy on Default; Possession of Trust Estate.............................................74
Section 6.03.         Remedies on Default; Advice of Counsel....................................................75
Section 6.04.         Remedies on Default; Sale of Trust Estate.................................................75
Section 6.05.         Appointment of Receiver...................................................................76
Section 6.06.         Restoration of Position...................................................................76
Section 6.07.         Purchase of Properties by Indenture Trustee or Registered Owners..........................76
Section 6.08.         Application of Sale Proceeds..............................................................77
Section 6.09.         Accelerated Maturity......................................................................77
Section 6.10.         Remedies Not Exclusive....................................................................77
Section 6.11.         Direction of Indenture Trustee............................................................77
Section 6.12.         Right to Enforce in Indenture Trustee.....................................................78
Section 6.13.         Physical Possession of Obligations not Required...........................................78
Section 6.14.         Waivers of Events of Default..............................................................79	

ii
 
Exhibit 4.11

Section 6.15.         Notice of Defaults........................................................................79

                                                    ARTICLE VII
                                               THE INDENTURE TRUSTEE

Section 7.01.         Acceptance of Trust.......................................................................79
Section 7.02.         Recitals of Others........................................................................80
Section 7.03.         As to Filing of Indenture.................................................................80
Section 7.04.         Indenture Trustee May Act Through Agents..................................................80
Section 7.05.         Indemnification of Indenture Trustee......................................................81
Section 7.06.         Indenture Trustee's Right to Reliance.....................................................82
Section 7.07.         Compensation of Indenture Trustee.........................................................82
Section 7.08.         Indenture Trustee May Own Series 2004-1 Notes.............................................83
Section 7.09.         Resignation of Indenture Trustee..........................................................83
Section 7.10.         Removal of Indenture Trustee..............................................................83
Section 7.11.         Successor Indenture Trustee...............................................................84
Section 7.12.         Manner of Vesting Title in Indenture Trustee..............................................84
Section 7.13.         Additional Covenants by the Indenture Trustee to Conform to the Higher Education
                      Act.......................................................................................85
Section 7.14.         Right of Inspection.......................................................................85
Section 7.15.         Limitation with Respect to Examination of Reports.........................................85
Section 7.16.         Servicing Agreement.......................................................................85
Section 7.17.         Additional Covenants of Indenture Trustee.................................................85
Section 7.18.         Duty of Indenture Trustee with Respect to Rating Agencies.................................86
Section 7.19.         Merger of the Indenture Trustee...........................................................86
Section 7.20.         Receipt of Funds from Servicers...........................................................87
Section 7.21.         Special Circumstances Leading to Resignation of Indenture Trustee.........................87
Section 7.22.         Survival of Indenture Trustee's Rights to Receive Compensation, Reimbursement and
                      Indemnification...........................................................................87
Section 7.23.         Indenture Trustee May File Proofs of Claim................................................87
Section 7.24.         Payment of Taxes and Other Governmental Charges...........................................88

                                                   ARTICLE VIII
                                              SUPPLEMENTAL INDENTURES

Section 8.01.         Supplemental Indentures Not Requiring Consent of Registered Owners........................88
Section 8.02.         Supplemental Indentures Requiring Consent of Registered Owners............................90
Section 8.03.         Additional Limitation on Modification of Indenture........................................91

                                                    ARTICLE IX
                                                GENERAL PROVISIONS

Section 9.01.         Notices...................................................................................91
Section 9.02.         Covenants Bind Issuer.....................................................................92
Section 9.03.         Lien Created..............................................................................92
Section 9.04.         Severability of Lien......................................................................92
Section 9.05.         Consent of Registered Owners Binds Successors.............................................92
Section 9.06.         Nonliability of Directors; No General Obligation..........................................93
Section 9.07.         Nonpresentment of Series 2004-1 Notes or Interest Checks..................................93
Section 9.08.         Security Agreement........................................................................93	

iii
 
Exhibit 4.11

Section 9.09.         Laws Governing............................................................................93
Section 9.10.         Severability..............................................................................93
Section 9.11.         Exhibits..................................................................................93
Section 9.12.         Non-Business Days.........................................................................94
Section 9.13.         Parties Interested Herein.................................................................94
Section 9.14.         Obligations Are Limited Obligations.......................................................94
Section 9.15.         Counterparty Rights.......................................................................94
Section 9.16.         Aggregate Principal Amount of Obligations.................................................94
Section 9.17.         Financed Eligible Loans...................................................................94
Section 9.18.         No Petition; Subordination................................................................94

                                                     ARTICLE X
                          PAYMENT AND CANCELLATION OF NOTES AND SATISFACTION OF INDENTURE

Section 10.01.        Trust Irrevocable.........................................................................95
Section 10.02.        Satisfaction of Indenture.................................................................95
Section 10.03.        Cancellation of Paid Series 2004-1 Notes..................................................96

                                                    ARTICLE XI
                                                    TERMINATION

Section 11.01.        Termination of the Trust..................................................................96
Section 11.02.        Notice....................................................................................97

                                                    ARTICLE XII
                                              REPORTING REQUIREMENTS

Section 12.01.        Annual Statement as to Compliance.........................................................97
Section 12.02.        Annual Independent Public Accountants' Servicing Report...................................98
Section 12.03.        Administrator's Certificate...............................................................98
Section 12.04.        Statements to Registered Owners...........................................................98

APPENDIX A CERTAIN TERMS AND PROVISIONS OF THE Reset RATE NOTES................................................A-1

APPENDIX B CERTAIN TERMS AND PROVISIONS OF THE AUCTION RATE NOTES..............................................B-1

EXHIBIT A FORM OF RESET RATE NOTES.............................................................................A-1

EXHIBIT B FORM OF AUCTION RATE NOTES...........................................................................B-1

EXHIBIT C NOTICE OF PAYMENT DEFAULT............................................................................C-1

EXHIBIT D NOTICE OF CURE OF PAYMENT DEFAULT....................................................................D-1

EXHIBIT E NOTICE OF PROPOSED CHANGE IN LENGTH OF ONE OR MORE AUCTION PERIODS...................................E-1

EXHIBIT F NOTICE ESTABLISHING CHANGE IN LENGTH OF ONE OR MORE AUCTION PERIODS..................................F-1

EXHIBIT G NOTICE OF CHANGE IN AUCTION DATE.....................................................................G-1

EXHIBIT H ELIGIBLE LOAN ACQUISITION CERTIFICATE................................................................H-1

EXHIBIT I FORM OF ADMINISTRATOR'S MONTHLY SERVICING PAYMENT DATE CERTIFICATE...................................I-1	

iv
 
Exhibit 4.11

EXHIBIT J FORM OF ADMINISTRATOR'S DISTRIBUTION DATE CERTIFICATE................................................J-1

EXHIBIT K FORM OF STUDENT LOAN PURCHASE AGREEMENT..............................................................K-1	

v
Exhibit 4.11
INDENTURE OF TRUST
THIS INDENTURE OF TRUST, dated as of January 1, 2004 (this "Indenture"), is by and among NELNET EDUCATION LOAN FUNDING, INC., a corporation duly organized and existing under the laws of the State of Nebraska (the "Issuer"), WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking association duly organized and operating under the laws of the United States of America, as indenture trustee hereunder (together with its successors, the "Indenture Trustee"), and WELLS FARGO BANK MINNESOTA, National Association, as eligible lender trustee hereunder (together with its successors, the "Eligible Lender Trustee") (all capitalized terms used in these preambles, recitals and granting clauses shall have the same meanings assigned thereto in Article I hereof);
W I T N E S S E T H:
WHEREAS, the Issuer represents that it is duly created as a corporation under the laws of the State and that by proper action of its governing body it has duly authorized the execution and delivery of this Indenture, which Indenture provides for the payment of student loan asset-backed notes (the "Series 2004-1 Notes") and the payments to any Counterparty; and
WHEREAS, the Indenture Trustee has agreed to accept the trusts herein created upon the terms herein set forth; and
WHEREAS, it is hereby agreed between the parties hereto, the Registered Owners of the Series 2004-1 Notes (the Registered Owners evidencing their consent by their acceptance of the Series 2004-1 Notes) and any Counterparty (the Counterparty evidencing its consent by its execution and delivery of a Derivative Product) that in the performance of any of the agreements of the Issuer herein contained, any obligation it may thereby incur for the payment of money shall not be general debt on its part, but shall be secured by and payable solely from the Trust Estate, payable in such order of preference and priority as provided herein;
NOW, THEREFORE, the Issuer and, with respect to the legal title to the Financed Eligible Loans, the Eligible Lender Trustee, in consideration of the premises and acceptance by the Indenture Trustee of the trusts herein created, of the purchase and acceptance of the Series 2004-1 Notes by the Registered Owners thereof, of the execution and delivery of any Derivative Product by a Counterparty and the Issuer and the acknowledgement thereof by the Indenture Trustee, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, does hereby GRANT, CONVEY, PLEDGE, TRANSFER, ASSIGN AND DELIVER to the Indenture Trustee, for the benefit of the Registered Owners of the Series 2004-1 Notes and any Counterparty (to secure the payment of any and all amounts which may from time to time become due and owing to a Counterparty pursuant to any Derivative Product), all of their right, title and interest in and to the moneys, rights, and properties described in the granting clauses A through F below (the "Trust Estate"), as follows:
GRANTING CLAUSE A
The Revenues (other than Revenues released from the lien of the Trust Estate as provided herein);
Exhibit 4.11
GRANTING CLAUSE B
All moneys and investments held in the Funds and Accounts created pursuant to Section 5.01 hereof;
GRANTING CLAUSE C
The Financed Eligible Loans (other than Financed Eligible Loans released from the lien of the Trust Estate as provided herein);
GRANTING CLAUSE D
The Servicing Agreements, the Administration Agreement, the Escrow Reserve Agreement, the Assignment Agreement, the Student Loan Purchase Agreements, the Custodian Agreements and the Guarantee Agreements as the same relate to Financed Eligible Loans;
GRANTING CLAUSE E
Any Derivative Product and any Counterparty Guarantee; provided, however, that this Granting Clause E shall not be for the benefit of a Counterparty with respect to its Derivative Product or any related Counterparty Guarantee; and
GRANTING CLAUSE F
Any and all other property, rights and interests of every kind or description that from time to time hereafter is granted, conveyed, pledged, transferred, assigned or delivered to the Indenture Trustee as additional security hereunder.
TO HAVE AND TO HOLD the Trust Estate, whether now owned or held or hereafter acquired, unto the Indenture Trustee and its successors or assigns;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the equal and proportionate benefit and security of all present and future Registered Owners of the Series 2004-1 Notes, without preference of any Series 2004-1 Note over any other, except as provided herein, and for enforcement of the payment of the Series 2004-1 Notes in accordance with their terms, and all other sums payable hereunder (including payments due and payable to any Counterparty) or on the Series 2004-1 Notes, and for the performance of and compliance with the obligations, covenants, and conditions of this Indenture, as if all the Series 2004-1 Notes and any Derivative Products at any time Outstanding had been executed and delivered simultaneously with the execution and delivery of this Indenture;
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns, shall well and truly pay, or cause to be paid, the principal of the Series 2004-1 Notes and the interest due and to become due thereon, or provide fully for payment thereof as herein provided, at the times and in the manner mentioned in the Series 2004-1 Notes according to the true intent and meaning thereof, and shall make all required payments into the Funds as required under Article V hereof, or shall provide, as permitted hereby, for the payment thereof by depositing with the Indenture Trustee sums sufficient to pay or to provide for payment of the entire amount due and to become so due as herein provided (including payments due and payable to any Counterparty), then this
2
Exhibit 4.11
Indenture and the rights hereby granted shall cease, terminate and be void; otherwise, this Indenture shall be and remain in full force and effect;
NOW, THEREFORE, it is mutually covenanted and agreed as follows:
ARTICLE I
DEFINITIONS AND USE OF PHRASES
The following terms have the following meanings unless the context clearly requires otherwise (certain additional terms relating to the Series 2004-1 Notes are defined in Appendices A and B hereto):
"Account" shall mean any of the accounts created and established within any Fund pursuant to this Indenture.
"Acquisition Fund" shall mean the Fund by that name created in Section 5.01(a) hereof and further described in Section 5.02 hereof, including any Accounts and Subaccounts created therein.
"Add-on Consolidation Loan" shall mean an Eligible Loan included in the Trust Estate, the principal balance of which is added to an existing Consolidation Loan during the Add-on Period, as required by the Higher Education Act.
"Add-on Period" shall mean the period of 180 days after the date of origination of any Consolidation Loan financed by the Issuer.
"Administration Agreement" shall mean the Administrative Services Agreement, dated as of January 1, 2004, among the Issuer, the Indenture Trustee, the Eligible Lender Trustee and National Education Loan Network, Inc., as administrator, and any other Administration Agreement entered into between the Issuer and an entity that will provide administrative services for the Issuer, each as amended and supplemented pursuant to the terms and provisions thereof.
"Administration Fee" shall mean an amount equal to 0.18% per annum, based on the aggregate principal amount of the Financed Eligible Loans within the Trust Estate at any time, as determined by the Administrator.
"Administrator" shall mean National Education Loan Network, Inc. in its capacity as administrator of the Issuer and the Financed Eligible Loans, and any successor thereto in accordance with the Administration Agreement.
"Administrator's Distribution Date Certificate" shall mean a certificate signed by the Administrator in substantially the form attached as Exhibit J hereto.
"Administrator's Monthly Servicing Payment Date Certificate" shall mean a certificate signed by the Administrator in substantially the form attached as Exhibit I hereto.
"Agent Member" shall mean a member of, or participant in, a Securities Depository.
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Exhibit 4.11
"Aggregate Quarterly Funding Amount" shall mean, for any Quarterly Distribution Date, the sum of the Quarterly Funding Amounts for that Quarterly Distribution Date; provided, however, that if the aggregate amount on deposit in the Remarketing Fee Fund on any Quarterly Distribution Date, after giving effect to any remarketing fee payments therefrom in respect of that Quarterly Distribution Date, exceeds the sum of the Reset Period Target Amounts for that Quarterly Distribution Date, such excess will be transferred to the Collection Fund pursuant to Section 5.06 of the Indenture.
"Aggregate Value" shall mean on any calculation date the sum of the Values of all assets of the Trust Estate.
"Asset Release Test" shall have the meaning described in Section 5.09 hereof.
"Assignment Agreement" shall mean the Partial Assignment Agreement, dated as of January 1, 2004, between the Issuer and the Indenture Trustee assigning to the Indenture Trustee certain rights of the Issuer under certain of its loan purchase agreements and servicing agreements, as amended and supplemented pursuant to the terms and provisions thereof.
"Auction Rate Distribution Date" shall mean, with respect to each Class of the Auction Rate Notes, (a) so long as such Class of the Auction Rate Notes bear interest at an Auction Rate Notes Interest Rate for an Auction Period of not greater than 90 days, the Business Day immediately following the expiration of the Initial Period for such Auction Rate Notes, and each related Auction Period thereafter, commencing on March 4, 2004 for the Class B-1 Notes and March 11, 2004 for the Class B-2 Notes; and (b) if and for so long as such Class of the Auction Rate Notes bear interest at an Auction Rate Notes Interest Rate for an Auction Period of greater than 90 days, the 25th day of each February, May, August and November and the Business Day immediately following the expiration of the related Auction Period. On any Auction Rate Distribution Date that is a designated calendar date (such as described in clause (b) above), if the designated date is not a Business Day, interest shall be payable on the next succeeding Business Day in the amount accrued to but excluding the designated calendar date and no interest shall accrue on the payment so deferred during the intervening period. On any Auction Rate Distribution Date that is not a designated calendar date (such as described in clause (a) above), interest shall be payable in the amount accrued to but excluding the date on which interest is actually paid.
"Auction Rate Notes" shall mean, collectively, the Class B-1 Notes and the Class B-2 Notes.
"Auction Rate Notes Carry-over Amount" shall have the meaning ascribed to such term in Appendix B hereto.
"Authorized Denominations" shall mean (a) with respect to each Class of the Reset Rate Notes, $100,000 and any integral multiple of $1,000 in excess thereof, and (b) with respect to the Auction Rate Notes, $50,000 and any integral multiple thereof.
"Authorized Officer" shall mean, when used with reference to the Issuer, its Chairman, President, any Vice President or Secretary, or any other officer or board member authorized in writing by the Board of Directors to act on behalf of the Issuer.
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Exhibit 4.11
"Authorized Representative" shall mean, when used with reference to the Issuer, (a) an Authorized Officer, (b) the Administrator or (c) any officer or board member of any affiliate organization or other entity authorized by the Board of Directors to act on the Issuer's behalf.
"Board of Directors" shall mean the Board of Directors of the Issuer.
"Business Day" shall have the meanings ascribed to such term in Appendices A and B hereto.
"Certificate of Insurance" shall mean any certificate evidencing a Financed Eligible Loan is Insured pursuant to a Contract of Insurance.
"Class" shall mean, (a) with the respect to the Reset Rate Notes, any or all of the Class A-1A Notes, the Class A-1B Notes, the Class A-2 Notes and the Class A-3 Notes and (b) with the respect to the Auction Rate Notes, either or both of the Class B-1 Notes and the Class B-2 Notes.
"Class A Notes" shall mean, collectively, the Class A-1A Notes, the Class A-1B Notes, the Class A-2 Notes and the Class A-3 Notes.
"Class A-1A Interest Account" shall mean the Account by that name created by Section 5.01(d) hereof within the Note Payment Fund and further described in Section 5.05 hereof, including any Subaccounts created therein.
"Class A-1A Notes" shall mean the $267,700,000 Nelnet Education Loan Funding, Inc., Student Loan Asset-Backed Notes, Senior Class 2004A-1A Reset Rate Notes.
"Class A-1A Notes Interest Distribution Amount" shall mean, for each Quarterly Distribution Date, the sum of (a) the amount of interest accrued at the Class A-1A Notes Interest Rate for the related Accrual Period on the Outstanding Amount of the Class A-1A Notes immediately prior to such Quarterly Distribution Date; and (b) the Class A-1A Notes Interest Shortfall for such Quarterly Distribution Date, as based on the appropriate Day Count Basis and rounding the resultant figure to the fifth decimal place, as determined by the Administrator.
"Class A-1A Notes Interest Shortfall" shall mean, with respect to any Quarterly Distribution Date, the excess, if any, of (a) the Class A-1A Notes Interest Distribution Amount on the immediately preceding Quarterly Distribution Date over (b) the amount of interest actually distributed to the Registered Owners of the Class A-1A Notes on such preceding Quarterly Distribution Date, plus interest on the amount of such excess interest due to the Registered Owners of the Class A-1A Notes, to the extent permitted by law, at the interest rate borne by the Class A-1A Notes from such immediately preceding Quarterly Distribution Date to the current Quarterly Distribution Date, as determined by the Administrator.
"Class A-1A Redemption Account" shall mean the Account by that name created by Section 5.01(d) hereof within the Note Payment Fund and further described in Section 5.05 hereof, including any Subaccounts created therein.
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Exhibit 4.11
"Class A-1A Supplemental Interest Account" shall mean the Account by that name created by Section 5.01(g) hereof within the Supplemental Interest Fund and further described in Section 5.08 hereof, including any Subaccounts created therein.
"Class A-1B Interest Account" shall mean the Account by that name created by Section 5.01(d) hereof within the Note Payment Fund and further described in Section 5.05 hereof, including any Subaccounts created therein.
"Class A-1B Notes" shall mean the $210,000,000 Nelnet Education Loan Funding, Inc., Student Loan Asset-Backed Notes, Senior Class 2004A-1B Reset Rate Notes.
"Class A-1B Notes Interest Distribution Amount" shall mean, for each Quarterly Distribution Date, the sum of (a) the amount of interest accrued at the Class A-1B Notes Interest Rate for the related Accrual Period on the Outstanding Amount of the Class A-1B Notes immediately prior to such Quarterly Distribution Date; and (b) the Class A-1B Notes Interest Shortfall for such Quarterly Distribution Date, as based on the appropriate Day Count Basis and rounding the resultant figure to the fifth decimal place, as determined by the Administrator.
"Class A-1B Notes Interest Shortfall" shall mean, with respect to any Quarterly Distribution Date, the excess, if any, of (a) the Class A-1B Notes Interest Distribution Amount on the immediately preceding Quarterly Distribution Date over (b) the amount of interest actually distributed to the Registered Owners of the Class A-1B Notes on such preceding Quarterly Distribution Date, plus interest on the amount of such excess interest due to the Registered Owners of the Class A-1B Notes, to the extent permitted by law, at the interest rate borne by the Class A-1B Notes from such immediately preceding Quarterly Distribution Date to the current Quarterly Distribution Date, as determined by the Administrator.
"Class A-1B Redemption Account" shall mean the Account by that name created by Section 5.01(d) hereof within the Note Payment Fund and further described in Section 5.05 hereof, including any Subaccounts created therein.
"Class A-1B Supplemental Interest Account" shall mean the Account by that name created by Section 5.01(g) hereof within the Supplemental Interest Fund and further described in Section 5.08 hereof, including any Subaccounts created therein.
"Class A-2 Interest Account" shall mean the Account by that name created by Section 5.01(d) hereof within the Note Payment Fund and further described in Section 5.05 hereof, including any Subaccounts created therein.
"Class A-2 Notes" shall mean the $372,000,000 Nelnet Education Loan Funding, Inc., Student Loan Asset-Backed Notes, Senior Class 2004A-2 Reset Rate Notes.
"Class A-2 Notes Interest Distribution Amount" shall mean, for each Quarterly Distribution Date, the sum of (a) the amount of interest accrued at the Class A-2 Notes Interest Rate for the related Accrual Period on the aggregate outstanding principal balance of the Class A-2 Notes immediately prior to such Quarterly Distribution Date; and (b) the Class A-2 Notes Interest Shortfall for such Quarterly Distribution Date, as based on the appropriate Day
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Exhibit 4.11
Count Basis and rounding the resultant figure to the fifth decimal place, as determined by the Administrator.
"Class A-2 Notes Interest Shortfall" shall mean, with respect to any Quarterly Distribution Date, the excess, if any, of (a) the Class A-2 Notes Interest Distribution Amount on the immediately preceding Quarterly Distribution Date over (b) the amount of interest actually distributed to the Registered Owners of the Class A-2 Notes on such preceding Quarterly Distribution Date, plus interest on the amount of such excess interest due to the Registered Owners of the Class A-2 Notes, to the extent permitted by law, at the interest rate borne by the Class A-2 Notes from such immediately preceding Quarterly Distribution Date to the current Quarterly Distribution Date, as determined by the Administrator.
"Class A-2 Redemption Account" shall mean the Account by that name created by Section 5.01(d) hereof within the Note Payment Fund and further described in Section 5.05 hereof, including any Subaccounts created therein.
"Class A-2 Supplemental Interest Account" shall mean the Account by that name created by Section 5.01(g) hereof within the Supplemental Interest Fund and further described in Section 5.08 hereof, including any Subaccounts created therein.
"Class A-3 Interest Account" shall mean the Account by that name created by Section 5.01(d) hereof within the Note Payment Fund and further described in Section 5.05 hereof, including any Subaccounts created therein.
"Class A-3 Notes" shall mean the $130,000,000 Nelnet Education Loan Funding, Inc., Student Loan Asset-Backed Notes, Senior Class 2004A-3 Reset Rate Notes.
"Class A-3 Notes Interest Distribution Amount" shall mean, for each Quarterly Distribution Date, the sum of (a) the amount of interest accrued at the Class A-3 Notes Interest Rate for the related Accrual Period on the aggregate outstanding principal balance of the Class A-3 Notes immediately prior to such Quarterly Distribution Date; and (b) the Class A-3 Notes Interest Shortfall for such Quarterly Distribution Date, as based on the appropriate Day Count Basis and rounding the resultant figure to the fifth decimal place, as determined by the Administrator.
"Class A-3 Notes Interest Shortfall" shall mean, with respect to any Quarterly Distribution Date, the excess, if any, of (a) the Class A-3 Notes Interest Distribution Amount on the immediately preceding Quarterly Distribution Date over (b) the amount of interest actually distributed to the Registered Owners of the Class A-3 Notes on such preceding Quarterly Distribution Date, plus interest on the amount of such excess interest due to the Registered Owners of the Class A-3 Notes, to the extent permitted by law, at the interest rate borne by the Class A-3 Notes from such immediately preceding Quarterly Distribution Date to the current Quarterly Distribution Date, as determined by the Administrator.
"Class A-3 Redemption Account" shall mean the Account by that name created by Section 5.01(d) hereof within the Note Payment Fund and further described in Section 5.05 hereof, including any Subaccounts created therein.
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Exhibit 4.11
"Class A-3 Supplemental Interest Account" shall mean the Account by that name created by Section 5.01(g) hereof within the Supplemental Interest Fund and further described in Section 5.08 hereof, including any Subaccounts created therein.
"Class B Notes" shall mean, collectively, the Class B-1 Notes and the Class B-2 Notes.
"Class B Supplemental Reserve Fund" shall mean the Fund by that name created in Section 5.01(b) hereof and further described in Section 5.03 hereof, including any Accounts and Subaccounts created therein.
"Class B Supplemental Reserve Fund Requirement" shall mean an amount equal to 90 days' interest on the Outstanding Amount of the Class B Notes calculated at the highest then current interest rate on either Class of the Class B Notes.
"Class B-1 Interest Account" shall mean the Account by that name created by Section 5.01(d) hereof within the Note Payment Fund and further described in Section 5.05 hereof, including any Subaccounts created therein.
"Class B-1 Notes" shall mean the $15,150,000 Nelnet Education Loan Funding, Inc., Student Loan Asset-Backed Notes, Subordinate Class 2004B-1 Auction Rate Notes.
"Class B-1 Notes Interest Distribution Amount" shall mean, for each Auction Rate Distribution Date for the Class B-1 Notes, the sum of (a) the amount of interest accrued at the Class B-1 Notes Interest Rate for the related Accrual Period on the Outstanding Amount of the Class B-1 Notes immediately prior to such Auction Rate Distribution Date for the Class B-1 Notes; and (b) the Class B-1 Notes Interest Shortfall for such Auction Rate Distribution Date for the Class B-1 Notes, as based on the actual number of days in such Accrual Period divided by 360 and rounding the resultant figure to the fifth decimal place, as determined by the Administrator.
"Class B-1 Notes Interest Shortfall" shall mean, with respect to any Auction Rate Distribution Date for the Class B-1 Notes, the excess, if any, of
(a) the Class B-1 Notes Interest Distribution Amount on the immediately preceding Auction Rate Distribution Date for the Class B-1 Notes over (b) the amount of interest actually distributed to the Registered Owners of the Class B-1 Notes on such preceding Auction Rate Distribution Date for the Class B-1 Notes, plus interest on the amount of such excess interest due to the Registered Owners of the Class B-1 Notes, to the extent permitted by law, at the interest rate borne by the Class B-1 Notes from such immediately preceding Auction Rate Distribution Date for the Class B-1 Notes to the current Auction Rate Distribution Date for the Class B-1 Notes, as determined by the Administrator.
"Class B-1 Redemption Account" shall mean the Account by that name created by Section 5.01(d) hereof within the Note Payment Fund and further described in Section 5.05 hereof, including any Subaccounts created therein.
"Class B-2 Interest Account" shall mean the Account by that name created by Section 5.01(d) hereof within the Note Payment Fund and further described in Section 5.05 hereof, including any Subaccounts created therein.
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Exhibit 4.11
"Class B-2 Notes" shall mean the $15,150,000 Nelnet Education Loan Funding, Inc., Student Loan Asset-Backed Notes, Subordinate Class 2004B-2 Auction Rate Notes.
"Class B-2 Notes Interest Distribution Amount" shall mean, for each Auction Rate Distribution Date for the Class B-2 Notes, the sum of (a) the amount of interest accrued at the Class B-2 Notes Interest Rate for the related Accrual Period on the Outstanding Amount of the Class B-2 Notes immediately prior to such Auction Rate Distribution Date for the Class B-2 Notes; and (b) the Class B-2 Notes Interest Shortfall for such Auction Rate Distribution Date for the Class B-2 Notes, as based on the actual number of days in such Accrual Period divided by 360 and rounding the resultant figure to the fifth decimal place, as determined by the Administrator.
"Class B-2 Notes Interest Shortfall" shall mean, with respect to any Auction Rate Distribution Date for the Class B-2 Notes, the excess, if any, of
(a) the Class B-2 Notes Interest Distribution Amount on the immediately preceding Auction Rate Distribution Date for the Class B-2 Notes over (b) the amount of interest actually distributed to the Registered Owners of the Class B-2 Notes on such preceding Auction Rate Distribution Date for the Class B-2 Notes, plus interest on the amount of such excess interest due to the Registered Owners of the Class B-2 Notes, to the extent permitted by law, at the interest rate borne by the Class B-2 Notes from such immediately preceding Auction Rate Distribution Date for the Class B-2 Notes to the current Auction Rate Distribution Date for the Class B-2 Notes, as determined by the Administrator.
"Class B-2 Redemption Account" shall mean the Account by that name created by Section 5.01(d) hereof within the Note Payment Fund and further described in Section 5.05 hereof, including any Subaccounts created therein.
"Clearstream" shall mean Clearstream Banking, societe anonyme or its successor in interest.
"Closing Date" shall mean January 30, 2004, the date of initial issuance and delivery of the Series 2004-1 Notes hereunder.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to time. Each reference to a section of the Code herein shall be deemed to include the United States Treasury Regulations, including applicable temporary and proposed regulations relating to such section which are applicable to the Series 2004-1 Notes or the use of the proceeds thereof. A reference to any specific section of the Code shall be deemed also to be a reference to the comparable provisions of any enactment which supersedes or replaces the Code thereunder from time to time.
"Collection Fund" shall mean the Fund by that name created in Section 5.01(c) hereof and further described in Section 5.04 hereof, including any Accounts and Subaccounts created therein.
"Commercial Paper Rate Trigger" shall mean as of the last day of any calendar quarter the average daily 90-Day Financial Commercial Paper Rate for such calendar quarter exceeded 6.80% per annum.
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Exhibit 4.11
"Commission" shall mean the Securities and Exchange Commission.
"Consolidation Fee" shall mean any federal origination fee, monthly rebate fee or similar fee payable to the Department of Education relating to the origination or ownership of Consolidation Loans.
"Consolidation Loan" shall mean an Eligible Loan made pursuant to
Section 428C of the Higher Education Act to consolidate the borrower's obligations under various federally authorized student loan programs into a single loan, as supplemented by the addition of any related Add-on Consolidation Loan.
"Contract of Insurance" shall mean the contract of insurance between the Eligible Lender and the Secretary.
"Counterparty" shall mean any counterparty under a Derivative Product.
"Counterparty Payment Account" shall mean each Account by that name established for a Derivative Product pursuant to Section 5.01(d) hereof within the Note Payment Fund for the payment of Issuer Derivative Payments and further described in Section 5.05 hereof, including any Subaccounts created therein.
"Counterparty Payments" shall mean any payment to be made to, or for the benefit of, the Issuer under a Derivative Product.
"Custodian Agreement" shall mean the Custodian Agreement, dated as of January 1, 2004, among the Issuer, the Eligible Lender Trustee, the Indenture Trustee and Nelnet, Inc., as custodian, and any other custodian agreements with any Servicer, subservicer or other custodian or bailee related to Financed Eligible Loans, each as amended and supplemented pursuant to the terms and provisions thereof.
"Definitive Certificates" shall mean definitive, fully registered certificates evidencing the Series 2004-1 Notes which are not registered in the name of the nominee of a Securities Depository.
"Department of Education" shall mean the United Stated Department of Education, or any successor thereto.
"Derivative Product" shall mean a written contract or agreement between the Issuer and a Counterparty entered into pursuant to Section 3.03 hereof for any interest rate swap, cap, floor, collar or other investment contract, including the Interest Rate Cap Derivative Agreement.
"Derivative Product Distribution Date" shall mean, with respect to a Derivative Product, any date specified in such Derivative Product on which an Issuer Derivative Payment is due and payable under such Derivative Product.
"Derivative Value" shall mean the value of the Derivative Product, if any, to the Counterparty; provided that such value is defined and calculated in substantially the same
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Exhibit 4.11
manner as amounts are defined and calculated pursuant to the applicable provisions of an ISDA Master Agreement.
"Dissolution" shall mean, with respect to Article XI hereof and the Issuer, the occurrence of any of the events which would cause a dissolution of a limited partnership organized under the laws of the State of Delaware, the sole general partner of which is the Issuer.
"Distribution Date" shall mean (i) each Quarterly Distribution Date,
(ii) each Auction Rate Distribution Date and (iii) each Derivative Product Distribution Date.
"DTC" shall mean The Depository Trust Company or its successors in interest.
"Early Amortization Event" shall mean (a) an Event of Default or a Servicer default under its Servicing Agreement; (b) an Event of Bankruptcy occurring with respect to a Seller; (c) that the Issuer becomes subject to registration as an "Investment Company" under the Investment Company Act of 1940, as amended; (d) the Commercial Paper Rate Trigger has occurred; (e) July 1, 2006, unless a Rating Confirmation has been obtained permitting the Financing of Eligible Loans subsequent to July 1, 2006; (f) the Issuer determines, in an Issuer Order, there is a change in law that adversely affects the economic attributes of Consolidation Loans; (g) the Issuer determines, in an Issuer Order, that it cannot originate additional Consolidation Loans on commercially reasonable terms or (h) the failure to obtain a Rating Confirmation from the Rating Agencies then rating the Series 2004-1 Notes upon any change in law, or interpretation of the current law, relating to Special Allowance Payments paid pursuant to Section 438(b)(i) and (ii) of the Higher Education Act.
"Eligible Lender" shall mean any "eligible lender," as defined in the Higher Education Act, and which has received an eligible lender designation from the Secretary with respect to Eligible Loans made under the Higher Education Act.
"Eligible Lender Trustee" shall mean Wells Fargo Bank Minnesota, National Association, a national banking association, not in its individual capacity but solely as Eligible Lender Trustee hereunder and under the Eligible Lender Trust Agreement, or its successors and assigns.
"Eligible Lender Trustee Fee" shall mean the annual compensation to the Eligible Lender Trustee for acting as eligible lender trustee hereunder and under the Eligible Lender Trust Agreement. So long as the Indenture Trustee is acting as Eligible Lender Trustee hereunder and under the Eligible Lender Trust Agreement, there shall be no Eligible Lender Trustee Fee.
"Eligible Lender Trust Agreement" shall mean the Eligible Lender Trust Agreement, dated as of January 1, 2004, between the Issuer and the Eligible Lender Trustee, as amended and supplemented pursuant to the terms and provisions thereof.
"Eligible Loan" shall mean any loan made to finance post-secondary education that (a)(i) is made to an eligible borrower in compliance with the requirements of the Higher Education Act (including Consolidation Loans and Add-on Consolidation Loans), (ii) is guaranteed by a Guarantee Agency or Insured by the Secretary, (iii) bears interest at not less than the maximum applicable rate of interest permitted by the Higher Education Act at the time
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Exhibit 4.11
originated, or any lesser rate of interest shown in the cash flow analyses provided to each Rating Agency on the Closing Date; provided that such rate of interest may be reduced if Rating Confirmation is obtained, based on new cash flow analyses containing such assumptions as the Issuer shall reasonably determine, and (iv) is eligible for Special Allowance Payments; or (b) is insured by the Secretary of Health and Human Services pursuant to the Public Health Services Act; provided, however, that if after any reauthorization or amendment of the Higher Education Act loans authorized thereunder, including, without limitation, their benefits, any provisions, or the servicing thereof, are materially different from loans authorized prior to such reauthorization or amendment, such loans shall not constitute Eligible Loans unless a Rating Confirmation is obtained.
"Eligible Loan Acquisition Certificate" shall mean a certificate signed by an Authorized Representative of the Issuer in substantially the form attached as Exhibit H hereto.
"Ending Balance Factor" shall mean, for any given day, the number calculated by dividing the unpaid principal balance of the appropriate Class of the Outstanding Class A Notes (after any Principal Reduction Payments are made thereto) by the original principal balance of such Class of the Class A Notes, and rounding the result to nine decimal places.
"Escrow Reserve Agreement" shall mean the Escrow Reserve Agreement, dated as of January 1, 2004, between the Issuer and Wells Fargo Bank Minnesota, National Association, as escrow agent, as amended and supplemented pursuant to the terms and provisions thereof.
"Euroclear" shall mean The Euroclear System or its successor in interest.
"Event of Bankruptcy" shall mean, with respect to any Person (a) such Person shall have commenced a voluntary case or other proceeding seeking liquidation, reorganization, or other relief with respect to itself or its debts under any bankruptcy, insolvency, or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian, or other similar official of it or any substantial part of its property, or shall have made a general assignment for the benefit of creditors, or shall have declared a moratorium with respect to its debts or shall have failed generally to pay its debts as they become due, or shall have taken any action to authorize any of the foregoing; or (b) an involuntary case or other proceeding shall have been commenced against such Person seeking liquidation, reorganization, or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian, or other similar official of it or any substantial part of its property provided such action or proceeding is not dismissed within 60 days.
"Event of Default" shall have the meaning specified in Article VI hereof.
"Financed" or "Financing" when used with respect to Eligible Loans, shall mean or refer to Eligible Loans (a) financed by the Issuer with balances in the Acquisition Fund or otherwise deposited in or accounted for in the Acquisition Fund or otherwise constituting a part of the Trust Estate and (b) Eligible Loans substituted or exchanged for Financed Eligible Loans, but does not include Eligible Loans released from the lien of this Indenture and sold or transferred, to the extent permitted by this Indenture.
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Exhibit 4.11
"Fiscal Year" shall mean the fiscal year of the Issuer ending December 31, or as otherwise established from time to time.
"Fitch" shall mean Fitch, Inc., also known as Fitch Ratings, a corporation organized and existing under the laws of the State of Delaware, its successors and assigns.
"Funds" shall mean each of the Funds created pursuant to Section 5.01 hereof.
"Global Certificate" shall mean any Series 2004-1 Note registered in the name of a Securities Depository or its nominee. Each Rule 144A Certificate or Regulation S Certificate shall constitute a "Global Certificate."
"Guarantee" or "Guaranteed" shall mean, with respect to an Eligible Loan, the insurance or guarantee by a Guaranty Agency pursuant to such Guaranty Agency's Guarantee Agreement of the maximum percentage of the principal of and accrued interest on such Eligible Loan allowed by the terms of the Higher Education Act with respect to such Eligible Loan at the time it was originated and the coverage of such Eligible Loan by the federal reimbursement contracts, providing, among other things, for reimbursement to a Guaranty Agency for payments made by it on defaulted Eligible Loans insured or guaranteed by a Guaranty Agency of at least the minimum reimbursement allowed by the Higher Education Act with respect to a particular Eligible Loan.
"Guarantee Agreements" shall mean a guaranty or lender agreement between the Indenture Trustee or the Eligible Lender Trustee and any Guaranty Agency, and any amendments thereto.
"Guaranty Agency" shall mean any entity authorized to guarantee student loans under the Higher Education Act and with which the Indenture Trustee and the Eligible Lender Trustee maintains a Guarantee Agreement.
"Higher Education Act" shall mean the Higher Education Act of 1965, as amended or supplemented from time to time, or any successor federal act and all regulations, directives, bulletins, and guidelines promulgated from time to time thereunder.
"Highest Priority Obligations" shall mean (a) at any time when Senior Obligations are Outstanding, the Senior Obligations and (b) at any time when no Senior Obligations are Outstanding, the Subordinate Obligations.
"Indenture" shall mean this Indenture of Trust, including all supplements and amendments hereto.
"Indenture Trustee" shall mean Wells Fargo Bank Minnesota, National Association, acting in its capacity as Indenture Trustee under this Indenture, or any successor trustee designated pursuant to this Indenture.
"Indenture Trustee Fee" shall mean an amount equal to the annual amount set in the Trustee Fee Letter dated January 20, 2004. Such fee shall be in satisfaction of the Indenture
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Exhibit 4.11
Trustee's compensation as trustee hereunder and as eligible lender trustee hereunder and under the Eligible Lender Trust Agreement.
"Initial Purchasers" shall mean, collectively, Credit Suisse First Boston LLC and Deutsche Bank Securities Inc.
"Insurance" or "Insured" or "Insuring" shall mean, with respect to an Eligible Loan, the insuring by the Secretary (as evidenced by a Certificate of Insurance or other document or certification issued under the provisions of the Higher Education Act) under the Higher Education Act of 100% of the principal of and accrued interest on such Eligible Loan.
"Interest Benefit Payment" shall mean an interest payment on Eligible Loans received pursuant to the Higher Education Act and an agreement with the federal government, or any similar payments.
"Interest Rate Cap Derivative Agreement" shall mean the ISDA Master Agreement, Schedule and Confirmation, each dated January 30, 2004, between the Issuer and Credit Suisse First Boston International, as amended and supplemented pursuant to the terms and provisions thereof, which Interest Rate Cap Derivative Agreement shall constitute a Derivative Agreement hereunder.
"Investment Agreement" shall mean, collectively, (a) the Investment Agreement, dated January 30, 2004, between the Indenture Trustee and Trinity Plus Funding Company, LLC, (b) the Investment Agreement, dated January 30, 2004, between the Indenture Trustee and FSA Capital Management Services, Inc., and acknowledged by the Issuer and (c) any other investment agreement approved by the Rating Agencies, each as amended and supplemented pursuant to the terms and provisions thereof.
"Investment Securities" shall mean book-entry securities, negotiable instruments or securities represented by instruments in bearer or registered form, all purchased at a price not in excess of par, which evidence:
(a) direct obligations of, and obligations fully guaranteed as to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of any depository institution or trust company incorporated under the laws of the United States of America or any State (or any domestic branch of a foreign bank) and subject to supervision and examination by federal or state banking or depository institution authorities (including depository receipts issued by any such institution or trust company as custodian with respect to any obligation referred to in paragraph (a) above or portion of such obligation for the benefit of the holders of such depository receipts); provided, however, that at the time of the investment therein (which shall be deemed to be made again each time funds are reinvested following each Distribution Date), the commercial paper or other short-term senior unsecured debt obligations (other than such obligations the rating of which is based on the credit of a Person other than such depository institution or trust company) thereof shall have a credit rating from each of the Rating Agencies in the highest investment category granted thereby;
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Exhibit 4.11
(c) commercial paper and auction rate securities having, at the time of the investment or contractual commitment to invest therein, a rating from each of the Rating Agencies in the highest investment category granted thereby;
(d) investments in money market funds having a rating from each of the Rating Agencies rating such fund, in the highest investment category granted thereby provided at least Moody's has rated such fund (including funds for which the Indenture Trustee, a Servicer or the Eligible Lender Trustee or any of their respective affiliates is investment manager or advisor); provided, however, that such Fitch rating shall be "AA/F1+" or higher for any money market fund which has the ability to maintain a stable one-dollar net asset value per share and whose shares are freely transferable on a daily basis;
(e) bankers' acceptances issued by any depository institution or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a direct obligation of, or fully guaranteed by, the United States of America or any agency or instrumentality thereof the obligations of which are backed by the full faith and credit of the United States of America, in either case entered into with a depository institution or trust company (acting as principal) described in clause (b) above;
(g) any Investment Agreement; and
(h) any other investment permitted by each of the Rating Agencies as evidenced by a Rating Confirmation delivered to the Indenture Trustee.
Notwithstanding the foregoing, for purposes of clauses (b), (c), (e) and (f) above, the provider must have a Moody's long term rating of "Aaa" if the investment is longer than 6 months, "Aa3" if the investment is between 90 and 180 days, and "A1" if the investment is between 30 and 90 days. No obligation will be considered to be rated in the highest investment category if it has an "r" highlighter affixed to its rating.
"ISDA Master Agreement" shall mean the ISDA Interest Rate and Currency Exchange Agreement, copyright 1992, as amended from time to time, and as in effect with respect to any Derivative Product.
"Issuer" shall mean Nelnet Education Loan Funding, Inc., a corporation organized and existing under the laws of the State, and any successor thereto.
"Issuer Order" shall mean a written order signed in the name of the Issuer by an Authorized Representative.
"Issuer Derivative Payment" shall mean a payment required to be made by or on behalf of the Issuer due to a Counterparty pursuant to a Derivative Product (including Priority Termination Payments, but excluding other Termination Payments).
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Exhibit 4.11
"Liquidated Financed Eligible Loan" shall mean any defaulted Financed Eligible Loan liquidated by a Servicer (which shall not include any Financed Eligible Loan on which payments are received from a Guaranty Agency) or which a Servicer has, after using all reasonable efforts to realize upon such Financed Eligible Loan, determined to charge off.
"Liquidation Proceeds" shall mean, with respect to any Liquidated Financed Eligible Loan which became a Liquidated Financed Eligible Loan during the current calendar quarter in accordance with a Servicer's customary servicing procedures, the moneys collected in respect of the liquidation thereof from whatever source, other than moneys collected with respect to any Liquidated Financed Eligible Loan which was written off in prior calendar quarters or during the current calendar quarter, net of the sum of any amounts expended by a Servicer in connection with such liquidation and any amounts required by law to be remitted to the obligor on such Liquidated Financed Eligible Loan.
"Make-whole Premium" shall mean, with respect to a Class of the Reset Rate Notes other than the Class A-1B Notes and the Class A-3 Notes, (a) during each Initial Reset Period an amount equal to the product of (i) the spread over LIBOR applicable to such Class of the Reset Rate Notes, (ii) the aggregate Outstanding Amount of such Class of the Reset Rate Notes and (iii) the number of days until the first Reset Date for that Class of the Reset Rate Notes, divided by 360 and (b) during any subsequent Reset Period, the prepayment premium established by the Remarketing Agent with respect to such Class of the Reset Rate Notes in connection with the remarketing of such Class of the Reset Rate Notes and set forth in the Remarketing Terms Notice. There shall be no Make-whole Premium during the Initial Reset Periods for the Class A-1B Notes or the Class A-3 Notes.
"Master Promissory Note" shall mean a note (a) that evidences one or more loans made to finance post-secondary education financing and (b) that is in the form mandated by Section 432(m)(1) of the Higher Education Act, as added by Public Law No: 105-244, ss. 427, 112 Stat. 1702 (1998), as amended by Public Law No: 106-554 (enacted December 21, 2000) and as codified in 20 U.S.C. ss. 1082(m)(1).
"Maturity" when used with respect to any Series 2004-1 Note, shall mean the date on which the principal thereof becomes due and payable as therein or herein provided, whether at its Stated Maturity, by earlier redemption, by declaration of acceleration, or otherwise.
"Monthly Servicing Payment Date" shall mean the twenty-fifth day of each calendar month or, if such day is not a Business Day, the immediately following Business Day, commencing on February 25, 2004.
"Moody's" shall mean Moody's Investors Service, its successors and assigns.
"90-Day Financial Commercial Paper Rate" shall mean the 90-Day AA Financial Commercial Paper rate posted on the Federal Reserve Release entitled "Commercial Paper Rates and Outstandings," which rate may be available on the Internet at www.federalreserve.gov/releases/cp.
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Exhibit 4.11
"Non-amortizing Reset Rate Notes" shall mean any Class of the Reset Rate Notes on which Principal Reduction Payments on that Class of the Reset Rate Notes are to be paid only on the Business Day succeeding its current Reset Period.
"Non-U.S. Person" shall mean a Person who is not a U.S. Person, as defined in Regulation S.
"Note Counsel" shall mean Kutak Rock LLP or any other nationally recognized law firm which is requested to deliver its approving opinion with respect to the Series 2004-1 Notes.
"Note Payment Fund" shall mean the Fund by that name created in Section 5.01(d) hereof and further described in Section 5.05 hereof, including any Accounts and Subaccounts created therein.
"Obligations" shall mean, collectively, the Senior Obligations and the Subordinate Obligations.
"Outstanding" shall mean (a) when used in connection with any Series 2004-1 Note, a Series 2004-1 Note which has been executed and delivered pursuant to this Indenture which at such time remains unpaid as to principal or interest, unless provision has been made for such payment pursuant to Section 10.02 hereof, excluding Series 2004-1 Notes which have been replaced pursuant to
Section 2.03 hereof, and (b) when used in connection with a Derivative Product, a Derivative Product which has not expired or been terminated, unless provision has been made for such payment pursuant to Section 10.02 hereof.
"Outstanding Amount" shall mean the aggregate principal amount of all Series 2004-1 Notes Outstanding at the date of determination or, if the context so requires, the aggregate principal amount of one or more Classes of the Class A Notes or Class B Notes Outstanding at the date of determination.
"Person" shall mean an individual, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, unincorporated organization, or government or agency or political subdivision thereof.
"Principal Office" shall mean the principal office of the party indicated, as set forth in Section 9.01 hereof or elsewhere in this Indenture.
"Principal Reduction Payments" shall mean principal payments made prior to a Stated Maturity from the Note Payment Fund on the Class A Notes which reduce the principal balance of each Class A Note on a pro rata basis.
"Priority Termination Payment" shall mean, with respect to a Derivative Product, any termination payment payable by or on behalf of the Issuer under such Derivative Product relating to an early termination of such Derivative Product by the Counterparty, as the non-defaulting party, following (i) the failure of the Issuer to make an Issuer Derivative Payment when due (after any applicable grace periods), but only if the Issuer had sufficient moneys on deposit in the Collection Fund (after giving effect to any required transfers thereto) as of the due date of such Issuer Derivative Payment, (ii) the occurrence of an Event of Default specified in Section 6.01(f)
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Exhibit 4.11
hereof, (iii) the Indenture Trustee's taking any action hereunder to liquidate the entire Trust Estate following an Event of Default and acceleration of the Series 2004-1 Notes pursuant to Section 6.09 hereof or (iv) any other termination payments permitted by the Rating Agencies with a Rating Confirmation.
"Program" shall mean the Issuer's program for the origination and the purchase of Eligible Loans, as the same may be modified from time to time.
"Program Expenses" shall mean (a) the fees and expenses of the Indenture Trustee and the Eligible Lender Trustee; (b) the fees and expenses of the Auction Agent and any Broker-Dealer; (c) the fees and expenses of any Remarketing Agent; (d) the fees and expenses due to any credit provider of the Series 2004-1 Notes for which a credit facility or liquidity facility is in place; (e) the fees of any Servicer and/or custodian under any Servicing Agreement or Custodian Agreement; (f) the fees and expenses of any Administrator and the Issuer incurred in connection with the preparation of legal opinions and other authorized reports or statements attributable to the Series 2004-1 Notes and the Financed Eligible Loans; (g) transfer fees, loan origination fees, Consolidation Fees and all other fees due to the Department of Education on Financed Eligible Loans; (h) fees and expenses associated with the delivery of a credit facility or liquidity facility; (i) fees and expenses associated with (but not payments under) Derivative Products; (j) the costs of remarketing any of the Series 2004-1 Notes and (k) expenses incurred for the Issuer's maintenance and operation of its Program as a direct consequence of this Indenture, the Series 2004-1 Notes or the Financed Eligible Loans; including, but not limited to, taxes, the reasonable fees and expenses of attorneys, agents, financial advisors, consultants, accountants and other professionals, attributable to such maintenance and operation, marketing expenses for the Program and a prorated portion of the rent, personnel compensation, office supplies and equipment, travel expenses and other lawful payments made to members of the Board of Directors.
"Qualified Institutional Buyer" shall mean a "qualified institutional buyer" within the meaning of Rule 144A.
"Quarterly Distribution Date" shall mean the twenty-fifth (25th) day of each February, May, August and November, commencing on August 25, 2004, or, if such day is not a Business Day, the immediately following Business Day.
"Quarterly Funding Amount" shall mean, for each Class of the Reset Rate Notes for any Quarterly Distribution Date (a)(i) the Reset Period Target Amount for that Class and that Quarterly Distribution Date, minus (ii) the amount on deposit in the Remarketing Fee Fund in respect of that Class immediately prior to that Quarterly Distribution Date; divided by (b) the number of Quarterly Distribution Dates from and excluding that Quarterly Distribution Date through and including the next Reset Date for that Class.
"Rating" shall mean one of the rating categories of Fitch, Moody's and S&P or any other Rating Agency, provided Fitch, Moody's and S&P or any other Rating Agency, as the case may be, is currently rating the Series 2004-1 Notes.
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Exhibit 4.11
"Rating Agency" shall mean, collectively, Fitch, Moody's and S&P and their successors and assigns or any other Rating Agency; provided that in each such case the Issuer has requested such Rating Agency to maintain a Rating on any of the Series 2004-1 Notes. If no such organization or successor is any longer in existence, "Rating Agency" shall be a nationally recognized statistical rating organization or other comparable Person designated by the Issuer, notice of which designation shall be given to the Indenture Trustee.
"Rating Agency Condition" shall mean, with respect to any action, that each Rating Agency shall have been given prior notice thereof and that each of the Rating Agencies shall have issued a Rating Confirmation.
"Rating Confirmation" shall mean a letter from each Rating Agency then providing a Rating for any of the Series 2004-1 Notes at the request of the Issuer, confirming that the action proposed to be taken by the Issuer will not, in and of itself, result in a downgrade of any of the Ratings then applicable to the Series 2004-1 Notes, or cause any Rating Agency to suspend or withdraw the Ratings then applicable to the Series 2004-1 Notes.
"Realized Loss" shall mean the excess of the principal balance (including any interest that had been or had been expected to be capitalized) of any Liquidated Financed Eligible Loan over Liquidation Proceeds with respect to such Financed Eligible Loan to the extent allocable to principal (including any interest that had been or had been expected to be capitalized).
"Record Date" shall mean (a) with respect to the Reset Rate Notes, the close of business on the Business Day preceding each Distribution Date or Redemption Date and (b) with respect to the Auction Rate Notes, the Business Day next preceding the applicable Auction Rate Distribution Date.
"Recoveries of Principal" shall mean all amounts received by the Indenture Trustee from or on account of any Financed Eligible Loan as a recovery of the principal amount thereof, including scheduled, delinquent and advance payments, payouts or prepayments, proceeds from insurance or from the sale, assignment, transfer, reallocation or other disposition of a Financed Eligible Loan and any payments representing such principal from the guarantee or insurance of any Financed Eligible Loan, net of accrued interest which will be capitalized at a later date.
"Redemption Accounts" shall mean one or more of the Class A-1A Redemption Account, the Class A-1B Redemption Account, the Class A-2 Redemption Account, the Class A-3 Redemption Account, the Class B-1 Redemption Account and the Class B-2 Redemption Account, as the context requires.
"Registered Owner" shall mean the Person in whose name a Series 2004-1 Note is registered on the Series 2004-1 Note registration books maintained by the Indenture Trustee, and shall also mean with respect to a Derivative Product, any Counterparty, unless the context otherwise requires. All references herein to "Registered Owner" shall reflect the rights of beneficial owners of the Series 2004-1 Notes as they may indirectly exercise such rights through a Securities Depository and its Agent Members, except as otherwise specified herein; provided, however, that the parties hereto shall be required to recognize as a "Registered Owner" only the
19
Exhibit 4.11
Person in whose name a Series 2004-1 Note is registered in the registration books of the Indenture Trustee.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Certificate" shall have the meaning ascribed to such term in Section 2.01(b) hereof.
Regulations" shall mean the Regulations promulgated from time to time by the Secretary or any Guaranty Agency guaranteeing Financed Eligible Loans.
"Remarketing Fee Fund" shall mean the Fund by that name created in
Section 5.01(e) hereof and further described in Section 5.06 hereof, including any Accounts and Subaccounts created therein.
"Reserve Fund" shall mean the Fund by that name created in Section 5.01(f) hereof and further described in Section 5.07 hereof, including any Accounts and Subaccounts created therein.
"Reserve Fund Requirement" shall mean 0.25% of the Outstanding Amount of the Series 2004-1 Notes; provided, however, that so long as any Series 2004-1 Notes remain Outstanding there shall be at least 0.15% of the original principal amount of the Series 2004-1 Notes ($1,515,000) on deposit in the Reserve Fund or such lower amount as may be agreed to by the Rating Agencies as evidenced by a Rating Confirmation.
"Reserve Fund Surety Bond" shall mean a letter of credit, surety bond, insurance policy, agreement guaranteeing payment or other undertaking by a financial institution to ensure that cash in an amount required to meet a Reserve Fund Requirement is available to the Indenture Trustee.
"Reset Period Target Amount" for each Class of the Reset Rate Notes shall mean (a) for any Quarterly Distribution Date through and including the Initial Reset Date for that Class, $267,700 for the Class A-1A Notes, $210,000 for the Class A-1B Notes, $372,000 for the Class A-2 Notes and $130,000 for the Class A-3 Notes, which amounts will be deposited in the Remarketing Fee Fund on the Closing Date; and (b) for any Quarterly Distribution Date thereafter, the highest remarketing fee payable to the Remarketing Agents for that Class of the Reset Rate Notes (not to exceed 0.10% per annum of the maximum Outstanding Amount of such Class of the Reset Rate Notes that could be remarketed) on the next related Reset Date, as determined by the Administrator based on the assumed weighted average life of such Class and the maximum remarketing fee set forth in a schedule to the Remarketing Agreement, as such schedule may be amended from time to time.
"Reset Rate Notes" shall mean, collectively, the Class A-1A Notes, the Class A-1B Notes, the Class A-2 Notes and the Class A-3 Notes.
"Reset Rate Notes Carry-over Amount" shall have the meaning ascribed to such term in Appendix A hereto.
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Exhibit 4.11
"Resolution" shall mean a resolution duly adopted by the Board of Directors.
"Revenue" or "Revenues" shall mean all Recoveries of Principal, payments, proceeds, charges and other income received by the Indenture Trustee or the Issuer from or on account of any Financed Eligible Loan (including scheduled, delinquent and advance payments of and any insurance proceeds with respect to and interest, including Interest Benefit Payments on any Financed Eligible Loan and any Special Allowance Payment received by the Issuer with respect to any Financed Eligible Loan) and all interest earned or gain realized from the investment of amounts in any Fund, Account or Subaccount and all Counterparty Payments received by the Issuer pursuant to a Derivative Product.
"Revolving Period" shall mean, with respect to the use of Recoveries of Principal in the Acquisition Fund, the period beginning on the Closing Date and ending on and including January 31, 2007, unless such Revolving Period is suspended as provided in Section 5.02(b) or terminated on an earlier date as provided in Section 5.02(d) hereof.
"Rule 144A" shall mean Rule 144A promulgated under the Securities Act.
"Rule 144A Certificate" shall have the meaning ascribed to such term in
Section 2.01(b) hereof.
"S&P" shall mean Standard & Poor's Ratings Group, a Division of The McGraw-Hill Companies, Inc., its successors and assigns.
"Secretary" shall mean the Secretary of the United States Department of Education or any successor to the pertinent functions thereof under the Higher Education Act.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securities Depository" shall mean DTC, or if, (a) DTC resigns from its functions as depository of the Series 2004-1 Notes or (b) the Issuer discontinues use of DTC, any other securities depository which agrees to follow the procedures required to be followed by a securities depository in connection with the Series 2004-1 Notes and which is selected by the Issuer with the consent of the Indenture Trustee.
"Securities Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Seller" shall mean an Eligible Lender from which the Issuer is purchasing or has purchased or agreed to purchase Eligible Loans pursuant to a Student Loan Purchase Agreement between the Issuer and such Eligible Lender.
"Senior Obligations" shall mean the Class A Notes and any Derivative Product, the priority of payment of which is equal with that of interest on the Class A Notes.
"Senior Parity Ratio" shall mean, with respect to any date of calculation, the percentage equivalent of a fraction of (a) aggregate Value of the Trust Estate, less (i) amounts on deposit in the Redemption Accounts for the Notes, (ii) amounts that were received under the Interest Rate Cap Derivative Agreement, and (iii) amounts on deposit in the Remarketing Fee Fund over
21
Exhibit 4.11
(b) the Outstanding Amount of the Class A Notes, less amounts on deposit in the Redemption Accounts for the Class A Notes.
"Series 2004-1 Notes" shall mean, collectively, the Class A Notes and the Class B Notes.
"Servicer" shall mean, collectively, Nelnet, Inc., Sallie Mae Servicing L.P., EFS Services, Inc., ACS Educational Services, Inc., Pennsylvania Higher Education Assistance Agency, Great Lakes Educational Loan Services, Inc. and any other additional Servicer, subservicer or successor Servicer or subservicer selected by the Issuer, including an affiliate of the Issuer, so long as the Issuer obtains a Rating Confirmation as to each such other Servicer or subservicer.
"Servicer's Report" shall mean the servicer reports to be furnished to the Issuer by a Servicer pursuant to its Servicing Agreement.
"Servicing Agreement" shall mean, collectively, (a) the Servicing Agreement, dated as of January 1, 2004, between the Issuer and Nelnet, Inc., as supplemented and amended pursuant to its terms, and (b) any other servicing agreement or subservicing agreement entered into with a Servicer or a subservicer.
"Servicing Fee" shall mean the fees and expenses due to a Servicer under the terms of its Servicing Agreement and the fees and expenses due to any custodian under the terms of a Custodian Agreement.
"Special Allowance Payments" shall mean the special allowance payments authorized to be made by the Secretary by Section 438 of the Higher Education Act, or similar allowances, if any, authorized from time to time by federal law or regulation.
"State" shall mean the State of Nebraska.
"Stated Maturity" shall mean the date specified in the Series 2004-1 Notes as the fixed date on which principal of such Series 2004-1 Notes is due and payable.
"Student Loan Purchase Agreement" shall mean a loan purchase agreement entered into for the purchase of Eligible Loans into the Trust Estate from a third party seller, substantially in the form attached as Exhibit K hereto.
"Subaccount" shall mean any of the subaccounts which may be created and established within any Account pursuant to this Indenture.
"Subordinate Interest Trigger" shall mean, with respect to any Distribution Date, the Total Parity Ratio is less than 97% or such other percentage that satisfies the Rating Agency Condition, determined after giving effect to the distribution of any amounts in the Collection Fund on such Distribution Date.
"Subordinate Obligations" shall mean the Class B Notes and any Derivative Product, the priority of payment of which is equal with that of interest on the Class B Notes.
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Exhibit 4.11
"Supplemental Indenture" shall mean an agreement supplemental hereto executed pursuant to Article VIII hereof.
"Supplemental Interest Deposit Amount" shall mean, for any Quarterly Distribution Date and each of the Class A-1A Supplemental Interest Account, the Class A-1B Supplemental Interest Account, the Class A-2 Supplemental Interest Account and the Class A-3 Supplemental Interest Account, the amount that satisfies the Rating Agency Condition obtained in connection with the remarketing of Non-amortizing Reset Rate Notes. For any Quarterly Distribution Date on which the balance in the corresponding Class A-1A Redemption Account, Class A-1B Redemption Account, the Class A-2 Redemption Account or Class A-3 Redemption Account is zero (after taking into account all deposits and withdrawals to be made on such Quarterly Distribution Date), the corresponding Supplemental Interest Deposit Amount will be zero.
"Supplemental Interest Fund" shall mean the Fund by that name created in Section 5.01(g) hereof and further described in Section 5.08 hereof, including any Accounts and Subaccounts created therein.
"Termination Payment" shall mean, with respect to a Derivative Product, any termination payment payable by the Issuer under such Derivative Product relating to an early termination of such Derivative Product after the occurrence of a termination event or event of default specified in such Derivative Product, including any Priority Termination Payment.
"Total Parity Ratio" shall mean, with respect to any date or calculation, the percentage equivalent of a fraction of (a) aggregate Value of the Trust Estate, less (i) amounts on deposit in the Redemption Accounts for the Series 2004-1 Notes, (ii) amounts that were received under the Interest Rate Cap Derivative Agreement, and (iii) amounts on deposit in the Remarketing Fee Fund over (b) the Outstanding Amount of the Series 2004-1 Notes, less amounts on deposit in the Redemption Accounts for the Series 2004-1 Notes.
"Trust Estate" shall mean the property described as such in the granting clauses hereto.
"U.S. Person" shall have the meaning assigned to such term in Regulation S.
"Value" on any calculation date when required under this Indenture shall mean the value of the Trust Estate calculated by the Issuer with respect to clause (a) and by the Indenture Trustee with respect to clauses (b) and (c) as follows:
(a) with respect to any Eligible Loan owned by the Issuer as of the calculation date, the unpaid principal amount thereof plus any accrued but unpaid interest, Interest Benefit Payments and Special Allowance Payments;
(b) with respect to any funds of the Issuer held under this Indenture and on deposit in any commercial bank or as to any banker's acceptance or repurchase agreement or investment contract, the amount thereof plus accrued but unpaid interest; and
(c) with respect to any Investment Securities, the par value thereof, plus accrued but unpaid interest.
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Exhibit 4.11
Words importing the masculine gender include the feminine gender, and words importing the feminine gender include the masculine gender. Words importing persons include firms, associations and corporations. Words importing the singular number include the plural number and vice versa. Additional terms are defined in the body of this Indenture.
ARTICLE II
THE SERIES 2004-1 NOTES
Section 2.01. Series 2004-1 Note Details.
(a) The aggregate principal amount of the Series 2004-1 Notes which may be initially authenticated and delivered pursuant to this Indenture is limited to $1,010,000,000 except for Series 2004-1 Notes authenticated and delivered upon transfer of, or in exchange for, or in lieu of Series 2004-1 Notes pursuant to Sections 2.03 and 2.04 hereof. The Series 2004-1 Notes shall be issued in six (6) separate classes (each a "Class") consisting of the Class A-1A Notes, the Class A-1B Notes, Class A-2 Notes, Class A-3 Notes, the Class B-1 Notes and the Class B-2 Notes. The Series 2004-1 Notes shall be issuable only as fully registered notes in Authorized Denominations. The Series 2004-1 Notes of each Class shall each be lettered "R" and shall be numbered separately from 1 upwards, respectively. The Class A-1A Notes, the Class A-1B Notes, the Class A-2 Notes and the Class A-3 Notes (collectively, the "Class A Notes") constitute Senior Obligations hereunder and the Class B-1 Notes and the Class B-2 Notes (collectively, the "Class B Notes") constitute Subordinate Obligations hereunder.
The Class A Notes (the "Reset Rate Notes") shall be dated as of the Closing Date and shall bear interest from the Closing Date, payable on each Quarterly Distribution Date, except that Reset Rate Notes which are issued upon transfer, exchange or other replacement shall bear interest from the most recent Quarterly Distribution Date to which interest has been paid, or if no interest has been paid, from the Closing Date. The Class A-1A Notes and the Class A-1B Notes shall mature on the Quarterly Distribution Date in May of 2019. The Class A-2 Notes and the Class A-3 Notes shall mature on the Quarterly Distribution Date in August of 2030. Interest on the Reset Rate Notes shall be computed pursuant to the applicable Day Count Basis. The terms of and definitions related to the Reset Rate Notes are found in Article I hereof and Appendix A hereto.
The Class B Notes (the "Auction Rate Notes") shall be dated as of the Closing Date and shall bear interest from the Closing Date, payable on each corresponding Auction Rate Distribution Date, except that Auction Rate Notes which are issued upon transfer, exchange or other replacement shall bear interest from the most recent Auction Rate Distribution Date to which interest has been paid, or if no interest has been paid, from the Closing Date. The Auction Rate Notes shall mature on February 25, 2036. Interest on the Auction Rate Notes shall be computed on the basis of a 360-day year and actual days elapsed. The terms of and definitions related to the Auction Rate Notes are found in Article I hereof and Appendix B hereto.
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Exhibit 4.11
The principal of each Class of the Series 2004-1 Notes due at its Stated Maturity or redemption in whole shall be payable at the Principal Office of the Indenture Trustee, or such other location as directed by the Indenture Trustee, or at the Principal Office of its successor in trust upon presentation and surrender of such Class of Series 2004-1 Notes. Payment of interest and principal, including Principal Reduction Payments, paid upon a partial redemption or reduction of any Series 2004-1 Note shall be made to the Registered Owner thereof by check or draft mailed on the applicable Distribution Date by the Indenture Trustee to the Registered Owner at his address as it last appears on the registration books kept by the Indenture Trustee at the close of business on the Record Date for such Distribution Date. Payment of interest and principal to a Securities Depository or its nominee shall, and at the written request addressed to the Indenture Trustee of any other Registered Owner owning at least $1,000,000 principal amount of the Series 2004-1 Notes, payments of interest shall, be paid by wire transfer within the United States to the bank account number filed no later than the Record Date with the Indenture Trustee for such purpose. All payments on the Series 2004-1 Notes shall be made in lawful money of the United States of America.
(b) The Auction Rate Notes may be offered and sold only to Qualified Institutional Buyers in reliance on Rule 144A. Except as otherwise provided in this Section, the Auction Rate Notes in the form of one global note for each Stated Maturity of each Class shall be registered in the name of the Securities Depository or its nominee and ownership thereof shall be maintained in book-entry form by the Securities Depository for the account of the Agent Members. Initially, each Auction Rate Note shall be registered in the name of CEDE & Co., as the nominee of DTC. The Reset Rate Notes may be offered and sold only to Qualified Institutional Buyers in reliance on Rule 144A or to a Non-U.S. Person outside the United States of America in reliance on Regulation S, as applicable. Except as otherwise provided in this Section, Reset Rate Notes of each Class sold to Qualified Institutional Buyers in reliance on Rule 144A will be represented by interests in a Rule 144A global registered note certificate (a "Rule 144A Certificate") and Reset Rates Notes of each Class sold to Non-U.S. Person outside the United States of America in reliance on Regulation S will be represented by a Regulation S global registered note certificate (a "Regulation S Certificate") for each Stated Maturity. The Rule 144A Certificate will be deposited on the Closing Date with the Indenture Trustee, as custodian for DTC (the "DTC Custodian") and registered in the name of CEDE & Co. as initial nominee for DTC. The aggregate principal amount of the Rule 144A Certificate representing a Class of the Class A Notes may from time to time be increased or decreased by adjustments made on the records of the Indenture Trustee or DTC or its nominee, as the case may be, as hereinafter provided. The Regulation S Certificate will be deposited on the Closing Date with the DTC Custodian and registered in the name of CEDE & Co. as initial nominee for DTC for the accounts of Morgan Guaranty Trust Company of New York, Brussels, as operator of Euroclear, and Clearstream. The aggregate principal amount of the Regulation S Certificate representing a Class of the Class A Notes may from time to time be increased or decreased by adjustments made on the records of the Indenture Trustee or DTC or its nominee, as the case may be, as hereinafter provided. At all times, there will be only one Rule 144A Certificate and one Regulation S Certificate for each Class of the Reset Rate Notes. At all times, the entire Outstanding Amount of each Class of the Reset Rate Notes will be
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Exhibit 4.11
allocated between the corresponding Rule 144A Certificate and Regulation S Certificate. Ownership of the Reset Rate Notes shall be maintained in book-entry form by the Securities Depository for the account of the Agent Members. Except as provided in subsection (d) of this Section, the Series 2004-1 Notes may be transferred, in whole but not in part, only to the Securities Depository or a nominee of such Securities Depository or to a successor Securities Depository selected or approved by the Issuer or to a nominee of such successor Securities Depository. Each global note shall bear a legend substantially to the following effect: "Except as otherwise provided in the Indenture, this global note may be transferred, in whole but not in part, only to another nominee of the Securities Depository or to a successor Securities Depository or to a nominee of a successor Securities Depository."
(c) Except as otherwise provided herein, the Issuer and the Indenture Trustee shall have no responsibility or obligation with respect to (i) the accuracy of the records of any Securities Depository or any Agent Member with respect to any beneficial ownership interest in the Series 2004-1 Notes, (ii) the delivery to any Agent Member, beneficial owner of the Series 2004-1 Notes or other Person, other than the Securities Depository, of any notice with respect to the Series 2004-1 Notes or (iii) the payment to any Agent Member, beneficial owner of the Series 2004-1 Notes or other Person, other than the Securities Depository, of any amount with respect to the principal of or interest on the Series 2004-1 Notes. So long as the certificates for the Series 2004-1 Notes issued under this Indenture are not issued pursuant to subsection (d) of this Section, the Issuer and the Indenture Trustee may treat the Securities Depository as, and deem the Securities Depository to be, the absolute owner of the Series 2004-1 Notes for all purposes whatsoever, including, without limitation, (A) the payment of principal of and interest on such Series 2004-1 Notes, (B) giving notices of redemption and other matters with respect to such Series 2004-1 Notes and (C) registering transfers with respect to such Series 2004-1 Notes. In connection with any notice or other communication to be provided to the Registered Owners pursuant to this Indenture by the Issuer or the Indenture Trustee with respect to any consent or other action to be taken by the Registered Owners, the Issuer or the Indenture Trustee, as the case may be, shall establish a record date for such consent or other action and, if the Securities Depository shall hold all of the Series 2004-1 Notes, give the Securities Depository notice of such record date not less than 15 calendar days in advance of such record date to the extent possible. Such notice to the Securities Depository shall be given only when the Securities Depository is the sole Registered Owner.
(d) If at any time the Securities Depository notifies the Issuer and the Indenture Trustee that it is unwilling or unable to continue as Securities Depository with respect to any or all of the Series 2004-1 Notes or if at any time the Securities Depository shall no longer be registered or in good standing under the Securities Exchange Act or other applicable statute or regulation and a successor Securities Depository is not appointed by the Issuer within 90 days after the Issuer receives notice or becomes aware of such condition, as the case may be, subsections (b) and (c) of this Section shall no longer be applicable and the Issuer shall execute and the Indenture Trustee shall authenticate and deliver certificates representing the Series 2004-1 Notes as provided below. In addition, the Issuer may determine at any time that the Series 2004-1 Notes
26
Exhibit 4.11
shall no longer be represented by Global Certificates and that the provisions of subsections (b) and (c) of this Section shall no longer apply to the Series 2004-1 Notes. In such event, the Issuer shall execute and the Indenture Trustee shall authenticate and deliver certificates representing the Series 2004-1 Notes as provided below. Certificates for the Series 2004-1 Notes issued in exchange for a Global Certificate pursuant to this subsection (d) shall be registered in such names and Authorized Denominations as the Securities Depository, pursuant to instructions from the Agent Members or otherwise, shall instruct in writing to the Issuer and the Indenture Trustee, and upon which written instructions the Indenture Trustee may rely without investigation. The Indenture Trustee shall promptly deliver such certificates representing the Series 2004-1 Notes to the Persons in whose names such Series 2004-1 Notes are so registered.
(e) Any Series 2004-1 Notes issued to Qualified Institutional Buyers who are U.S. Persons and are not affiliates of the Issuer pursuant to Rule 144A will be issued as Rule 144A Certificates. Any Reset Rate Notes issued to Non-U.S. Persons pursuant to Regulation S will be issued as Regulation S Certificate.
Section 2.02. Execution of Series 2004-1 Notes. The Series 2004-1 Notes shall be executed in the name and on behalf of the Issuer by the manual or facsimile signature of any of its Authorized Officers. Any Series 2004-1 Note may be signed manually or by facsimile or attested on behalf of the Issuer by any person who, at the date of such act, shall hold the proper office, notwithstanding that at the date of authentication, issuance or delivery, such person may have ceased to hold such office. The Indenture Trustee shall upon Issuer Order authenticate and deliver the Series 2004-1 Notes for original issue in an aggregate principal amount of $1,010,000,000. The aggregate principal amount of the Series 2004-1 Notes Outstanding at any time may not exceed such amount. Each Series 2004-1 Note shall be dated the date of its authentication. On each Spread Determination Date, upon receipt of an Issuer Order, the Indenture Trustee shall deliver a revised Schedule A for the Reset Rate Notes to the DTC Custodian.
Section 2.03. Registration, Transfer and Exchange of Series 2004-1 Notes; Persons Treated as Registered Owners.
(a) The Issuer shall cause books for the registration and for the transfer of the Series 2004-1 Notes as provided in this Indenture to be kept by the Indenture Trustee which is hereby appointed the registrar and transfer agent of the Issuer for the Series 2004-1 Notes. Notwithstanding such appointment and with the prior written consent of the Issuer, the Indenture Trustee is hereby authorized to make any arrangements with other institutions which it deems necessary or desirable in order that such institutions may perform the duties of registrar and transfer agent for the Series 2004-1 Notes. Upon surrender for transfer of any Series 2004-1 Note at the designated corporate trust office of the Indenture Trustee, duly endorsed for transfer or accompanied by an assignment duly executed by the Registered Owner or his attorney duly authorized in writing, the Issuer shall execute and the Indenture Trustee shall authenticate and deliver in the name of the transferee or transferees a new fully registered Series 2004-1 Note or Series 2004-1 Notes of the same interest rate and for a like Class
27
Exhibit 4.11
and aggregate principal amount of the same Stated Maturity. The transfer of each Series 2004 Note shall be subject to the restrictions set forth in Appendix C hereto.
Series 2004-1 Notes may be exchanged at the designated corporate trust office of the Indenture Trustee for a like aggregate principal amount of fully registered Series 2004-1 Notes of the same Class, interest rate and Stated Maturity in Authorized Denominations. The Issuer shall execute and the Indenture Trustee shall authenticate and deliver Series 2004-1 Notes which the Registered Owner making the exchange is entitled to receive, bearing numbers not contemporaneously outstanding. The execution by the Issuer of any fully registered Series 2004-1 Note of any authorized denomination shall constitute full and due authorization of such denomination and the Indenture Trustee shall thereby be authorized to authenticate and deliver such fully registered Series 2004-1 Note.
The Indenture Trustee shall not be required to transfer or exchange any Series 2004-1 Note during the period of 15 Business Days next preceding the mailing of notice of redemption as herein provided. After the giving of such notice of redemption, the Indenture Trustee shall not be required to transfer or exchange any Series 2004-1 Note, which Series 2004-1 Note or portion thereof has been called for redemption.
As to any Series 2004-1 Note, the person in whose name the same shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of either principal or interest on any fully registered Series 2004-1 Note shall be made only to or upon the written order of the Registered Owner thereof or his legal representative but such registration may be changed as hereinabove provided. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Series 2004-1 Note to the extent of the sum or sums paid.
The Indenture Trustee shall require the payment by any Registered Owner requesting exchange or transfer of any tax or other governmental charge and all expenses and charges of the Issuer and of the Indenture Trustee required to be paid with respect to such exchange or transfer. The Registered Owner for any such transfer or exchange may be required to pay all taxes and governmental charges in connection with such transfer or exchange.
For so long as any Class of Series 2004-1 Notes are "restricted securities" within the meaning of Rule 144(a)(3) of the Securities Act, (i) the Administrator will provide or cause to be provided to any holder of such Series 2004-1 Notes and any prospective purchaser thereof designated by such a holder, upon the request of such holder or prospective purchaser, the information required to be provided to such holder or prospective purchaser by Rule 144A(d)(4) under the Securities Act; and (ii) the Administrator shall update such information from time to time in order to prevent such information from becoming false and misleading and will take such other actions as are necessary to ensure that the safe harbor exemption from the registration requirements of the Securities Act under Rule 144A is and will be available for resales of such Series 2004-1 Notes conducted in accordance with Rule 144A.
28
Exhibit 4.11
(b) Notwithstanding any provision to the contrary herein, so long as a Global Certificate is held by or on behalf of DTC, transfers of a Global Certificate, in whole or in part, shall only be made in accordance with Section 2.01(b) and this subsection (b).
(i) Global Certificates. Subject to clauses (ii),
(iii) and (iv) of this subsection (b), transfers of a Global Certificate shall be limited to transfers of such Global Note in whole, but not in part, to nominees of DTC or to a successor of DTC or such successor's nominee.
(ii) Rule 144A Certificate to Regulation S Certificate. If a holder of a beneficial interest in a Rule 144A Certificate representing the Reset Rate Notes wishes at any time to exchange its interest in such Rule 144A Certificate for an interest in the corresponding Regulation S Certificate, or to transfer its interest in such Rule 144A Certificate to a Person who wishes to take delivery thereof in the form of an interest in the corresponding Regulation S Certificate, such holder may, subject to the immediately succeeding sentence and the rules and procedures of Euroclear, Clearstream or DTC, as the case may be, exchange or transfer or cause the exchange or transfer of such interest for an equivalent beneficial interest in the Regulation S Certificate. Upon receipt by the Indenture Trustee, as registrar, of:
(A) instructions given in accordance with Euroclear, Clearstream or DTC's procedures, as the case may be, from an Agent Member to instruct DTC to cause to be credited a beneficial interest in the Regulation S Certificate in an amount equal to the beneficial interest in the Rule 144A Certificate to be exchanged or transferred; and
(B) a written order given in accordance with DTC's procedures containing information regarding the participant account of DTC and the Euroclear and Clearstream account to be credited with such increase,
then the Indenture Trustee, as registrar, will instruct DTC to
(1) reduce the principal amount of the Rule 144A Certificate and increase the principal amount of the Regulation S Certificate by the aggregate principal amount of the beneficial interest in the Rule 144A Certificate to be exchanged or transferred, and (2) credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Regulation S Certificate equal to the reduction in the principal amount of the Rule 144A Certificate.
(iii) Regulation S Certificate to Rule 144A Certificate. If a holder of a beneficial interest in a Regulation S Certificate representing the Reset Rate Notes wishes at any time to exchange its interest in such Regulation S Certificate for an interest in a Rule 144A Certificate or to transfer its interest in such Regulation S Certificate to a Person who wishes to take delivery thereof in the form of an interest in the corresponding Rule 144A Certificate, such holder may, subject to the immediately succeeding sentence and the rules and procedures of Euroclear and Clearstream or DTC, as the case may be, exchange or transfer or cause the
29
Exhibit 4.11
exchange or transfer of such interest for an equivalent beneficial interest in the Rule 144A Certificate. Upon receipt by the Indenture Trustee, as registrar, of:
(A) instructions given in accordance with DTC's procedure from an Agent Member to instruct Euroclear or Clearstream to cause to be credited a beneficial interest in the Rule 144A Certificate equal to the beneficial interest in the Regulation S Certificate to be exchanged or transferred, and
(B) a written order given in accordance with DTC's procedures containing information regarding the participant account with DTC to be credited with such increase,
then Euroclear or Clearstream or the Indenture Trustee, as registrar, as the case may be, will instruct DTC to (i) reduce the Regulation S Certificate and increase the principal amount of the Rule 144A Certificate by the aggregate principal amount of the beneficial interest in the Regulation S Certificate to be transferred or exchanged, and (ii) credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Rule 144A Certificate equal to the reduction in the principal amount of the Regulation S Certificate.
(iv) Certificated Securities. In the event that a Global Certificate is exchanged for the Series 2004-1 Notes in definitive registered form without interest coupons, pursuant to Section 2.01(d) hereof such Series 2004-1 Notes may be exchanged for one another only in accordance with such procedures and restrictions as are substantially consistent as determined by the Issuer and the Indenture Trustee to insure that such transfers comply with Rule 144A, or, with respect to the Reset Rate Notes, are to Non-U.S. Persons and non-U.S. residents (as determined for purposes of the Investment Company Act), or otherwise comply with Regulation S, as the case may be.
(v) Transfer of Interests in the Global Certificate. Notwithstanding anything herein to the contrary, transfers of interests in a Global Certificate may be made (A) by book-entry transfer of beneficial interests within the relevant Securities Depository or (B)(1) in the case of transfers of interests in a Rule 144A Certificate, in accordance with subsection (b)(ii) of this Section or (2) in the case of transfers of interest in a Regulation S Certificate, in accordance with subsection (b)(iii); provided that in the case of any such transfer of interests pursuant to clause (A) or (B) above, such transfer is made in accordance with subsection (vi) below.
(vi) Restrictions on Transfers.
(A) Transfers of interests in a Regulation S Certificate to a U.S. Person or a U.S. resident (as determined for purposes of the Investment Company Act) shall be made by delivery of an interest in a Rule 144A Certificate and shall be limited to transfers made pursuant to the
30
Exhibit 4.11
provisions of subsection (b)(iii) of this Section. Beneficial interests in a Regulation S Certificate may only be held through Euroclear and Clearstream.
(B) Any transfer of an interest in a Rule 144A Certificate to a U.S. Person or a U.S. resident (as determined for purposes of the Investment Company Act) that is not a Qualified Institutional Buyer shall be null and void and shall not be given effect for any purpose hereunder, and the Indenture Trustee shall hold any funds conveyed by the intended transferee of such interest in such Rule 144A Certificate in trust for the transferor and shall promptly reconvey such funds to such Person in accordance with the written instructions thereof delivered to the Indenture Trustee at its address listed in Section 9.01 hereof
Section 2.04. Lost, Stolen, Destroyed and Mutilated Series 2004-1 Notes. Upon receipt by the Indenture Trustee of evidence satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Series 2004-1 Note and, in the case of a lost, stolen or destroyed Series 2004-1 Note, of indemnity satisfactory to it, and upon surrender and cancellation of the Series 2004-1 Note, if mutilated, (a) the Issuer shall execute, and the Indenture Trustee shall authenticate and deliver, a new Series 2004-1 Note of the same Class, interest rate, Stated Maturity and Authorized Denomination in lieu of such lost, stolen, destroyed or mutilated Series 2004-1 Note or (b) if such lost, stolen, destroyed or mutilated Series 2004-1 Note shall have matured or have been called for redemption, in lieu of executing and delivering a new Series 2004-1 Note as aforesaid, the Issuer may pay such Series 2004-1 Note. Any such new Series 2004-1 Note shall bear a number not contemporaneously outstanding. The Registered Owner for any such new Series 2004-1 Note may be required to pay all taxes and governmental charges and all expenses and charges of the Issuer and of the Indenture Trustee in connection with the issuance of such Series 2004-1 Note. All Series 2004-1 Notes shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing conditions are exclusive with respect to the replacement and payment of mutilated, destroyed, lost or stolen Series 2004-1 Notes, negotiable instruments or other securities.
Section 2.05. Forms of Series 2004-1 Notes. The Class A Notes shall be in substantially the form set forth in Exhibit A hereto, each with such variations, omissions and insertions as may be necessary. The Class B Notes shall be in substantially the form set forth in Exhibit B hereto, with such variations, omissions and insertions as may be necessary.
Section 2.06. Indenture Trustee's Authentication Certificate. The Indenture Trustee's authentication certificate upon the Series 2004-1 Notes shall be substantially in the forms provided in Exhibits A and B hereto, respectively. No Series 2004-1 Note shall be secured hereby or entitled to the benefit hereof, or shall be valid or obligatory for any purpose, unless a certificate of authentication, substantially in such form, has been duly executed by the Indenture Trustee; and such certificate of the Indenture Trustee upon any Series 2004-1 Note shall be conclusive evidence and the only competent evidence that such Series 2004-1 Note has been authenticated and delivered hereunder. The Indenture Trustee's certificate of authentication shall be deemed to have been duly executed by it if manually signed by an authorized officer of the
31
Exhibit 4.11
Indenture Trustee, but it shall not be necessary that the same person sign the certificate of authentication on all of the Series 2004-1 Notes issued hereunder.
Section 2.07. Cancellation and Destruction of Series 2004-1 Notes by the Indenture Trustee. Whenever any Outstanding Series 2004-1 Notes shall be delivered to the Indenture Trustee for the cancellation thereof pursuant to this Indenture, upon payment of the principal amount and interest represented thereby, or for replacement pursuant to Section 2.03 hereof, such Series 2004-1 Notes shall be promptly cancelled and, within a reasonable time, cremated or otherwise destroyed by the Indenture Trustee and counterparts of a certificate of destruction evidencing such cremation or other destruction shall be furnished by the Indenture Trustee to the Issuer upon request.
Section 2.08. Temporary Series 2004-1 Notes. Pending the preparation of definitive Series 2004-1 Notes, the Issuer may execute and the Indenture Trustee shall authenticate and deliver temporary Series 2004-1 Notes. Temporary Series 2004-1 Notes shall be issuable as fully registered notes without coupons, of any denomination, and substantially in the form of the definitive Series 2004-1 Notes but with such omissions, insertions and variations as may be appropriate for temporary Series 2004-1 Notes, all as may be determined by the Issuer. Every temporary Series 2004-1 Note shall be executed by the Issuer and be authenticated by the Indenture Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Series 2004-1 Notes. As promptly as practicable the Issuer shall execute and shall furnish definitive Series 2004-1 Notes and thereupon temporary Series 2004-1 Notes may be surrendered in exchange therefor without charge at the designated corporate trust office of the Indenture Trustee, and the Indenture Trustee shall authenticate and deliver in exchange for such temporary Series 2004-1 Notes a like aggregate principal amount of definitive Series 2004-1 Notes. Until so exchanged the temporary Series 2004-1 Notes shall be entitled to the same benefits under this Indenture as definitive Series 2004-1 Notes.
Section 2.09. Redemption of and Principal Reduction Payments on the Series 2004-1 Notes.
(a) Optional Redemption of the Reset Rate Notes. Each Class of the Reset Rate Notes is subject to optional redemption, in whole only, at the option of the Issuer, from any source of funds on any Reset Date for such Class of the Reset Rate Notes on or after August 1, 2005, at a redemption price equal to the principal amount thereof being redeemed, plus accrued interest, if any, and any Reset Rate Notes Carry-over Amounts (and any accrued interest thereon) due and payable on such Class of the Reset Rate Notes (as described in Appendix A hereto) to such Reset Date.
(b) Optional Redemption of Reset Rate Notes Upon a Failed Remarketing. Upon a sale of a Pro rata Portion of the Financed Eligible Loans after the declaration of a Failed Remarketing for a Class of the Reset Rate Notes as provided in Section 2.05(c) or 2.07(a) of Appendix A hereto, such Class of the Reset Rate Notes is subject to redemption, in whole only, on any Reset Date on or after August 1, 2005, at a redemption price equal to the principal amount thereof being redeemed, plus accrued interest, if any, and any Reset Rate Notes Carry-over Amounts (and any accrued interest thereon) due
32
Exhibit 4.11
and payable on such Class of the Reset Rate Notes (as described in Appendix A hereto) to such Reset Date.
(c) Optional Redemption of Auction Rate Notes. Subject to the provisions of subsection (j) of this Section, each Class of the Auction Rate Notes is subject to redemption at the option of the Issuer, from any source of funds, in whole or in part, on any Auction Rate Distribution Date for such Class of the Auction Rate Notes, at a redemption price equal to the principal amount thereof being redeemed, plus accrued interest, if any, and any Auction Rate Notes Carry-over Amounts (and any accrued interest thereon) due and payable on such Class of the Auction Rate Notes (as described in Appendix B hereto) to such Auction Rate Distribution Date.
(d) Mandatory Principal Reduction Payments on Reset Rate Notes. The Registered Owners of the Class A-1A Notes shall receive pro rata reductions of principal pursuant to Principal Reduction Payments to be made on Quarterly Distribution Dates (or on Reset Dates as provided in Section 5.05(b) hereof) from amounts on deposit in the Class A-1A Redemption Account of the Note Payment Fund for such purpose, the Registered Owners of the Class A-1B Notes shall receive pro rata reductions of principal pursuant to Principal Reduction Payments to be made on Quarterly Distribution Dates (or on Reset Dates as provided in Section 5.05(b) hereof) from amounts on deposit in the Class A-1B Redemption Account of the Note Payment Fund for such purpose, the Registered Owners of the Class A-2 Notes shall receive pro rata reductions of principal pursuant to Principal Reduction Payments to be made on Quarterly Distribution Dates (or on Reset Dates as provided in Section 5.05(b) hereof) from amounts on deposit in the Class A-2 Redemption Account of the Note Payment Fund for such purpose and the Registered Owners of the Class A-3 Notes shall receive pro rata reductions of principal pursuant to Principal Reduction Payments to be made on Quarterly Distribution Dates (or on Reset Dates as provided in
Section 5.05(b) hereof) from amounts on deposit in the Class A-3Redemption Account of the Note Payment Fund for such purpose, on any Quarterly Distribution Date (or on any Reset Dates as provided in
Section 5.05(b) hereof) from amounts transferred to the Note Payment Fund representing Recoveries of Principal (other than Recoveries of Principal as a result of the voluntary sale of Financed Eligible Loans) or representing amounts transferred from the Collection Fund pursuant to Section 5.04(c)(xviii) hereof. Such amounts are allocated to the Class A-1A Redemption Account, the Class A-1B Redemption Account, the Class A-2 Redemption Account and the Class A-3 Redemption Account pursuant to Section 5.05(a) hereof.
33
Exhibit 4.11
(e) Mandatory Redemption of the Reset Rate Notes. Upon a sale of the Financed Eligible Loans after the Commercial Paper Rate Trigger has occurred as provided in Section 2.07(b) or 2.13 of Appendix A hereto, the Reset Rate Notes are subject to mandatory redemption, in whole only, on any Quarterly Distribution Date on or after August 1, 2005, at a redemption price equal to the principal amount thereof being redeemed, plus accrued interest, if any (but not including any Reset Rate Notes Carry-over Amounts, if any, except to the extent such Reset Rate Notes Carry-over Amounts is payable on such Quarterly Distribution Date pursuant to Section 5.04(c) hereof), to such Quarterly Distribution Date, and a Make-whole Premium, if applicable.
(f) Mandatory Redemption of Auction Rate Notes.
(i) Subject to the provisions of subsection (j) of this Section, the Class B-1 Notes are subject to mandatory redemption, in whole or in part, from amounts on deposit in the Class B-1 Redemption Account of the Note Payment Fund for such purpose and the Class B-2 Notes are subject to mandatory redemption, in whole or in part, from amounts on deposit in the Class B-2 Redemption Account of the Note Payment Fund for such purpose, on any Auction Rate Distribution Date for such Class of the Auction Rate Notes and for which notice can be given pursuant to subsection (g) of this Section, each at a redemption price equal to the principal balance being redeemed plus accrued interest, if any (but not including any Auction Rate Notes Carry-over Amounts, if any, except to the extent such Auction Rate Notes Carry-over Amounts is payable on such Auction Rate Distribution Date pursuant to Section 5.04(c) hereof), to such Auction Rate Distribution Date from amounts transferred to the Class B-1 Redemption Account and the Class B-2 Redemption Account of the Note Payment Fund, as appropriate, representing Recoveries of Principal (other than Recoveries of Principal as a result of the voluntary sale of Financed Eligible Loans) or representing amounts transferred from the Collection Fund pursuant to Section 5.04(c)(xviii) hereof. Recoveries of Principal generated as a result of the voluntary sale of Financed Eligible Loans shall be used to redeem Auction Rate Notes pursuant to subsection (c) of this Section. Redemptions made pursuant to this subsection (f)(i) shall be made on a pro rata basis (based upon Outstanding Amounts) between the Classes of the Auction Rate Notes.
(ii) Upon a sale of the Financed Eligible Loans after the Commercial Paper Rate Trigger has occurred as provided in
Section 2.07(b) or 2.13 of Appendix A hereto, the Auction Rate Notes are subject to mandatory redemption, in whole only, on any Auction Rate Distribution Date for such Auction Rate Notes and for which notice can be given pursuant to subsection (g) of this Section, at a redemption price equal to the principal amount thereof being redeemed, plus accrued interest, if any (but not including any Auction Rate Notes Carry-over Amounts, if any, except to the extent such Auction Rate Notes Carry-over Amounts is payable on such Auction Rate Distribution Date pursuant to Section 5.04(c) hereof), to such Auction Rate Distribution Date.
34
Exhibit 4.11
(g) Notice of Redemption and Principal Reduction Payments. The Indenture Trustee shall cause notice of any redemption of Auction Rate Notes to be given by mailing a copy of the notice by first-class mail to the Auction Agent and to the Registered Owner of the Auction Rate Notes designated for redemption in whole or in part, at their address as the same shall last appear upon the registration books, in each case not less than 10 days prior to the redemption date; provided, however, that failure to give such notice, or any defect therein, shall not affect the validity of any proceedings for the redemption of such Auction Rate Notes for which no such failure or defect occurs. Preferably five, but not less than two Business Days prior to each Quarterly Distribution Date on which Principal Reduction Payments will be made on the Class A Notes or on which the Reset Rate Notes are to be redeemed, the Indenture Trustee shall cause notice of any reduction pursuant to subsection (d) of this Section or any redemption pursuant to subsection (a), (b), (e) or (i) of this Section to be given by mailing a copy of the notice by first class mail to the Administrator and Registered Owners of the Class of the Class A Notes designated for reduction, in whole or in part, or redemption at their address as the same shall last appear upon the registration books on such date; provided, however, that failure to give such notice, or any defect therein, shall not affect the validity of any proceedings for the reduction or redemption of such Class A Notes.
In addition, preferably five, but not less than two Business Days prior to each Quarterly Distribution Date, the Indenture Trustee shall send the Securities Depository written notice with respect to the dollar amount per $1,000 original principal amount of the Class of the Class A Notes that the Indenture Trustee will be paying to the Securities Depository on the Quarterly Distribution Date. The Indenture Trustee may, to the extent necessary to avoid payments of fractional cents, reduce scheduled payments by up to $1,000 for each Class. Such notices, which shall clearly indicate that they relate to a pro rata reduction of principal of such Class of the Class A Notes, shall contain the Ending Balance Factor and the Indenture Trustee contact's name and telephone number, shall be sent by facsimile (or such other method designated by the Securities Depository) to the Securities Depository's Dividend Department at (212) 855-4555.
(h) Partial Redemption.
(i) If less than all of a Class of the Auction Rate Notes are to be redeemed pursuant to subsection (c) or (f) of this Section, such Auction Rate Notes to be redeemed shall be selected by lot in Authorized Denominations in such manner as the Indenture Trustee shall determine.
(ii) In case an Auction Rate Note is of a denomination larger than an Authorized Denomination, a portion of such Auction Rate Note (in an Authorized Denomination) may be redeemed. Upon surrender of any Auction Rate Note for redemption in part only, the Issuer shall execute and the Indenture Trustee shall authenticate and deliver to the Registered Owner thereof, the cost of which shall be paid by the Issuer, a new Auction Rate Note or Auction Rate Notes of the same Class in Authorized Denominations in an aggregate principal amount equal to the unredeemed portion of the Auction Rate Note surrendered.
35
Exhibit 4.11
(i) Extraordinary Optional Redemption of Series 2004-1 Notes. The Series 2004-1 Notes are subject to redemption at the option of the Issuer exercised by an Issuer Order (which Issuer Order shall be received by the Indenture Trustee not less than 16 days prior to such redemption or such lesser period agreed to by the Indenture Trustee), in whole only, on any Distribution Date on which the aggregate current principal balance of the Series 2004-1 Notes is less than or equal to 10% of the initial aggregate principal balance of the Series 2004-1 Notes on the Closing Date, at a redemption price equal to (A) the principal balance plus accrued interest to the date fixed for redemption and (B) any applicable Reset Rate Notes Carry-over Amount, Auction Rate Notes Carry-over Amount and interest accrued on such Reset Rate Notes Carry-over Amount and Auction Rate Notes Carry-over Amount to the date fixed for redemption, from the proceeds of funds received by the Indenture Trustee and deposited in the Note Payment Fund and the Reserve Fund, and the Issuer shall deposit or cause to be deposited in or transferred to the Note Payment Fund an amount sufficient to redeem all of the Series 2004-1 Notes, less amounts on deposit in the Reserve Fund. On such redemption date the Indenture Trustee shall transfer amounts in the Reserve Fund to the Note Payment Fund and effect the redemption of all the Series 2004-1 Notes.
(j) Restrictions on the Redemption of Auction Rate Notes. All of the Reset Rate Notes shall be redeemed prior to redemption of any Auction Rate Notes; provided, however, upon the Indenture Trustee's receipt of an Issuer Order certifying that (A) the Total Parity Ratio exceeds 101% and (B) the Senior Parity Ratio exceeds 104%, or such other percentages that satisfy the Rating Agency Condition, the Indenture Trustee may redeem Auction Rate Notes while Reset Rate Notes remain Outstanding until the Aggregate Value of the Trust Estate to the Outstanding Amount of the Series 2004-1 Notes equals the percentage described in this sentence after giving effect to the proposed redemption of Auction Rate Notes. The Indenture Trustee may conclusively rely upon such certification without duty to know, determine or further examine such Issuer Order.
Section 2.10. Delivery of Series 2004-1 Notes. Upon the execution and delivery of this Indenture, the Issuer shall execute and deliver to the Indenture Trustee and the Indenture Trustee shall authenticate the Series 2004-1 Notes and deliver them to appropriate Securities Depositories and as hereinafter in this Section provided.
Prior to the delivery by the Indenture Trustee of any of the Series 2004-1 Notes, there shall have been filed with or delivered to the Indenture Trustee the following:
(a) A resolution duly adopted by the Issuer, certified by the Secretary or other Authorized Officer thereof, authorizing the execution and delivery of this Indenture, the Assignment Agreement, the Escrow Reserve Agreement, the Eligible Lender Trust Agreement, the Auction Agent Agreement, each Broker-Dealer Agreement, the Remarketing Agreement, the initial Custodian Agreement, the initial Servicing Agreement, the Administration Agreement, the initial Investment Agreement and the issuance of the Series 2004-1 Notes.
(b) Duly executed copies of the documents listed in subsection
(a) of this Section.
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Exhibit 4.11
(c) Rating letters from each Rating Agency stating (i) that the Class A Notes have been rated "AAA" by Fitch and S&P and "Aaa" by Moody's; and (ii) that the Class B Notes have been rated "AA" by Fitch "AA-" by S&P and "Aa" by Moody's.
(d) Upon the issuance of the Series 2004-1 Notes, an amount equal to the Reserve Fund Requirement shall be deposited in the Reserve Fund.
(e) The Indenture Trustee shall have received a written order from the Issuer to authenticate and deliver the Series 2004-1 Notes.
Section 2.11. Deposit of Series 2004-1 Note Proceeds. Upon the issuance and delivery of the Series 2004-1 Notes, the Indenture Trustee shall deposit the net proceeds thereof (i.e., net of an initial issue discount of $2,415) as follows:
(a) an amount equal to $14,571,928 shall be deposited to the Collection Fund;
(b) an amount equal to $2,057,370 shall be deposited to the Remarketing Fee Fund;
(c) an amount equal to $2,525,000 shall be deposited to the Reserve Fund; and
(d) the remainder ($990,843,287) shall be deposited to the Acquisition Fund.
ARTICLE III
PARITY AND PRIORITY OF LIEN; OTHER OBLIGATIONS;
AND DERIVATIVE PRODUCTS
Section 3.01. Parity and Priority of Lien. The provisions, covenants and agreements herein set forth to be performed by or on behalf of the Issuer shall be for the equal benefit, protection and security of the Registered Owners of any and all of the Obligations, all of which, regardless of the time or times of their issuance or maturity, shall be of equal rank without preference, priority or distinction of any of the Obligations over any other thereof, except as expressly provided in this Indenture with respect to certain payment and other priorities.
Section 3.02. Other Obligations.
(a) The Issuer reserves the right to issue other notes or obligations which do not constitute or create a lien on the Trust Estate, subject to receipt of a Rating Confirmation.
(b) The Issuer shall not commingle the Funds established by this Indenture with funds, proceeds, or investments of funds relating to other issues or series of notes heretofore or hereafter issued, except to the extent such permitted commingling is required by the Indenture Trustee for ease in administration of its duties and responsibilities; provided, however, that should the Indenture Trustee require such permitted commingling, it shall keep complete records in order that the funds, proceeds,
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Exhibit 4.11
or investments under this Indenture may at all times be identified by source and application, and if necessary, separated.
(c) The Revenues and other moneys, Financed Eligible Loans, securities, evidences of indebtedness, interests, rights and properties pledged under this Indenture are and will be owned by the Issuer (or the Eligible Lender Trustee) free and clear of any pledge, lien, charge or encumbrance thereon or with respect thereto prior to, of equal rank with or subordinate to the respective pledges created by this Indenture, except as otherwise expressly provided herein, and all action on the part of the Issuer to that end has been duly and validly taken. If any Financed Eligible Loan is found to have been subject to a lien at the time such Financed Eligible Loan was acquired, the Issuer shall cause such lien to be released, shall purchase such Financed Eligible Loan from the Trust Estate for a purchase price equal to its principal amount and interest accrued thereon or shall replace such Financed Eligible Loan with another Eligible Loan with substantially identical characteristics which replacement Eligible Loan shall be free and clear of liens at the time of such replacement. Except as otherwise provided herein, the Issuer shall not create or voluntarily permit to be created any debt, lien, or charge on the Financed Eligible Loans which would be on a parity with, subordinate to, or prior to the lien of this Indenture; shall not do or omit to do or suffer to be done or omitted to be done any matter or things whatsoever whereby the lien of this Indenture or the priority of such lien for the Obligations hereby secured might or could be lost or impaired; and will pay or cause to be paid or will make adequate provisions for the satisfaction and discharge of all lawful claims and demands which if unpaid might by law be given precedence to or any equality with this Indenture as a lien or charge upon the Financed Eligible Loans; provided, however, that nothing in this subsection (c) shall require the Issuer to pay, discharge, or make provision for any such lien, charge, claim, or demand so long as the validity thereof shall be by it in good faith contested, unless thereby, in the opinion of the Indenture Trustee, the same will endanger the security for the Obligations; and provided further that any subordinate lien hereon (i.e., subordinate to the lien securing the Senior Obligations and the Subordinate Obligations) shall be entitled to no payment from the Trust Estate, nor may any remedy be exercised with respect to such subordinate lien against the Trust Estate until all Obligations have been paid or deemed paid hereunder.
Section 3.03. Derivative Products; Counterparty Payments; Issuer Derivative Payments. The Issuer hereby authorizes and directs the Indenture Trustee to acknowledge and agree to any Derivative Product hereafter entered into by the Issuer and a Counterparty under which (a) the Issuer may be required to make, from time to time, Issuer Derivative Payments and (b) the Indenture Trustee may receive, from time to time, Counterparty Payments for the account of the Issuer. No Derivative Product shall be entered into unless the Indenture Trustee shall have received a Rating Confirmation from each Rating Agency that such Derivative Product will not adversely affect the Rating on any of the Series 2004-1 Notes.
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Exhibit 4.11
ARTICLE IV
PROVISIONS APPLICABLE TO THE NOTES;
DUTIES OF THE ISSUER
Section 4.01. Payment of Principal, Interest and Premium. The Issuer covenants that it will promptly pay, but solely from the Trust Estate, the principal of and interest, if any, on each and every Obligation issued under the provisions of this Indenture at the places, on the dates and in the manner specified herein and in said Obligations and any premium required for the retirement of said Obligations by purchase or redemption according to the true intent and meaning thereof. The Obligations shall be and are hereby declared to be payable from and equally secured by an irrevocable first lien on and pledge of the properties constituting the Trust Estate, subject to the application thereof as permitted by this Indenture, but in no event shall the Registered Owners or any Counterparty have any right to possession of any Financed Eligible Loans, which shall be held only by the Indenture Trustee or its agent or bailee.
Section 4.02. Representations and Warranties of the Issuer. The Issuer represents and warrants that it is duly authorized under the laws of the State to create and issue the Series 2004-1 Notes and to execute and deliver this Indenture and any Derivative Product and to make the pledge to the payment of Series 2004-1 Notes and any Issuer Derivative Payments hereunder, that all necessary action on the part of the Issuer and the Board of Directors for the creation and issuance of the Series 2004-1 Notes and the execution and delivery of this Indenture and any Derivative Product has been duly and effectively taken; and that the Series 2004-1 Notes in the hands of the Registered Owners thereof and the Issuer Derivative Payments are and will be valid and enforceable special limited obligations of the Issuer secured by and payable solely from the Trust Estate.
Section 4.03. Covenants as to Additional Conveyances. At any and all times, the Issuer will duly execute, acknowledge, and deliver, or will cause to be done, executed, and delivered, all and every such further acts, conveyances, transfers, and assurances in law as the Indenture Trustee shall reasonably require for the better conveying, transferring, and pledging and confirming unto the Indenture Trustee, all and singular, the properties constituting the Trust Estate hereby transferred and pledged, or intended so to be transferred and pledged.
Section 4.04. Further Covenants of the Issuer.
(a) The Issuer will cause financing statements and continuation statements with respect thereto at all times to be filed in the office of the Secretary of State of the State and any other jurisdiction necessary to perfect and maintain the security interest granted by the Issuer hereunder, and will provide the Indenture Trustee with copies of all such statements.
(b) The Issuer will duly and punctually keep, observe and perform each and every term, covenant, and condition on its part to be kept, observed, and performed, contained in this Indenture and the other agreements to which the Issuer is a party pursuant to the transactions contemplated herein, and will punctually perform all duties
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Exhibit 4.11
required by the Articles of Incorporation and Bylaws of the Issuer and the laws of the State.
(c) The Issuer shall be operated on the basis of its Fiscal Year.
(d) The Issuer shall cause to be kept full and proper books of records and accounts, in which full, true, and proper entries will be made of all dealings, business, and affairs of the Issuer which relate to the Series 2004-1 Notes and any Derivative Product.
(e) The Issuer, upon written request of the Indenture Trustee, will permit at all reasonable times the Indenture Trustee or its agents, accountants, and attorneys, to examine and inspect the property, books of account, records, reports, and other data relating to the Financed Eligible Loans, and will furnish the Indenture Trustee such other information as it may reasonably request. The Indenture Trustee shall be under no duty to make any such examination unless requested in writing to do so by the Registered Owners of not less than a majority of the principal amount of the Series 2004-1 Notes, and unless such Registered Owners shall have offered the Indenture Trustee security and indemnity satisfactory to it against any costs, expenses and liabilities which might be incurred thereby.
(f) The Issuer shall cause an annual audit to be made by an independent auditing firm of national reputation and file one copy thereof with the Indenture Trustee and each Rating Agency within 150 days of the close of each Fiscal Year. The Indenture Trustee shall be under no obligation to review or otherwise analyze such audit.
(g) The Issuer covenants that all Financed Eligible Loans upon receipt thereof shall be delivered to the Indenture Trustee or its agent or bailee to be held pursuant to this Indenture and pursuant to a Servicing Agreement or a Custodian Agreement.
(h) Notwithstanding anything to the contrary contained herein, except upon the occurrence and during the continuance of an Event of Default hereunder, the Issuer hereby expressly reserves and retains the privilege to receive and, subject to the terms and provisions of this Indenture, to keep or dispose of, claim, bring suits upon or otherwise exercise, enforce or realize upon its rights and interest in and to the Financed Eligible Loans and the proceeds and collections therefrom, and neither the Indenture Trustee nor any Registered Owner shall in any manner be or be deemed to be an indispensable party to the exercise of any such privilege, claim or suit and the Indenture Trustee shall be under no obligation whatsoever to exercise any such privilege, claim or suit; provided, however, that the Indenture Trustee shall have and retain possession or control of the Financed Eligible Loans pursuant to
Section 5.02 hereof (which Financed Eligible Loans may be held by the Indenture Trustee's agent or bailee pursuant to a Custodian Agreement) so long as such loans are subject to the lien of this Indenture.
(i) The Issuer shall notify the Indenture Trustee and each Rating Agency in writing prior to entering into any Derivative Product and shall not enter into any Derivative Product unless the Indenture Trustee has received a Rating Confirmation.
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Exhibit 4.11
Section 4.05. Enforcement of Servicing Agreements. The Issuer shall comply with and shall require each Servicer to comply with the following whether or not the Issuer is otherwise in default under this Indenture:
(a) cause to be diligently enforced and taken all reasonable steps, actions and proceedings necessary for the enforcement of all terms, covenants and conditions of all Servicing Agreements, including the prompt payment of all amounts due the Issuer thereunder, including, without limitation, all principal and interest payments, and Guarantee payments which relate to any Financed Eligible Loans and cause each Servicer to specify whether payments received by it represent principal or interest;
(b) not permit the release of the obligations of any Servicer under any Servicing Agreement except in conjunction with amendments or modifications permitted by subsection (h) of this Section;
(c) at all times, to the extent permitted by law, cause to be defended, enforced, preserved and protected the rights and privileges of the Issuer and of the Registered Owners under or with respect to each Servicing Agreement;
(d) at its own expense, the Issuer shall duly and punctually perform and observe each of its obligations to each Servicer under its Servicing Agreement in accordance with the terms thereof;
(e) the Issuer agrees to give the Indenture Trustee prompt written notice of each default on the part of a Servicer of its obligations under its Servicing Agreement coming to the Issuer's attention;
(f) the Issuer shall not waive any default by a Servicer under its Servicing Agreement without the written consent of the Indenture Trustee;
(g) the Issuer shall cause each Servicer to deliver to the Indenture Trustee and the Issuer, on or before April 30 of each year, beginning with April 30, 2005, a certificate stating that (i) a review of the activities of such Servicer during the preceding calendar year and of its performance under its Servicing Agreement has been made under the supervision of the officer signing such certificate and (ii) to the best of such officers' knowledge, based on such review, such Servicer has fulfilled all its obligations under its Servicing Agreement throughout such year, or, there has been a default in the fulfillment of any such obligation, specifying each such default known to such officer and the nature and statue thereof; and
(h) not consent or agree to or permit any amendment or modification of any Servicing Agreement which will in any manner materially adversely affect the rights or security of the Registered Owners. The Issuer shall be entitled to receive and rely upon an opinion of its counsel that any such amendment or modification will not materially adversely affect the rights or security of the Registered Owners.
Section 4.06. Procedures for Transfer of Funds. In any instance where this Indenture requires a transfer of funds or money from one Fund to another, a transfer of ownership in
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Exhibit 4.11
investments or an undivided interest therein may be made in any manner agreeable to the Issuer and the Indenture Trustee, and in the calculation of the amount transferred, interest on the investment which has or will accrue before the date the money is needed in the fund to which the transfer is made shall not be taken into account or considered as money on hand at the time of such transfer.
Section 4.07. Additional Covenants with Respect to the Higher Education Act. The Issuer covenants that it will cause each of the Indenture Trustee and the Eligible Lender Trustee to be, or replace the Indenture Trustee and the Eligible Lender Trustee with, an Eligible Lender under the Higher Education Act, that it will acquire or cause to be acquired Eligible Loans originated and held only by an Eligible Lender and that it will not dispose of or deliver any Financed Eligible Loans or any security interest in any such Financed Eligible Loans to any party who is not an Eligible Lender so long as the Higher Education Act or Regulations adopted thereunder require an Eligible Lender to be the owner or holder of such Eligible Loans; provided, however, that nothing above shall prevent the Issuer from delivering the Eligible Loans to a Servicer or a Guaranty Agency. The Registered Owners of the Series 2004-1 Notes shall not in any circumstances be deemed to be the owner or holder of the Eligible Loans.
The Issuer, or its designated agent, shall be responsible for each of the following actions with respect to the Higher Education Act:
(a) the Issuer, through its Authorized Representative, shall be responsible for dealing with the Secretary with respect to the rights, benefits and obligations under the Certificates of Insurance and the Contract of Insurance, and the Issuer shall be responsible for dealing with the Guarantee Agencies with respect to the rights, benefits and obligations under the Guarantee Agreements with respect to the Financed Eligible Loans;
(b) the Issuer, through its Authorized Representative, shall cause to be diligently enforced, and shall cause to be taken all reasonable steps, actions and proceedings necessary or appropriate for the enforcement of all terms, covenants and conditions of all Financed Eligible Loans and agreements in connection therewith, including the prompt payment of all principal and interest payments and all other amounts due thereunder;
(c) the Issuer, through its Authorized Representative, shall cause the Financed Eligible Loans to be serviced by entering into one or more Servicing Agreements or other agreement with a Servicer for the collection of payments made for, and the administration of the accounts of, the Financed Eligible Loans;
(d) the Issuer, through its Authorized Representative, shall comply, and shall cause all of its officers, directors, employees and agents to comply, with the provisions of the Higher Education Act and any regulations or rulings thereunder, with respect to the Financed Eligible Loans;
(e) the Issuer, through its Authorized Representative, shall cause the benefits of the Guarantee Agreements, the Interest Subsidy Payments and the Special Allowance
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Exhibit 4.11
Payments to flow to the Indenture Trustee. The Indenture Trustee shall have no liability for actions taken at the direction of the Issuer, except for negligence or willful misconduct in the performance of its express duties hereunder. The Indenture Trustee shall have no obligation to administer, service or collect the loans in the Trust Estate or to maintain or monitor the administration, servicing or collection of such loans; and
(f) the Issuer, through its Authorized Representative, shall cause each Financed Eligible Loan evidenced by a Master Promissory Note in the form mandated by Section 432(m)(1) of the Higher Education Act to be acquired pursuant to a Student Loan Purchase Agreement containing language similar to the following:
"The [Seller] hereby represents and warrants that the
[Seller] is transferring all of its right title and interest in the MPN Loan to the Indenture Trustee, that it has not assigned any interest in such MPN Loan (other than security interests that have been released or ownership interests that the [Seller] has reacquired) to any person other than the Indenture Trustee, and that no prior holder of the MPN Loan has assigned any interest in such MPN Loan (other than security interests that have been released or ownership interests that such prior holder has reacquired) to any person other than a predecessor in title to the [Seller]. The
[Seller] hereby covenants that the [Seller] shall not attempt to transfer to any other person any interest in any MPN Loan assigned hereunder. The [Seller] hereby authorizes the Indenture Trustee to file a UCC-1 financing statement identifying the [Seller] as debtor and the Indenture Trustee as secured party and describing the Loans sold pursuant to this Agreement. The preparation or filing of such UCC-1 financing statement is solely for additional protection of the Indenture Trustee's interest in the MPN Loans and shall not be deemed to contradict the express intent of the [Seller] and the Indenture Trustee that the transfer of MPN Loans under this Agreement is an absolute assignment of such MPN Loans and is not a transfer of such MPN Loans as security for a debt."]
Section 4.08. Financed Eligible Loans; Collections Thereof; Assignment Thereof. The Issuer, through one or more Servicers, shall diligently collect all principal and interest payments on all Financed Eligible Loans, and all Interest Benefit Payments, insurance, guarantee and default claims and Special Allowance Payments which relate to such Financed Eligible Loans. The Issuer shall cause the filing and assignment of such claims (prior to the timely filing deadline for such claims under the Regulations) by the appropriate Servicer. The Issuer will comply with the Higher Education Act and Regulations which apply to the Program and to such Financed Eligible Loans.
Section 4.09. Appointment of Agents, Etc. The Issuer shall employ and appoint all employees, agents, consultants and attorneys which it may consider necessary. No member of the Board of Directors, neither singly nor collectively, shall be personally liable for any act or omission not willfully fraudulent.
Section 4.10. Capacity to Sue. The Issuer shall have the power and capacity to sue and to be sued on matters arising out of or relating to the financing of the Financed Eligible Loans.
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Exhibit 4.11
Section 4.11. Continued Existence; Successor to Issuer. The Issuer agrees that it will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights and franchises as a Nebraska corporation, except as otherwise permitted by this Section. The Issuer further agrees that it will not (a) sell, transfer or otherwise dispose of all or substantially all, of its assets (except Financed Eligible Loans if such sale, transfer or disposition will discharge this Indenture in accordance with Article X hereof); (b) consolidate with or merge into another corporation or entity; or
(c) permit one or more other corporations or entities to consolidate with or merge into it. The preceding restrictions in clauses (a), (b) and (c) shall not apply to a transaction if the transferee or the surviving or resulting corporation or entity, if other than the Issuer, by proper written instrument for the benefit of the Indenture Trustee, irrevocably and unconditionally assumes the obligation to perform and observe the agreements and obligations of the Issuer under this Indenture.
If a transfer is made as provided in this Section, the provisions of this Section shall continue in full force and effect and no further transfer shall be made except in compliance with the provisions of this Section.
Section 4.12. Amendment of Student Loan Purchase Agreements. The Issuer shall notify the Indenture Trustee in writing of any proposed material amendments to any existing Student Loan Purchase Agreement. No such material amendment shall become effective unless and until the Indenture Trustee consents thereto in writing. The consent of the Indenture Trustee shall not be unreasonably withheld and shall not be withheld if the Indenture Trustee receives an opinion of counsel acceptable to them that such an amendment is required by the Higher Education Act and is not materially prejudicial to the Registered Owners. Notwithstanding the foregoing, however, the Indenture Trustee shall consent to an amendment from time to time so long as it is not materially prejudicial to the interests of the Registered Owners, and the Indenture Trustee may rely on an opinion of counsel to such effect.
Section 4.13. Representations; Negative Covenants.
(a) The Issuer hereby makes the following representations and warranties to the Indenture Trustee on which the Indenture Trustee relies in authenticating the Series 2004-1 Notes and on which the Registered Owners have relied in purchasing the Series 2004-1 Notes. Such representations and warranties shall survive the grant of the Trust Estate to the Indenture Trustee pursuant to this Indenture.
(i) Organization and Good Standing. The Issuer is duly organized and validly existing under the laws of the State, and has the power to own its assets and to transact the business in which it presently engages.
(ii) Due Qualification. The Issuer is duly qualified to do business and is in good standing, and has obtained all material necessary licenses and approvals, in all jurisdictions where the failure to be so qualified, have such good standing or have such licenses or approvals would have a material adverse effect on the Issuer's business and operations or in which the actions as required by this Indenture require or will require such qualification.
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Exhibit 4.11
(iii) Authorization. The Issuer has the power, authority and legal right to execute, deliver and perform this Indenture and to grant the Trust Estate to the Indenture Trustee and the execution, delivery and performance of this Indenture and grant of the Trust Estate to the Indenture Trustee have been duly authorized by the Issuer by all necessary corporate action.
(iv) Binding Obligation. This Indenture, assuming due authorization, execution and delivery by the Indenture Trustee, constitutes a legal, valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, except that (A) such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws (whether statutory, regulatory or decisional) now or hereafter in effect relating to creditors' rights generally and (B) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to certain equitable defenses and to the discretion of the court before which any proceeding therefor may be brought, whether a proceeding at law or in equity.
(v) No Violation. The consummation of the transactions contemplated by this Indenture and the fulfillment of the terms hereof does not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice, lapse of time or both) a default under the organizational documents of the Issuer, or any material indenture, agreement, mortgage, deed of trust or other instrument to which the Issuer is a party or by which it is bound, or result in the creation or imposition of any lien upon any of its material properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument, other than this Indenture, nor violate any law or any order, rule or regulation applicable to the Issuer of any court or of any federal or state regulatory body, administrative agency, or other governmental instrumentality having jurisdiction over the Issuer or any of its properties.
(vi) No Proceedings. There are no proceedings, injunctions, writs, restraining orders or investigations to which the Issuer or any of such entity's affiliates is a party pending, or, to the best of such entity's knowledge, threatened, before any court, regulatory body, administrative agency, or other tribunal or governmental instrumentality (A) asserting the invalidity of this Indenture, (B) seeking to prevent the issuance of any Series 2004-1 Notes or the consummation of any of the transactions contemplated by this Indenture or (C) seeking any determination or ruling that might materially and adversely affect the performance by the Issuer of its obligations under, or the validity or enforceability of this Indenture.
(vii) Approvals. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official, required on the part of the Issuer in connection with the execution and delivery of this Indenture have been taken or obtained on or prior to the Closing Date.
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Exhibit 4.11
(viii) Place of Business. The Issuer's place of business and chief executive office is 121 South 13 Street, Suite 201, Lincoln, NE 68508.
(ix) Tax and Accounting Treatment. The Issuer intends to treat the transactions contemplated by the Student Loan Purchase Agreements as an absolute transfer rather than as a pledge of the Financed Eligible Loans from the Seller thereof for federal income tax and financial accounting purposes and the Issuer (through the Eligible Lender Trustee) will be treated as the owner of the Financed Eligible Loans for all purposes. The Issuer further intends to treat the Series 2004-1 Notes as its indebtedness for federal income tax and financial accounting purposes.
(x) Taxes. The Issuer has filed (or caused to be filed) all federal, state, county, local and foreign income, franchise and other tax returns required to be filed by it through the date hereof, and has paid all taxes reflected as due thereon. The Issuer has taken all steps necessary to ensure that it is eligible to file a consolidated federal income tax return with National Education Loan Network, Inc. and such returns will be filed for all taxable years in which the Series 2004-1 Notes are Outstanding. There is no pending dispute with any taxing authority that, if determined adversely to the Issuer, would result in the assertion by any taxing authority of any material tax deficiency, and the Issuer has no knowledge of a proposed liability for any tax year to be imposed upon such entity's properties or assets for which there is not an adequate reserve reflected in such entity's current financial statements.
(xi) Legal Name. The legal name of the Issuer is "Nelnet Education Loan Funding, Inc.," formerly known as NEBHELP, Inc. and Nebraska Higher Education Loan Program, Inc.
(xii) Business Purpose. The Issuer has (i) originated or (ii) previously acquired or will acquire the Financed Eligible Loans conveyed to it under student loan purchase agreements substantially in the form of the Student Loan Purchase Agreement attached hereto as Exhibit K for a bona fide business purpose and has undertaken the transactions contemplated herein as principal rather than as an agent of any other Person. The Issuer has no subsidiaries, has adopted and operated consistently with all corporate formalities with respect to its operations.
(xiii) Compliance With Laws. The Issuer is in compliance with all applicable laws and regulations with respect to the conduct of its business and has obtained and maintains all permits, licenses and other approvals as are necessary for the conduct of its operations.
(xiv) Valid Business Reasons; No Fraudulent Transfers. The transactions contemplated by this Indenture are in the ordinary course of the Issuer's business and the Issuer has valid business reasons for granting the Trust Estate pursuant to this Indenture. At the time of each such grant:
(A) the Issuer granted the Trust Estate to the Indenture Trustee without any intent to hinder,
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Exhibit 4.11
delay, or defraud any current or future creditor of the Issuer; (B) the Issuer was not insolvent and did not become insolvent as a result of any such grant; (C) the Issuer was not engaged and was not about to engage in any business or transaction for which any property remaining with such entity was an unreasonably small capital or for which the remaining assets of such entity are unreasonably small in relation to the business of such entity or the transaction; (D) the Issuer did not intend to incur, and did not believe or should not have reasonably believed, that it would incur, debts beyond its ability to pay as they become due; and (E) the consideration received by the Issuer for the grant of the Trust Estate was reasonably equivalent to the value of the related grant.
(xv) No Management of Affairs of any Seller. The Issuer is not and will not be involved in the day-to-day management of any Seller or the Issuer's parent or any affiliate.
(xvi) No Intercorporate Transfers with any Seller or Affiliates. Other than the transfer of assets and the transfer of any Series 2004-1 Notes pursuant to this Indenture, the Issuer does not engage in and will not engage in any intercorporate transactions with any Seller or its affiliates, except as provided herein with respect to Program Expenses and the Administration Agreement or the payment of dividends to the Issuer's parent.
(xvii) Ability to Perform. There has been no material impairment in the ability of the Issuer to perform its obligations under this Indenture.
(xviii) Financial Condition. No material adverse change has occurred in the Issuer's financial status since the date of its formation.
(xix) Event of Default. No Event of Default has occurred and no event has occurred that, with the giving of notice, the passage of time, or both, would become an Event of Default.
(xx) Acquisition of Financed Eligible Loans Legal. The Issuer has complied with all applicable federal, state and local laws and regulations in connection with its acquisition of the Financed Eligible Loans from the Sellers.
(b) The Issuer will not:
(i) sell, transfer, exchange or otherwise dispose of any portion of the Trust Estate except as expressly permitted by this Indenture;
(ii) claim any credit on, or make any deduction from, the principal amount of any of the Series 2004-1 Notes by reason of the payment of any taxes levied or assessed upon any portion of the Trust Estate;
(iii) except as otherwise provided herein, dissolve or liquidate in whole or in part, except with the prior written consent of the Indenture Trustee, and to
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Exhibit 4.11
the extent Series 2004-1 Notes remain Outstanding, approval of the Registered Owners and a Rating Confirmation;
(iv) permit the validity or effectiveness of this Indenture, any Supplemental Indenture or any grant hereunder to be impaired, or permit the lien of this Indenture to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations under this Indenture, except as may be expressly permitted hereby;
(v) except as otherwise provided herein, permit any lien, charge, security interest, mortgage or other encumbrance (other than the lien of this Indenture) to be created on or extend to or otherwise arise upon or burden the Trust Estate or any part thereof or any interest therein or the proceeds thereof;
(vi) permit the lien of this Indenture not to constitute a valid first priority, perfected security interest in the Trust Estate;
(vii) guarantee any indebtedness of any Person whether secured by any Financed Eligible Loans under this Indenture or otherwise, except for such obligations as may be incurred by the Issuer in connection with the issuance of the Series 2004-1 Notes pursuant to this Indenture and unsecured trade payables in the ordinary course of its business;
(viii) operate such that it would be consolidated with its parent or any other affiliate and its separate corporate existence disregarded in any federal or state proceeding;
(ix) act as agent of any Seller or, except as provided in a Servicing Agreement, allow the Seller to act as its agent;
(x) other than certain indemnifications provided to it by its parent, the Issuer will not allow the Seller or its parent or any other affiliate to pay its expenses, guarantee its obligations or advance funds to it for payment of expenses; or
(xi) consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Issuer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Issuer; or the Issuer shall not consent to the appointment of a receiver, conservator or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, voluntary liquidation or similar proceedings of or relating to the Issuer or of or relating to all or substantially all of its property; or admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any
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Exhibit 4.11
applicable insolvency, bankruptcy or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations.
(c) The Issuer makes the following representations and warranties as to the Trust Estate which is granted to the Indenture Trustee hereunder on such date, on which the Indenture Trustee relies in accepting the Trust Estate. Such representations and warranties shall survive the grant of the Trust Estate to the Indenture Trustee pursuant to this Indenture:
(i) Financed Eligible Loans. Each Financed Eligible Loan financed by the Issuer shall constitute an Eligible Loan and contain the characteristics found in a Student Loan Purchase Agreement.
(ii) Schedule of Financed Eligible Loans. The information set forth in each schedule of Financed Eligible Loans to the Student Loan Purchase Agreements is true and correct in all material respects as of the opening of business on the Closing Date.
(iii) Grant. It is the intention of the Issuer that the transfer herein contemplated constitutes a grant of the Financed Eligible Loans to the Indenture Trustee.
(iv) All Filings Made. All filings (including, without limitation, UCC filings) necessary in any jurisdiction to give the Indenture Trustee a first priority perfected ownership and security interest in the Trust Estate, including the Financed Eligible Loans, have been made no later than the Closing Date and copies of the file-stamped financing statements shall be delivered to the Indenture Trustee within five Business Days of receipt by the Issuer or its agent from the appropriate secretary of state. The Issuer has not caused, suffered or permitted any lien, pledges, offsets, defenses, claims, counterclaims, charges or security interest with respect to the promissory notes relating to the Financed Eligible Loans (other than the security interest created in favor of the Indenture Trustee) to be created.
(v) Transfer Not Subject to Bulk Transfer Act. Each grant of the Financed Eligible Loans by the Issuer pursuant to this Indenture is not subject to the bulk transfer act or any similar statutory provisions in effect in any applicable jurisdiction.
(vi) No Transfer Taxes Due. Each grant of the Financed Eligible Loans (including all payments due or to become due thereunder) by the Issuer pursuant to this Indenture is not subject to and will not result in any tax, fee or governmental charge payable by the Issuer or the Seller to any federal, state or local government.
(vii) Not an Investment Company. The Issuer is not an "investment company" within the meaning of the Investment Company Act of 1940, as
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Exhibit 4.11
amended, or is exempt from all provisions of the Investment Company Act of 1940, as amended.
(viii) Binding Obligations. This Indenture, the Series 2004-1 Notes and each Obligation constitutes the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except (A) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect, affecting the enforcement of creditors' rights in general; and (B) as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity).
(ix) Valid Security Interest. This Indenture creates a valid and continuing security interest (as defined in the Uniform Commercial Code as in effect in the State of Nebraska) in the Financed Eligible Loans in favor of the Indenture Trustee, and is enforceable as such against any creditors of the Issuer.
Section 4.14. Additional Covenants. So long as any of the Series 2004-1 Notes are Outstanding:
(a) The Issuer shall not engage in any business or activity other than in connection with the activities contemplated by its Articles of Incorporation.
(b) The Issuer shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity except as otherwise provided herein.
(c) The funds and other assets of the Issuer shall not be commingled with those of any other individual, corporation, estate, partnership, joint venture, association, joint stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof.
(d) The Issuer shall not be, become or hold itself out as being liable for the debts of any other party.
(e) The Issuer shall act solely in its own name and through its duly Authorized Representative in the conduct of its business, and shall conduct its business so as not to mislead others as to the identity of the entity with which they are concerned.
(f) The Issuer shall maintain its records and books of account and shall not commingle its records and books of account with the records and books of account of any other Person. The books of the Issuer may be kept (subject to any provision contained in the statutes) inside or outside the State at such place or places as may be designated from time to time by the board of trustees or in the bylaws of the Issuer.
(g) All actions of the Issuer shall be taken by a duly Authorized Representative of the Issuer.
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Exhibit 4.11
(h) The Issuer shall not amend, alter, change or repeal any provision contained in this Section without (i) the prior written consent of the Indenture Trustee and (ii) a Rating Confirmation (a copy of which shall be provided to the Indenture Trustee).
(i) The Issuer shall not amend its Articles of Incorporation without first obtaining the prior written consent of each Rating Agency.
(j) All audited financial statements of the Issuer that are consolidated with those of any affiliate thereof will contain detailed notes clearly stating that (i) all of the Issuer's assets are owned by the Issuer, and (ii) the Issuer is a separate entity with creditors who have received ownership and/or security interests in the Issuer's assets.
(k) The Issuer will strictly observe legal formalities in its dealings with each Seller, the Issuer's parent or any affiliate thereof, and funds or other assets of the Issuer will not be commingled with those of any Seller, the Issuer's parent or any other affiliate thereof. The Issuer shall not maintain joint bank accounts or other depository accounts to which any Seller, the Issuer's parent or any other affiliate has independent access. None of the Issuer's funds will at any time be pooled with any funds of any Seller, the Issuer's parent or any other affiliate.
(l) The Issuer will maintain an arm's length relationship with each Seller (and any affiliate). Any Person that renders or otherwise furnishes services to the Issuer will be compensated by the Issuer at market rates for such services it renders or otherwise furnishes to the Issuer except as otherwise provided in this Indenture. Except as contemplated in this Indenture, the Student Loan Purchase Agreements, the Administration Agreement or a Servicing Agreement, the Issuer will not hold itself out to be responsible for the debts of any Seller, the parent or the decisions or actions respecting the daily business and affairs of any Seller or parent.
Section 4.15. Providing of Notice. The Issuer, upon learning of any failure on its part to observe or perform in any material respect any covenant, representation or warranty of the Issuer set forth in this Indenture or a Student Loan Purchase Agreements, or of any failure on the part of a Seller to observe or perform in any material respect any covenant, representation or warranty of a Seller set forth in its Student Loan Purchase Agreement, shall promptly notify the Indenture Trustee, the appropriate Servicer and each Rating Agency of such failure.
Section 4.16. Statement as to Compliance. The Issuer will deliver to the Indenture Trustee, within 75 days after the end of each fiscal year, a brief certificate from an Authorized Officer including (i) a current list of the officers and directors of the Issuer and a list of Authorized Representatives, and (ii) a statement of the Issuer's compliance with all conditions and covenants under this Indenture and, in the event of any noncompliance, specifying such noncompliance and the nature and status thereof. For purposes of this Section, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.
Section 4.17. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee. The Issuer covenants that if:
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Exhibit 4.11
(a) default is made in the payment of any installment of interest, if any, on any Series 2004-1 Notes when such interest becomes due and payable and such default continues for a period of 5 days; or
(b) default is made in the payment of the principal of (and premium, if any, on) any Series 2004-1 Notes at its Maturity,
then the Issuer will, upon demand of the Indenture Trustee, pay to the Indenture Trustee, for the benefit of the Registered Owners, the whole amount then due and payable on such Series 2004-1 Notes for principal (and premium, if any) and interest, with interest upon any overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest, if any, at the rate or rates borne by or provided for in such Series 2004-1 Notes, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such demand, the Indenture Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree, and may enforce the same against the Issuer or any other obligor upon such Series 2004-1 Notes of such Class and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Issuer or any other obligor upon such Series 2004-1 Notes, wherever situated.
If an Event of Default with respect to the Series 2004-1 Notes occurs and is continuing, the Indenture Trustee may, after being indemnified to its satisfaction and in its discretion, proceed to protect and enforce its rights and the rights of the Registered Owners of Series 2004-1 Notes by such appropriate judicial proceedings as the Indenture Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 4.18. Representations of the Issuer Regarding the Indenture Trustee's Security Interest. The Issuer hereby represents and warrants for the benefit of the Indenture Trustee and the Registered Owners as follows:
(a) This Indenture creates a valid and continuing security interest (as defined in the applicable Uniform Commercial Code in effect in the State of Nebraska) in the Financed Eligible Loans in favor of the Indenture Trustee, which security interest is prior to all other liens, charges, security interests, mortgages or other encumbrances, and is enforceable as such as against creditors of and purchasers from the Issuer.
(b) The Higher Education Act deems the Financed Eligible Loans to constitute accounts within the meaning of the applicable UCC as in effect in the State of Nebraska for the purposes of perfecting a security interest in the Financed Eligible Loans.
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Exhibit 4.11
(c) The Issuer (or the Eligible Lender Trustee on behalf of the Issuer) owns and has good and marketable title to the Financed Eligible Loans free and clear of any lien, charge, security interest, mortgage or other encumbrance, claim or encumbrance of any Person.
(d) The Issuer has caused or will have caused, within 10 days, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Financed Eligible Loans granted to the Indenture Trustee hereunder.
(e) All executed copies of each promissory note that constitute or evidence the Financed Eligible Loans have been delivered to either the Indenture Trustee or a custodian pursuant to a Custodian Agreement.
(f) The Issuer has received a written acknowledgment from each custodian pursuant to a Custodian Agreement that such custodian is holding the promissory notes that constitute or evidence the Financed Eligible Loans solely on behalf and for the benefit of the Indenture Trustee.
(g) Other than the security interest granted to the Indenture Trustee pursuant to this Indenture, the Issuer has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Financed Eligible Loans. The Issuer has not authorized the filing of and is not aware of any financing statements against the Issuer that include a description of collateral covering the Financed Eligible Loans other than any financing statement relating to the security interest granted to the Indenture Trustee hereunder or that has been terminated. The Issuer is not aware of any judgment or tax lien filings against the Issuer.
Section 4.19. Covenants of the Issuer Regarding the Indenture Trustee's Security Interest. The Issuer hereby covenants for the benefit of the Indenture Trustee and the Registered Owners as follows:
(a) The representations and warranties set forth in Section 4.18 hereof shall survive the termination of this Indenture.
(b) The Indenture Trustee shall not waive any of the representations and warranties set forth in Section 4.18 hereof.
(c) The Issuer shall take all steps necessary, and shall cause each Servicer to take all steps necessary and appropriate, to maintain the perfection and priority of the Indenture Trustee's security interest in the Financed Eligible Loans.
Section 4.20. Tax Treatment. The Issuer has entered into this Indenture, and the Series 2004-1 Notes will be issued, with the intention that, for federal, state and local income, business and franchise tax purposes, the Series 2004-1 Notes will qualify as indebtedness of the Issuer. The Issuer, by entering into this Indenture, and each Registered Owner, by its acceptance of its Series 2004-1 Note, agrees to treat the Series 2004-1 Notes for federal, state and local income, business and franchise tax purposes as indebtedness of the Issuer.
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Exhibit 4.11
Section 4.21. Opinions as to Indenture Trust Estate.
(a) On the Closing Date, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording and filing of this Indenture, any Supplemental Indentures hereto, and any other requisite documents, and with respect to the execution and filing of any financing statements and continuation statements, as are necessary to perfect and make effective the lien and security interest of this Indenture and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to make such lien and security interest effective.
(b) On or before March 31, in each calendar year, beginning on March 31, 2005, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Indenture, any Supplemental Indentures hereto and any other requisite documents and with respect to the execution and filing of any financing statements and continuation statements as are necessary to maintain the lien and security interest created by this Indenture and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain such lien and security interest. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Indenture, any Supplemental Indentures hereto and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the lien and security interest of this Indenture until March 31, in the following calendar year.
Section 4.22. Borrower Incentive Programs. The Issuer presently offers borrower incentive programs for Consolidation Loans originated by the Issuer and its affiliates that provide for (a) a 0.25% interest rate reduction for borrowers that make payments on their loans electronically and (b) a 1.0% interest rate reduction for borrowers that make a specified number of on-time payments. If any such incentive programs, or any other borrower incentive programs offered by the Issuer in the future which are not required by the Higher Education Act, are in effect for any Financed Eligible Loans on any Distribution Date on which the Total Parity Ratio is below 101%, or such other percentage that satisfies the Rating Agency Condition, the Issuer shall either
(i) contribute funds to the Collection Fund in an amount sufficient to offset the effective yield reductions caused by such borrower incentive programs since the preceding Distribution Date or (ii) notify each Servicer to terminate the borrower incentive programs for those Financed Eligible Loans. If a Servicer is notified by the Issuer to terminate the borrower incentive programs for the Financed Eligible Loans being serviced by such Servicer, such Servicer may choose to contribute funds to the Collection Fund in an amount sufficient to offset the effective yield reductions caused by the borrower incentive programs on the Financed Eligible Loans being serviced by such Servicer in lieu of terminating the borrower incentive programs for those Financed Eligible Loans.
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Exhibit 4.11
ARTICLE V
FUNDS
Section 5.01. Creation and Continuation of Funds and Accounts. There are hereby created and established the following Funds and Accounts to be held and maintained by the Indenture Trustee for the benefit of the Registered Owners (and the Remarketing Agents with respect to the Remarketing Fee Fund):
(a) Acquisition Fund;
(b) Class B Supplemental Reserve Fund;
(c) Collection Fund;
(d) Note Payment Fund, including a Class A-1A Interest Account, a Class A-1A Redemption Account, a Class A-1B Interest Account, a Class A-1B Redemption Account, a Class A-2 Interest Account, a Class A-2 Redemption Account, a Class A-3 Interest Account, a Class A-3 Redemption Account, a Class B-1 Interest Account, a Class B-1 Redemption Account, a Class B-2 Interest Account, a Class B-2 Redemption Account and a Counterparty Payment Account for each Derivative Product (if Issuer Derivative Payments are required to be paid thereunder) therein;
(e) Remarketing Fee Fund;
(f) Reserve Fund; and
(g) Supplemental Interest Fund, including a Class A-1A Supplemental Interest Account, a Class A-1B Supplemental Interest Account, a Class A-2 Supplemental Interest Account and a Class A-3 Supplemental Interest Account therein.
The Indenture Trustee is hereby authorized for the purpose of facilitating the administration of the Trust Estate and for the administration of any Series 2004-1 Notes issued hereunder to create further Accounts or Subaccounts in any of the various Funds and Accounts established hereunder or as are otherwise deemed necessary or desirable.
Section 5.02. Acquisition Fund.
(a) Deposits to the Acquisition Fund. There shall be deposited into the Acquisition Fund the proceeds of the Series 2004-1 Notes set forth in Section 2.11(d) hereof, all Recoveries of Principal received by the Indenture Trustee during the Revolving Period and all moneys transferred thereto from the Collection Fund pursuant to Section 5.04(a) and (c)(xviii) hereof. Financed Eligible Loans shall be held by the Indenture Trustee or its agent or bailee (including a Servicer) and shall be pledged to the Trust Estate and accounted for as a part of the Acquisition Fund.
(b) Uses of Moneys in the Acquisition Fund. Moneys on deposit in the Acquisition Fund shall be used, upon Issuer Order, (i) to pay costs of issuing the
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Exhibit 4.11
Series 2004-1 Notes and (ii) upon receipt by the Indenture Trustee of an Eligible Loan Acquisition Certificate in the form of Exhibit H hereto, to acquire Eligible Loans (including serial loans and Add-on Consolidation Loans) during the Revolving Period at a price of not greater than the par amount of the Eligible Loan, plus accrued interest thereon, and which would permit the results of cash flow analyses provided to each Rating Agency on the Closing Date to be sustained as certified to the Indenture Trustee on the Eligible Loan Acquisition Certificate; provided that such price may be increased if a Rating Confirmation is obtained, based on new cash flow analyses containing such assumptions as the Issuer shall reasonably determine; provided, however, that during the Revolving Period, (A) the Issuer shall be obligated to acquire Consolidation Loans with amounts on deposit in the Acquisition Fund to the extent that the Issuer does not use such amounts to acquire other Eligible Loans and (B) no more than 20% (by original principal balance) of the Eligible Loans Financed during the Revolving Period may be attributable to Eligible Loans (other than Consolidation Loans) the proceeds of which funded tuition for a student attending a for-profit vocational school that does not offer baccalaureate degrees. Any such Issuer Order or Eligible Loan Acquisition Certificate shall state that such proposed use of moneys in the Acquisition Fund is in compliance with the provisions of this Indenture. Moneys in the Acquisition Fund shall be used to acquire Eligible Loans on a first-in first-out basis. The Issuer, by Issuer Order, shall direct the Indenture Trustee to deposit any moneys which have remained on deposit in the Acquisition Fund for a period of six months to the Note Payment Fund; provided, however, the Issuer shall not instruct the Indenture Trustee to transfer any such moneys unless the aggregate amount thereof is at least $5,000,000. At the end of the Revolving Period, the Indenture Trustee shall transfer all remaining amounts on deposit in the Acquisition Fund to the Note Payment Fund.
Notwithstanding the foregoing, if on any Distribution Date there are not sufficient moneys on deposit in the Collection Fund to make the transfers required by Section 5.04(c)(i) through (ix) hereof, then, any cash or Investment Securities in an amount equal to any such deficiency shall be transferred directly from the Acquisition Fund to the Collection Fund. In the event that any moneys are transferred from the Acquisition Fund to the Collection Fund pursuant to this subsection
(b), the Revolving Period will be suspended until the later of (i) the second subsequent Quarterly Distribution Date and (ii) the date on which $10,000,000 is on deposit in the Acquisition Fund.
(c) Ownership and Sale of Financed Eligible Loans. While the Issuer will be the beneficial owner of the Financed Eligible Loans and the Registered Owners will have a security interest therein, it is understood and agreed that the Eligible Lender Trustee will be the legal owner thereof and the Indenture Trustee will have a security interest in the Financed Eligible Loans for and on behalf of the Registered Owners. The notes representing the Financed Eligible Loans will be held in the name of the Eligible Lender Trustee for the account of the Issuer and for the benefit of the Registered Owners.
Financed Eligible Loans shall be sold, transferred or otherwise disposed of (other than for consolidation, serialization or transfer to a Guaranty Agency or a Servicer, which sales or transfers may be made without limitation) by the Indenture Trustee free from the
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Exhibit 4.11
lien of this Indenture at any time pursuant to an Issuer Order (other than to the Seller from which the Issuer originally acquired the Financed Eligible Loans) and if the Indenture Trustee is provided with the following:
(i) an Issuer Order stating the sale price and directing that Financed Eligible Loans be sold, transferred or otherwise disposed of and delivered to:
(A) if the Eligible Loan is originated under the Higher Education Act and the Higher Education Act requires any such Eligible Loan to be held only by an Eligible Lender, an Eligible Lender under the Higher Education Act whose name shall be specified; or
(B) the trustee under another indenture securing notes issued by the Issuer; and
(ii) an Issuer Order stating to the effect:
(A) that the disposition price is (x) equal to or in excess of the greater of (I) the purchase price paid by the Issuer for such Financed Eligible Loan (less principal amounts received with respect to such Financed Eligible Loan plus a pro rata share of such Financed Eligible Loan's cost of issuance) and
(II) 101% of the principal amount of such Financed Eligible Loan, plus accrued interest thereon and (y) reasonably equal to the fair market value of such Financed Eligible Loan; or
(B) if a Financed Eligible Loan is in default or otherwise deemed by the Issuer to not be performing in accordance with the expectations set forth in the closing cashflows, that the disposition price is lower than the purchase price paid by the Issuer for such Financed Eligible Loan (less principal amounts received with respect to such Financed Eligible Loan plus a pro rata share of such Financed Eligible Loan's cost of issuance), and (I) the Issuer reasonably believes that the present value of the Revenues expected to be received (after giving effect to such disposition) would be at least equal to the Revenues expected to be received assuming no such sale, transfer or other disposition occurred, or
(II) the Issuer shall remain able to pay debt service on the Series 2004-1 Notes and make payment on any other Obligations on a timely basis (after giving effect to such sale, transfer or other disposition) whereas it would not have been able to do so on a timely basis if it had not sold, transferred or disposed of such Financed Eligible Loan at such discounted amount, or (III) the Aggregate Value of the Trust Estate (after giving effect to such sale, transfer or other disposition) will be at least equal to 100% of the aggregate principal amount of the Obligations plus accrued interest.
Notwithstanding the foregoing, if the proposed sale, transfer or other disposition of such Eligible Loans shall cause the aggregate principal amount of all Financed Eligible Loans sold, transferred or otherwise disposed of (other than for consolidation, serialization or
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Exhibit 4.11
transfer to a Guaranty Agency or a Servicer, which sales or transfers may be made without limitation) since the Closing Date to exceed five percent (5%) of the principal amount of the Financed Eligible Loans within the Trust Estate on the Closing Date, or the principal amount of the Financed Eligible Loans proposed to be sold, transferred or otherwise disposed of (other than for consolidation, serialization or transfer to a Guaranty Agency or a Servicer, which sales or transfers may be made without limitation) exceeds ten percent (10%) of the then current principal amount of the Financed Eligible Loans within the Trust Estate, the Issuer shall provide the Indenture Trustee with a Rating Confirmation. In connection with providing such Rating Confirmation, any Rating Agency may request a new cash flow analysis of the Trust Estate be prepared, and the Issuer shall cause such new cash flow analysis to be prepared and provided to such Rating Agency.
Further, Financed Eligible Loans shall also be sold, transferred or otherwise disposed of by the Indenture Trustee pursuant to an Issuer Order (other than to the Seller from which the Issuer originally acquired the Financed Eligible Loans) if the Issuer determines that such disposition of Financed Eligible Loans from the Trust Estate is necessary in order to avoid the occurrence of an Event of Default hereunder or to avoid any default in the payment obligations of the Issuer under any reimbursement agreement, in such amount and at such times and prices as may be specified in such Issuer Order. The Indenture Trustee, following receipt of the foregoing and of an Issuer Order indicating that such purchaser or transferee is one of the entities described in clause (i) of this subsection (c), if applicable, shall deliver such Financed Eligible Loans free from the lien of this Indenture upon the receipt of the purchase price or consideration specified in the Issuer Order, in compliance with the foregoing. The proceeds to be received upon any disposition may consist of cash, Investment Securities and/or Eligible Loans.
The selection and sale of Financed Eligible Loans which are to be sold for the purpose of optionally redeeming Class A Notes pursuant to Section 2.09(a) hereof shall be performed solely on a pro rata basis in the manner described in Section 2.07(a) of Appendix A hereto.
(d) Early Termination of the Revolving Period. The Revolving Period shall be terminated, prior to January 31, 2007, on any date on which an Early Amortization Event has occurred.
Section 5.03. Class B Supplemental Reserve Fund.
(a) Deposits to the Class B Supplemental Reserve Fund. On the first Distribution Date on which the Total Parity Ratio is equal to or greater than 101%, or such other percentage that satisfies the Rating Agency Condition, the Indenture Trustee shall transfer an amount equal to the Class B Supplemental Reserve Fund Requirement to the Class B Supplemental Reserve Fund pursuant to Section 5.04(c)(xvi) hereof. If, on any Distribution Date, the amount on deposit in the Class B Supplemental Reserve Fund is less than the Class B Supplemental Reserve Fund Requirement, the Indenture Trustee shall restore the Class B Supplemental Reserve Fund to the Class B Supplemental Reserve Fund Requirement by transfers from the Collection Fund on the next
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Exhibit 4.11
Distribution Date pursuant to Section 5.04(c)(xvi) hereof; provided, that such transfer shall only be made if the Total Parity Ratio on such Distribution Date is equal to or greater than 101%, or such other percentage that satisfies the Rating Agency Condition. If the full amount required to initially fund or restore the Class B Supplemental Reserve Fund to the Class B Supplemental Reserve Fund Requirement is not available in the Collection Fund on such next succeeding Distribution Date on which the Total Parity Ratio is equal to or greater than 101%, the Indenture Trustee shall continue to transfer funds from the Collection Fund as they become available pursuant to
Section 5.04(c)(xvi) hereof and in accordance with the restriction contained in this subsection (a) until the deficiency in the Class B Supplemental Reserve Fund has been eliminated.
(b) Use of Moneys in the Class B Supplemental Reserve Fund. If on any Distribution Date there are not sufficient moneys on deposit in the Collection Fund to make the transfers required by Section 5.04(c)(v) or (vi) hereof, then, an amount equal to any such deficiency shall be transferred directly from the Class B Supplemental Reserve Fund to the Collection Fund to make the transfers required by Section 5.04(c)(v) or (vi) hereof to the extent such deficiency has not been paid from the Acquisition Fund, the Note Payment Fund or the Reserve Fund. If on any Distribution Date there are sufficient moneys on deposit in the Collection Fund to make the transfers required by
Section 5.04(c)(v) hereof, but the Issuer is prohibited from making such transfers due to the occurrence or continuation of the Subordinate Interest Trigger on such Distribution Date, then, an amount equal to any such deficiency shall be transferred directly from the Class B Supplemental Reserve Fund to the Collection Fund to make the transfers required by Section 5.04(c)(v) hereof. On the date of redemption of all of the Class B Notes, the Indenture Trustee shall transfer all amounts in the Class B Supplemental Reserve Fund to the Note Payment Fund for the redemption of the Class B Notes. On any Distribution Date that the amount in the Class B Supplemental Reserve Fund exceeds the Class B Supplemental Reserve Fund Requirement with respect thereto, the Indenture Trustee, at the direction of the Issuer, shall transfer the excess to the Collection Fund. Upon an Event of Default and liquidation of the Trust Estate, amount on deposit in the Class B Supplemental Reserve Fund shall be disbursed pursuant to Section 6.02 hereof.
Section 5.04. Collection Fund.
(a) Deposits to the Collection Fund. The Indenture Trustee shall deposit into the Collection Fund the proceeds of the Series 2004-1 Notes set forth in Section 2.11(a) hereof, all Revenues derived from Financed Eligible Loans financed by the Issuer, all other Revenue derived from moneys or assets on deposit in the Funds and Accounts established hereunder (including any amounts received pursuant to an Investment Agreement), all amounts transferred to the Collection Fund from the Acquisition Fund, the Class B Supplemental Reserve Fund, the Note Payment Fund, the Reserve Fund and the Supplemental Interest Fund pursuant to the terms hereof, all Counterparty Payments, any amounts deposited thereto pursuant to Section 4.22 hereof and any other amounts deposited thereto upon receipt of an Issuer Order. During the Revolving Period, all Recoveries of Principal constituting a portion of the Revenue deposited in the Collection Fund and so identified to the Indenture Trustee by the Issuer shall be transferred, on a monthly basis, to the Acquisition Fund. After the Revolving Period, all Recoveries of
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Exhibit 4.11
Principal constituting a portion of the Revenue deposited in the Collection Fund and so identified to the Indenture Trustee by the Issuer shall be transferred, on a monthly basis, to the Note Payment Fund.
(b) Payments on Monthly Servicing Payment Dates. The Administrator shall instruct the Indenture Trustee in writing no later than the second Business Day preceding each Monthly Servicing Payment Date that is not a Distribution Date (based on the information contained in the Administrator's Monthly Servicing Payment Date Certificate and the related Servicer's Report) to distribute to the appropriate Servicer, on such Monthly Servicing Payment Date, from and to the extent of the Revenues on deposit in the Collection Fund, the Servicing Fee due such Servicer with respect to the preceding calendar month, and the Indenture Trustee shall comply with such instructions.
(c) Payments on Distribution Dates. The Issuer shall provide the Indenture Trustee with an Issuer Order with respect to all Issuer Derivative Payments, Reset Rate Notes Carry-over Amounts (including any interest thereon) and Auction Rate Notes Carry-over Amounts (including any interest thereon), which Issuer Order the Indenture Trustee may conclusively rely on. The Administrator shall instruct the Indenture Trustee in writing no later than the second Business Day preceding each Distribution Date (based on the information contained in the Administrator's Distribution Date Certificate and the related Servicer's Report) to make the following deposits and distributions from the Collection Fund to the Persons or to the Fund or Account specified below on such Distribution Date, in the following order of priority, and the Indenture Trustee shall comply with such instructions (any money not so transferred or paid to remain in the Collection Fund until subsequently applied pursuant to this subsection (c)):
(i) on each Quarterly Distribution Date (and on each Auction Rate Distribution Date with respect to the Auction Agent and each Broker-Dealer), to pay to each Servicer, the Indenture Trustee, the Auction Agent, each Broker-Dealer, each Remarketing Agent (to the extent not paid from the Remarketing Fee Fund) and any other Person that is due Program Expenses hereunder and to make a deposit to the Remarketing Fee Fund as provided in Section 5.06 hereof, pro rata, based on amounts owed to each such party or required to be deposited to the Remarketing Fee Fund, without preference or priority of any kind, the Servicing Fee (to the extent remaining unpaid following the Monthly Servicing Payment Date), the Indenture Trustee Fee, the Eligible Lender Trustee Fee, the Auction Agent Fee, the Broker-Dealer Fees, the Remarketing Fees (to the extent not paid from the Remarketing Fee Fund), such other Program Expenses that are due and payable and the Quarterly Funding Amount, respectively, due on such Quarterly Distribution Date, in each case, together with such fees remaining unpaid from prior Quarterly Distribution Dates (and, in the case of the Servicing Fee, prior Monthly Servicing Payment Dates and in the case of the Auction Agent Fee and the Broker-Dealer Fees, prior Auction Rate Distribution Dates);
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Exhibit 4.11
(ii) on each Quarterly Distribution Date, to pay to the Administrator, the Administration Fee due on such Quarterly Distribution Date and all unpaid Administration Fees from prior Quarterly Distribution Dates;
(iii) to (A) transfer to the Class A-1A Interest Account, an amount equal to the Class A-1A Notes Interest Distribution Amount which has accrued since the prior Distribution Date, (B) transfer to the Class A-1B Interest Account, an amount equal to the Class A-1B Notes Interest Distribution Amount which has accrued since the prior Distribution Date, (C) transfer to the Class A-2 Interest Account, an amount equal to the Class A-2 Interest Distribution Amount which has accrued since the prior Distribution Date, (D) transfer to the Class A-3 Interest Account, an amount equal to the Class A-3 Interest Distribution Amount which has accrued since the prior Distribution Date and (E) transfer to each Counterparty Payment Account, any Issuer Derivative Payments which are paid on a parity with interest on the Class A Notes owed to such Counterparty which have accrued on such Counterparty's Derivative Product since the prior Distribution Date, pro rata, based on amounts required to be transferred to each Account, without preference or priority of any kind;
(iv) to (A) transfer to the Class A-1A Redemption Account, on the Stated Maturity of the Class A-1A Notes, an amount equal to the Outstanding Amount of the Class A-1A Notes, less any amounts already on deposit in the Class A-1A Redemption Account, (B) transfer to the Class A-1B Redemption Account, on the Stated Maturity of the Class A-1B Notes, an amount equal to the Outstanding Amount of the Class A-1B Notes, less any amounts already on deposit in the Class A-1B Redemption Account, (C) transfer to the Class A-2 Redemption Account, on the Stated Maturity of the Class A-2 Notes, an amount equal to the Outstanding Amount of the Class A-2 Notes and (D) transfer to the Class A-3 Redemption Account, on the Stated Maturity of the Class A-3 Notes, an amount equal to the Outstanding Amount of the Class A-3 Notes, less any amounts already on deposit in the Class A-3 Redemption Account, pro rata, based on amounts required to be transferred to each Account, without preference or priority of any kind;
(v) Unless the Subordinate Interest Trigger has occurred or is continuing on such Distribution Date, to (A) transfer to the Class B-1 Interest Account, an amount equal to the Class B-1 Notes Interest Distribution Amount which has accrued since the prior Distribution Date, (B) transfer to the Class B-2 Interest Account, an amount equal to the Class B-2 Notes Interest Distribution Amount which has accrued since the prior Distribution Date, and (C) transfer to each Counterparty Payment Account, any Issuer Derivative Payments which are paid on a parity with interest on the Class B Notes owed to such Counterparty which have accrued on such Counterparty's Derivative Product since the prior Distribution Date, pro rata, based on amounts required to be transferred to each Account, without preference or priority of any kind;
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Exhibit 4.11
(vi) to (A) transfer to the Class B-1 Redemption Account, on the Stated Maturity of the Class B-1 Notes, an amount equal to the Outstanding Amount of the Class B-1 Notes, less any amounts already on deposit in the Class B-1 Redemption Account and (B) transfer to the Class B-2 Redemption Account, on the Stated Maturity of the Class B-2 Notes, an amount equal to the Outstanding Amount of the Class B-2 Notes, less any amounts already on deposit in the Class B-2 Redemption Account, pro rata, based on amounts required to be transferred to each Account, without preference or priority of any kind;
(vii) to the Administrator for transfer to the appropriate Seller or trust estate from which the Eligible Loan was purchased or transferred, an amount equal to the unpaid interest accrued on the Eligible Loans Financed with the proceeds of the Series 2004-1 Notes subsequent to the cut-off date for such Eligible Loans but prior to the Closing Date, until such amount has been paid in full;
(viii) on each Quarterly Distribution Date to (A) transfer to the Class A-1A Supplemental Interest Account, an amount equal to the Supplemental Interest Deposit Amount corresponding to the Class A-1A Redemption Account, (B) transfer to the Class A-1B Supplemental Interest Account, an amount equal to the Supplemental Interest Deposit Amount corresponding to the Class A-1B Redemption Account, (C) transfer to the Class A-2 Supplemental Interest Account, an amount equal to the Supplemental Interest Deposit Amount corresponding to the Class A-2 Redemption Account and (D) transfer to the Class A-3 Supplemental Interest Account, an amount equal to the Supplemental Interest Deposit Amount corresponding to the Class A-3 Redemption Account, pro rata, based on amounts required to be transferred to each Account, without preference or priority of any kind;
(ix) to the Reserve Fund the amount, if any, required by Section 5.07(a) hereof;
(x) upon receipt of an Issuer Order, to (A) transfer to the Class A-1A Interest Account, an amount equal to any Reset Rate Notes Carry-over Amount (and any accrued interest thereon) due and payable on the Class A-1A Notes (as provided in Appendix A hereto), (B) transfer to the Class A-1B Interest Account, an amount equal to any Reset Rate Notes Carry-over Amount (and any accrued interest thereon) due and payable on the Class A-1B Notes (as provided in Appendix A hereto), (C) transfer to the Class A-2 Interest Account, an amount equal to any Reset Rate Notes Carry-over Amount (and any accrued interest thereon) due and payable on the Class A-2 Notes (as provided in Appendix A hereto)and (D) transfer to the Class A-3 Interest Account, an amount equal to any Reset Rate Notes Carry-over Amount (and any accrued interest thereon) due and payable on the Class A-3 Notes (as provided in Appendix A hereto), pro rata, based on amounts required to be transferred to each Account, without preference or priority of any kind;
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Exhibit 4.11
(xi) unless the Subordinate Interest Trigger has occurred or is continuing on such Distribution Date, upon receipt of an Issuer Order, to (A) transfer to the Class B-1 Interest Account, an amount equal to any Auction Rate Notes Carry-over Amount (and any accrued interest thereon) due and payable on the Class B-1 Notes (as provided in Appendix B hereto) and (B) transfer to the Class B-2 Interest Account, an amount equal to any Auction Rate Notes Carry-over Amount (and any accrued interest thereon) due and payable on the Class B-2 Notes (as provided in Appendix B hereto), pro rata, based on the amounts required to be transferred to each Account, without preference or priority of any kind;
(xii) upon receipt of an Issuer Order, to transfer to the corresponding Counterparty Payment Account, an amount equal to any unpaid amounts (including any unpaid Termination Payments) due on the Derivative Product Distribution Date with respect to a Derivative Product on which Issuer Derivative Payments are paid on a parity with interest on the Class A Notes, pro rata, based on the amounts required to be transferred to each Account, without preference or priority of any kind;
(xiii) upon receipt of an Issuer Order, to transfer to the corresponding Counterparty Payment Account, an amount equal to any unpaid amounts (including any unpaid Termination Payments) due on the Derivative Product Distribution Date with respect to a Derivative Product on which Issuer Derivative Payments on which the Issuer Derivative Payments thereunder are paid on a parity with interest on the Class B Notes, pro rata, based on the amounts required to be transferred to each Account, without preference or priority of any kind;
(xiv) on any Quarterly Distribution Date, to the Administrator to reimburse it for any payments made by it to the Remarketing Agents pursuant to the Remarketing Agreement;
(xv) to the Servicer, to repurchase Eligible Loans that the Issuer is required to repurchase from the Servicer in accordance with the terms of the Servicing Agreement;
(xvi) if the Total Parity Ratio is equal to or greater than 101%, to the Class B Supplemental Reserve Fund, the amount, if any, required by Section 5.03(a) hereof;
(xvii) on any Quarterly Distribution Date, unless the Commercial Paper Rate Trigger has occurred, to the extent the Indenture permits payments to the Issuer free from the lien of the Indenture pursuant to Section 5.09 hereof, at the option of the Issuer and upon Issuer Order to exercise such option, the amount permitted to be paid to the Issuer from the Collection Fund on such Quarterly Distribution Date may be (A) paid to the Issuer or (B) transferred to the Class B-1 Redemption Account or the Class B-2 Redemption Account for the optional redemption of Class B Notes pursuant to Section 2.09(c) hereof; and
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Exhibit 4.11
(xviii) on any Quarterly Distribution Date, any amounts remaining in the Collection Fund shall be transferred (A) during the Revolving Period, to the Acquisition Fund and (B) after Revolving Period, to the Note Payment Fund.
If a Derivative Product has been entered into with respect to any Class of the Series 2004-1 Notes, the Indenture Trustee, the Issuer and the Administrator may assume for purposes of making the deposits and transfers with respect to such Class of the Series 2004-1 Notes required by this subsection (c) that the Counterparty Payment with respect to such Derivative Product will be timely received and therefore any amounts expected to be paid from such Counterparty Payment need not be deposited to the appropriate Funds and Accounts until such Counterparty Payment has been received. If such Counterparty Payment is not timely received, the Funds and Accounts which were expected to be funded by such Counterparty Payment shall be funded in an amount equal to the expected Counterparty Payment on the Distribution Date on which such Counterparty Payment was due and payable pursuant to this subsection (c).
(d) Other Payments from the Collection Fund. Upon receipt of an Issuer Order directing the same, moneys in the Collection Fund shall be used on any date to pay, when due, fees and expenses insofar as the same relate to Financed Eligible Loans and other fees and expenses with respect to the Trust Estate the payment of which is not otherwise provided for in subsection (c) of this Section, including amounts required by the Higher Education Act to be paid to the Department of Education (including, but not limited to, rebate fees owed with respect to consolidation loans) or to be repaid to borrowers (whether or not in the form of a principal reduction of the applicable Financed Eligible Loan), with respect to the Financed Eligible Loans. Upon receipt of an Issuer Order directing the same, moneys in the Collection Fund shall be used, on any date, to fund the acquisition of (i) Add-on Consolidation Loans during the related Add-on Period and (ii) Eligible Loans which constitute serial loans, to the extent moneys are not otherwise available therefor in the Acquisition Fund, subject to the restrictions of Section 5.02(b) hereof.
Section 5.05. Note Payment Fund.
(a) Deposits to the Note Payment Fund. There shall be deposited into the Note Payment Fund, all Recoveries of Principal received by the Indenture Trustee after the Revolving Period and any moneys transferred thereto from the Acquisition Fund pursuant to
Section 5.02 hereof, from the Collection Fund pursuant to Section 5.04 hereof and from the Reserve Fund pursuant to Section 5.07 hereof. Amounts transferred to the Note Payment Fund (i) representing any Class A-1A Notes Interest Distribution Amount and any Reset Rate Notes Carry-over Amount (and interest thereon) on the Class A-1A Notes shall be deposited to the Class A-1A Interest Account, (ii) representing any Class A-1B Notes Interest Distribution Amount and any Reset Rate Notes Carry-over Amount (and interest thereon) on the Class A-1B Notes shall be deposited to the Class A-1B Interest Account, (iii) representing any Class A-2 Notes Interest Distribution Amount and any Reset Rate Notes Carry-over Amount (and interest thereon) on the Class A-2 Notes shall be deposited to the Class A-2 Interest Account, (iv) representing any Class A-3 Notes Interest Distribution Amount and any Reset Rate Notes Carry-over
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Exhibit 4.11
Amount (and interest thereon) on the Class A-3 Notes shall be deposited to the Class A-3 Interest Account, (v) representing any Class B-1 Notes Interest Distribution Amount and any Auction Rate Notes Carry-over Amount (and interest thereon) on the Class B-1 Notes shall be deposited to the Class B-1 Interest Account and (vi) representing any Class B-2 Notes Interest Distribution Amount and any Auction Rate Notes Carry-over Amount (and interest thereon) on the Class B-2 Notes shall be deposited to the Class B-2 Interest Account. Amounts transferred to the Note Payment Fund representing Recoveries of Principal, excess Revenues transferred from the Collection Fund pursuant to Section 5.04(c)(xviii) hereof and any other amount to be used to pay the principal of the Series 2004-1 Notes shall be deposited, first, on a pro rata basis (based upon Outstanding Amounts), to the Class A-1A Redemption Account and the Class A-1B Redemption Account until the amount on deposit in the respective Redemption Accounts equals the Outstanding Amount of the Class A-1A Notes and the Class A-1B Notes, second, to the Class A-2 Redemption Account until the amount on deposit therein equals the Outstanding Amount of the Class A-2 Notes and, third, to the Class A-3 Redemption Account until the amount on deposit therein equals the Outstanding Amount of the Class A-3 Notes; provided, however, upon the Indenture Trustee's receipt of an Issuer Order certifying that the Senior Parity Ratio exceeds 104%, or such other percentage that satisfies the Rating Agency Condition, the Issuer may request, in such Issuer Order, that the Indenture Trustee transfer excess Revenues transferred from the Collection Fund pursuant to
Section 5.04(c)(xviii) hereof to the Class B-1 Redemption Account to redeem Class B-1 Notes and to the Class B-2 Redemption Account to redeem Class B-2 Notes, pro rata, based upon the Outstanding Amounts of each Class of the Class B Notes, without preference or priority of any kind, until the Senior Parity Ratio equals the percentage described in this sentence after giving effect to the proposed redemption of Class B Notes. The Indenture Trustee may conclusively rely upon such certification without duty to know, determine or further examine such Issuer Order. Once the Class A Notes are no longer Outstanding hereunder, amounts transferred to the Note Payment Fund representing Recoveries of Principal, excess Revenues transferred from the Collection Fund pursuant to Section 5.04(c)(xviii) hereof and any other amount to be used to pay the principal of the Series 2004-1 Notes shall be deposited to the Class B-1 Redemption Account to redeem Class B-1 Notes and to the Class B-2 Redemption Account to redeem Class B-2 Notes, pro rata, based upon the Outstanding Amounts of each Class of the Class B Notes, without preference or priority of any kind.
(b) Use of Moneys in the Note Payment Fund. Amounts on deposit
(i) in the Class A-1A Interest Account shall be used to pay the Class A-1A Notes Interest Distribution Amount and any Reset Rate Notes Carry-over Amount (and interest thereon) due and payable on the Class A-1A Notes on each Quarterly Distribution Date, (ii) in the Class A-1B Interest Account shall be used to pay the Class A-1B Notes Interest Distribution Amount and any Reset Rate Notes Carry-over Amount (and interest thereon) due and payable on the Class A-1B Notes on each Quarterly Distribution Date, (iii) in the Class A-2 Interest Account shall be used to pay the Class A-2 Notes Interest Distribution Amount and any Reset Rate Notes Carry-over Amount (and interest thereon) due and payable on the Class A-2 Notes on each Quarterly Distribution Date,
(iv) in the Class A-3 Interest Account shall be used to pay the Class A-3 Notes Interest Distribution Amount and any Reset Rate Notes Carry-over Amount (and interest thereon) due and payable on
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Exhibit 4.11
the Class A-3 Notes on each Quarterly Distribution Date, (v) in the Class B-1 Interest Account shall be used to pay the Class B-1 Notes Interest Distribution Amount and any Auction Rate Notes Carry-over Amount (and interest thereon) due and payable on the Class B-1 Notes on each corresponding Auction Rate Distribution Date and (vi) in the Class B-2 Interest Account shall be used to pay the Class B-2 Notes Interest Distribution Amount and any Auction Rate Notes Carry-over Amount (and interest thereon) due and payable on the Class B-2 Notes on each corresponding Auction Rate Distribution Date. Amounts on deposit in the Class A-1A Redemption Account shall be used to make Principal Reduction Payments on the Class A-1A Notes on the next succeeding Quarterly Distribution Date and to pay the principal amount of the Class A-1A Notes upon their Stated Maturity or upon their redemption in full; provided, however, that if the Class A-1A Notes constitute Non-Amortizing Reset Rate Notes, then the amounts deposited to the Class A-1A Redemption Account shall be retained therein and used to make Principal Reduction Payments on the next succeeding Reset Date for the Class A-1A Notes. Amounts on deposit in the Class A-1B Redemption Account shall be used to make Principal Reduction Payments on the Class A-1B Notes on the next succeeding Quarterly Distribution Date and to pay the principal amount of the Class A-1B Notes upon their Stated Maturity or upon their redemption in full; provided, however, that if the Class A-1B Notes constitute Non-Amortizing Reset Rate Notes, then the amounts deposited to the Class A-1B Redemption Account shall be retained therein and used to make Principal Reduction Payments on the next succeeding Reset Date for the Class A-1B Notes. Amounts on deposit in the Class A-2 Redemption Account shall be used to make Principal Reduction Payments on the Class A-2 Notes on the next succeeding Quarterly Distribution Date and to pay the principal amount of the Class A-2 Notes upon their Stated Maturity or upon their redemption in full; provided, however, that if the Class A-2 Notes constitute Non-Amortizing Reset Rate Notes, then the amounts deposited to the Class A-2 Redemption Account shall be retained therein and used to make Principal Reduction Payments on the next succeeding Reset Date for the Class A-2 Notes. Amounts on deposit in the Class A-3 Redemption Account shall be used to make Principal Reduction Payments on the Class A-3 Notes on the next succeeding Quarterly Distribution Date and to pay the principal amount of the Class A-3 Notes upon their Stated Maturity or upon their redemption in full; provided, however, that if the Class A-3 Notes constitute Non-Amortizing Reset Rate Notes, then the amounts deposited to the Class A-3 Redemption Account shall be retained therein and used to make Principal Reduction Payments on the next succeeding Reset Date for the Class A-3 Notes. Amounts on deposit in the Class B-1 Redemption Account shall be used to make principal payments on the Class B-1 Notes upon their Stated Maturity or upon redemption, in whole or in part. Amounts on deposit in the Class B-2 Redemption Account shall be used to make principal payments on the Class B-2 Notes upon their Stated Maturity or upon redemption, in whole or in part.
Notwithstanding the foregoing, if on any Distribution Date there are not sufficient moneys on deposit in the Collection Fund to make the transfers required by Section 5.04(c)(i) through (ix) hereof, then, any cash or Investment Securities in an amount equal to any such deficiency shall be transferred directly from the Accounts in the Note Payment Fund to the Collection Fund to the extent such deficiency has not been paid from the Acquisition Fund. Any cash or Investment Securities required to be
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Exhibit 4.11
transferred from the Note Payment Fund shall be transferred from the Accounts established therein in the following order of preference:
First, on a pro rata basis, from the Class B-1 Redemption Account and the Class B-2 Redemption Account, second, on a pro rata basis, from the Class B-1 Interest Account and the Class B-2 Interest Account; third, from the Class A-3 Redemption Account (but solely from amounts deposited therein since the preceding Quarterly Distribution Date), fourth, from the Class A-3 Redemption Account (but solely from amounts deposited therein since the preceding Quarterly Distribution Date), fifth, on a pro rata basis, from the Class A-1A Redemption Account and the Class A-1B Redemption Account (but solely from amounts deposited therein since the preceding Quarterly Distribution Date) and, sixth, on a pro rata basis, from the Class A-1A Interest Account, the Class A-1B Interest Account, the Class A-2 Interest Account and the Class A-3 Interest Account; provided, however, cash or Investment Securities may not be removed from the Class B-1 Redemption Account or the Class B-2 Redemption Account if such cash or Investment Securities are required to redeem Auction Rate Notes for which a notice of redemption has been given pursuant to Section 2.09(g) hereof. In addition, (I) any amounts on deposit in the Class A-1A Redemption Account may be used to pay Issuer Derivative Payments (including any Termination Payments) on any Derivative Products corresponding to the Class A-1A Notes to the extent such payments have not been previously paid from amounts on deposit in the Collection Fund or the Acquisition Fund; (II) any amounts on deposit in the Class A-1B Redemption Account may be used to pay Issuer Derivative Payments (including any Termination Payments) on any Derivative Products corresponding to the Class A-1B Notes to the extent such payments have not been previously paid from amounts on deposit in the Collection Fund or the Acquisition Fund; (III) any amounts on deposit in the Class A-2 Redemption Account may be used to pay Issuer Derivative Payments (including any Termination Payments) on any Derivative Products corresponding to the Class A-2 Notes to the extent such payments have not been previously paid from amounts on deposit in the Collection Fund or the Acquisition Fund; and (IV) any amounts on deposit in the Class A-3 Redemption Account may be used to pay Issuer Derivative Payments (including any Termination Payments) on any Derivative Products corresponding to the Class A-3 Notes to the extent such payments have not been previously paid from amounts on deposit in the Collection Fund or the Acquisition Fund.
Section 5.06. Remarketing Fee Fund.
(a) Deposits to the Remarketing Fee Fund. There shall be deposited into the Remarketing Fee Fund the proceeds of the Series 2004-1 Notes set forth in Section 2.11(b) hereof and all amounts transferred thereto from the Collection Fund pursuant to Section 5.04(c)(i) hereof. On each Quarterly Distribution Date, an amount up to the Aggregate Quarterly Funding Amount shall be deposited to the Remarketing Fee Fund pursuant to Section 5.04(c)(i) hereof.
(b) Use of Moneys in the Remarketing Fee Fund. Amounts on deposit in the Remarketing Fee Fund shall be used to pay the Remarketing Fees due on any Class of the Reset Rate Notes on its corresponding Reset Date. If the amount on deposit in the Remarketing Fee Fund on any Quarterly Distribution Date, after the payment of any Remarketing Fees due on such Quarterly Distribution Date, exceeds the sum of the Reset
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Exhibit 4.11
Period Target Amounts for each Class of the Reset Rate Notes, the Issuer may direct the Indenture Trustee to transfer such excess to the Collection Fund on such Quarterly Distribution Date.
Section 5.07. Reserve Fund.
(a) Deposits to the Reserve Fund. The Indenture Trustee shall deposit to the Reserve Fund the proceeds of the Series 2004-1 Notes set forth in Section 2.11(c) hereof. If the Reserve Fund is used for the purposes described in subsection (b) this Section, the Indenture Trustee shall restore the Reserve Fund to the Reserve Fund Requirement with respect thereto by transfers from the Collection Fund on the next Distribution Date pursuant to Section 5.04(c)(ix) hereof. If the full amount required to restore the Reserve Fund to the Reserve Fund Requirement is not available in the Collection Fund on such next succeeding Distribution Date, the Indenture Trustee shall continue to transfer funds from the Collection Fund as they become available and in accordance with Section 5.04(c)(ix) hereof until the deficiency in the Reserve Fund has been eliminated.
(b) Use of Moneys in the Reserve Fund. On each Distribution Date, to the extent there are insufficient moneys in the Collection Fund to make the transfers required by Sections 5.04(c)(i) through (vi) hereof, then, the amount of such deficiency shall be paid directly from the Reserve Fund to the extent such deficiency has not been paid from the Acquisition Fund or the Note Payment Fund. Money in the Reserve Fund may be used to pay principal on the Series 2004-1 Notes only (i) on the date of their Stated Maturity, (ii) upon a redemption in full of the Series 2004-1 Notes or (iii) in connection with the defeasance of this Indenture in accordance with Article X hereof. On the date of redemption of all of the Series 2004-1 Notes, the Indenture Trustee shall transfer all amounts in the Reserve Fund to the Note Payment Fund. On any Distribution Date that the amount in the Reserve Fund exceeds the Reserve Fund Requirement with respect thereto, the Indenture Trustee, at the direction of the Issuer, shall transfer the excess to the Collection Fund.
(c) Substitution of Reserve Fund Surety Bond. The Issuer may substitute for some or all of the cash deposit required to be maintained in the Reserve Fund for a Reserve Fund Surety Bond upon receipt of a Rating Confirmation with respect to such substitution. Any such Reserve Fund Surety Bond shall be delivered to the Indenture Trustee who shall draw upon the Reserve Fund Surety Bond in accordance with its terms and in the manner provided in a Supplemental Indenture. Notwithstanding any of the foregoing, amounts available under any Reserve Fund Surety Bond shall not be used to make any payments with respect to any Derivative Product.
Section 5.08. Supplemental Interest Fund.
(a) Deposits to the Supplemental Interest Fund. Amounts transferred from the Collection Fund to the Supplemental Interest Fund pursuant to Section 5.04(c)(viii) hereof (i) representing a Supplemental Interest Deposit Amount corresponding to amounts on deposit in the Class A-1A Redemption Account shall be deposited to the Class A-1A Supplemental Interest Account, (ii) representing a Supplemental Interest
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Exhibit 4.11
Deposit Amount corresponding to amounts on deposit in the Class A-1B Redemption Account shall be deposited to the Class A-1B Supplemental Interest Account, (iii) representing a Supplemental Interest Deposit Amount corresponding to amounts on deposit in the Class A-2 Redemption Account shall be deposited to the Class A-2 Supplemental Interest Account and(iv) representing a Supplemental Interest Deposit Amount corresponding to amounts on deposit in the Class A-3 Redemption Account shall be deposited to the Class A-3 Supplemental Interest Account.
(b) Use of Moneys in the Supplemental Interest Fund. All amounts on deposit in any Account of the Supplemental Interest Fund shall be transferred to the Collection Fund on each Quarterly Distribution Date.
Section 5.09. Transfers to Issuer. Transfers from the Collection Fund to the Issuer may be made in accordance with Section 5.04(c)(xvii) hereof; provided, however, that no transfer of assets to the Issuer shall be made if there is not on deposit in the Reserve Fund an amount equal to at least the Reserve Fund Requirement; and further provided, that no transfer shall be made to the Issuer unless the Issuer certifies that immediately after taking into account any such transfer, the Total Parity Ratio will be equal to or greater than 101% (the "Asset Release Test"). The Asset Release Test may be modified at any time upon receipt by the Indenture Trustee of a Rating Confirmation.
Section 5.10. Investment of Funds Held by Indenture Trustee. The Indenture Trustee shall invest money held for the credit of any Fund, Account or Subaccount held by the Indenture Trustee hereunder as directed in writing (or orally, confirmed in writing) by an Authorized Representative of the Issuer, to the fullest extent practicable and reasonable, in Investment Securities which shall mature or be redeemed at the option of the holder prior to the respective dates when the money held for the credit of such Fund or Account will be required for the purposes intended. In the absence of any such direction and to the extent practicable, the Indenture Trustee shall invest amounts held hereunder in those Investment Securities described in clause (d) of the definition of the Investment Securities. All income and earning on such investments shall be transferred monthly to the Collection Fund. The Indenture Trustee and the Issuer hereby agree that unless an Event of Default shall have occurred hereunder, the Issuer acting by and through an Authorized Representative shall be entitled to, and shall, provide written direction or oral direction confirmed in writing to the Indenture Trustee with respect to any discretionary acts required or permitted of the Indenture Trustee under any Investment Securities and the Indenture Trustee shall not take such discretionary acts without such written direction.
The Investment Securities purchased shall be held by the Indenture Trustee and shall be deemed at all times to be part of such Fund, Account or Subaccount or combination thereof, and the Indenture Trustee shall inform the Issuer of the details of all such investments. Upon direction in writing from an Authorized Representative of the Issuer, the Indenture Trustee shall use its best efforts to sell at the best price obtainable, or present for redemption, any Investment Securities purchased by it as an investment whenever it shall be necessary to provide money to meet any payment from the applicable Fund, Account or Subaccount. The Indenture Trustee shall advise the Issuer in writing, on or before the fifteenth day of each calendar month (or such later date as reasonably consented to by the Issuer), of all investments held for the credit of each
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Exhibit 4.11
Fund, Account and Subaccount in its custody under the provisions of this Indenture as of the end of the preceding month and the value thereof, and shall list any investments which were sold.
Money in any Fund constituting a part of the Trust Estate may be pooled for the purpose of making investments and may be used to pay accrued interest on Investment Securities purchased. The Indenture Trustee and its affiliates may act as principal or agent in the acquisition or disposition of any Investment Securities.
Notwithstanding the foregoing, the Indenture Trustee shall not be responsible or liable for any losses on investments made by it hereunder or for keeping all Funds held by it, fully invested at all times, its only responsibility being to comply with the investment instructions of the Issuer or its designee in a non-negligent manner, subject to the terms and conditions of Article VII hereof.
The Issuer acknowledges that to the extent the regulations of the Comptroller of the Currency or other applicable regulatory agency grant the Issuer the right to receive brokerage confirmations of security transactions, the Issuer waives receipt of such confirmations.
Section 5.11. Investment Securities. Any investment of funds in Investment Securities shall be held by a financial institution in accordance with the following requirements:
(a) all Investment Securities shall be held in an account with such financial institution in the name of the Indenture Trustee;
(b) all Investment Securities held in such account shall be delivered to the Indenture Trustee in the following manner:
(i) with respect to bankers' acceptances, commercial paper, negotiable certificates of deposit and other obligations that constitute "instruments" within the meaning of Section 9-102(a)(47) of the UCC (other than certificated securities) and are susceptible of physical delivery, transferred to the Indenture Trustee by physical delivery to the Indenture Trustee, endorsed to, or registered in the name of, the Indenture Trustee or its nominee or endorsed in blank; or such additional or alternative procedures as may hereafter become appropriate to effect the complete transfer of ownership of any such Investment Securities to the Indenture Trustee free of any adverse claims, consistent with changes in applicable law or regulations or the interpretation thereof;
(ii) with respect to a "certificated security" (as defined in Section 8-102(a)(4) of the UCC), transferred:
(A) by physical delivery of such certificated security to the Indenture Trustee, provided that if the certificated security is in registered form, it shall be endorsed to, or registered in the name of, the Indenture Trustee or endorsed in blank;
(B) by physical delivery of such certificated security in registered form to a "securities intermediary" (as defined in
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Exhibit 4.11
Section 8-102(a)(14) of the UCC) acting on behalf of the Indenture Trustee if the certificated security has been specially endorsed to the Indenture Trustee by an effective endorsement;
(iii) with respect to any security issued by the U.S. Treasury, the Federal Home Loan Mortgage Corporation or by the Federal National Mortgage Association that is a book entry security held through the Federal Reserve System pursuant to Federal book entry regulations, the following procedures, all in accordance with applicable law, including applicable federal regulations and Articles 8 and 9 of the UCC: book entry registration of such property to an appropriate book entry account maintained with a Federal Reserve Bank by a securities intermediary which is also a "depositary" pursuant to applicable federal regulations and issuance by such securities intermediary of a deposit advice or other written confirmation of such book entry registration to the Indenture Trustee of the purchase by the securities intermediary on behalf of the Indenture Trustee of such book entry security; the making by such securities intermediary of entries in its books and records identifying such book entry security held through the Federal Reserve System pursuant to Federal book entry regulations as belonging to the Indenture Trustee and indicating that such securities intermediary holds such book entry security solely as agent for the Indenture Trustee; or such additional or alternative procedures as may hereafter become appropriate to effect complete transfer of ownership of any such Investment Securities to the Indenture Trustee free of any adverse claims, consistent with changes in applicable law or regulations or the interpretation thereof;
(iv) with respect to any "uncertificated security" (as defined in Section 8-102(a)(18) of the UCC) that is not governed by clause (iii) above, transferred:
(A) (1) by registration to the Indenture Trustee as the registered owner thereof, on the books and records of the issuer thereof; or
(2) by registration to another Person (not a securities intermediary) that either becomes the registered owner of the uncertificated security on behalf of the Indenture Trustee or, having become the registered owner, acknowledges that it holds for the Indenture Trustee; or
(B) by the issuer thereof having agreed that it will comply with instructions originated by the Indenture Trustee without further consent of the registered owner thereof;
(v) with respect to any "security entitlement" (as defined in Section 8-102(a)(17) of the UCC):
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Exhibit 4.11
(A) if a securities intermediary
(1) indicates by book entry that a "financial asset" (as defined in Section 8-102(a)(9) of the UCC) has been credited to the Indenture Trustee's "securities account" (as defined in Section 8-501(a) of the UCC);
(2) receives a financial asset (as so defined) from the Indenture Trustee or acquires a financial asset for the Indenture Trustee, and, in either case, accepts it for credit to the Indenture Trustee's securities account (as so defined);
(3) becomes obligated under other law, regulation or rule to credit a financial asset to the Indenture Trustee's securities account; or
(4) has agreed that it will comply with "entitlement orders" (as defined in
Section 8-102(a)(8) of the UCC) originated by the Indenture Trustee, without further consent by the "entitlement holder" (as defined in Section 8-102(a)(7) of the UCC); and
(B) such financial asset either is such Investment Security or a security entitlement evidencing a claim thereto; and
(vi) in each case of delivery contemplated pursuant to clauses (i) through (v) above, the Indenture Trustee shall make appropriate notations on its records, and shall cause the same to be made on the records of its nominees, indicating that such Investment Security is held in trust pursuant to and as provided in this Indenture.
Any cash held by the Indenture Trustee shall be considered a "financial asset" for purposes of this paragraph. Subject to the other provisions hereof, the Indenture Trustee shall have sole control over each such investment and the income thereon, and any certificate or other instrument evidencing any such investment, if any, shall be delivered directly to the Indenture Trustee or its agent, together with each document of transfer, if any, necessary to transfer title to such investment to the Indenture Trustee in a manner which complies with this paragraph.
The Indenture Trustee agrees that it has no security interest or other adverse claim to the Funds, Accounts and Subaccounts or the Investment Securities therein that are part of the Trust Estate other than pursuant to this Indenture and that it will not enter into any agreement that would give any Person or entity other than the Indenture Trustee the right to give entitlement orders with respect to such Investment Securities or the Funds, Accounts and Subaccounts.
Section 5.12. Release; Sale of Financed Eligible Loans.
(a) The Indenture Trustee shall, upon Issuer Order and subject to the provisions of this Indenture, take all actions reasonably necessary to effect the release of
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any Financed Eligible Loans from the lien of this Indenture to the extent required by the Higher Education Act or other applicable laws.
(b) Subject to the payment of its fees and expenses pursuant to Sections 7.05 and 7.07 hereof, the Indenture Trustee may, and when required by the provisions of this Indenture shall, execute instruments to release property from the lien of this Indenture, or convey the Indenture Trustee's interest in the same, in a manner and under circumstances that are not inconsistent with the provisions of this Indenture. No party relying upon an instrument executed by the Indenture Trustee as provided in this Article shall be bound to ascertain the Indenture Trustee's authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys.
(c) The Indenture Trustee shall, at such time as there are no Series 2004-1 Notes Outstanding and all sums due the Indenture Trustee pursuant to Sections 7.05 and 7.07 hereof and all amounts payable to any Servicer, the Administrator, the Auction Agent, the Broker-Dealers, the Remarketing Agents and the Counterparties have been paid, release any remaining portion of the Trust Estate that secured the Series 2004-1 Notes from the lien of this Indenture and release to the Issuer or any other Person entitled thereto any funds then on deposit in the Funds and Accounts. The Indenture Trustee shall release property from the lien of this Indenture pursuant to this subsection (c) only upon receipt of an Issuer Order.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01. Events of Default Defined. For the purpose of this Indenture, the following events are hereby defined as, and are declared to be, "Events of Default":
(a) default in the due and punctual payment of the interest on any of the Class A Notes when due and payable, and such default shall continue for a period of five (5) days;
(b) default in the due and punctual payment of the principal on any of the Class A Notes when due and payable or failure to make any payment due under any other Senior Obligations hereunder when due (other than the failure to make Principal Reduction Payments);
(c) if no Senior Obligations are Outstanding hereunder, default in the due and punctual payment of the interest on any of the Class B Notes when due and payable, and such default shall continue for a period of five (5) days;
(d) if no Senior Obligations are Outstanding hereunder, default in the due and punctual payment of the principal on any of the Class B Notes when due and payable or failure to make any payment due under any other Subordinate Obligations when due;
(e) default in the performance or observance of any other of the covenants, agreements, or conditions on the part of the Issuer to be kept, observed, and performed
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contained in this Indenture or in the Series 2004-1 Notes, and continuation of such default for a period of 90 days after written notice thereof by the Indenture Trustee to the Issuer; and
(f) the occurrence of an Event of Bankruptcy with respect to the Issuer.
Failure to pay any Reset Rate Notes Carry-over Amount, any Auction Rate Notes Carry-over Amount or any interest on such Reset Rate Notes Carry-over Amount or Auction Rate Notes Carry-over Amount shall not constitute an Event of Default.
Any notice herein provided to be given to the Issuer with respect to any default shall be deemed sufficiently given if sent by certified mail with postage prepaid to the Person to be notified, addressed to such Person at the post office address as shown in Section 9.01 hereof or such other address as may hereafter be given as the principal office of the Issuer in writing to the Indenture Trustee by an Authorized Representative of the Issuer. The Indenture Trustee shall give such notice if requested to do so in writing by the Registered Owners of at least a majority of the principal amount of the Highest Priority Obligations at the time Outstanding ("Registered Owner Approval").
Section 6.02. Remedy on Default; Possession of Trust Estate. Subject to
Section 6.09 hereof, upon the happening and continuance of any Event of Default, the Indenture Trustee personally or by its attorneys or agents may enter into and upon and take possession of such portion of the Trust Estate as shall be in the custody of others, and all property comprising the Trust Estate, and each and every part thereof, and exclude the Issuer and its agents, servants, and employees wholly therefrom, and have, hold, use, operate, manage and control the same and each and every part thereof, and in the name of the Issuer or otherwise, as they shall deem best, conduct the business thereof and exercise the privileges pertaining thereto and all the rights and powers of the Issuer and use all of the then existing Trust Estate for that purpose, and collect and receive all charges, income and Revenue of the same and of every part thereof, and after deducting therefrom all Program Expenses incurred hereunder and all other proper outlays herein authorized, and all payments which may be made as just and reasonable compensation for its own services, and for the services of its attorneys, agents, and assistants, the Indenture Trustee shall apply the rest of the money received by the Indenture Trustee as follows: first, to the payment of the interest in default on the Class A Notes and all Issuer Derivative Payments (excluding all Termination Payments other than Priority Termination Payments) which are paid on a parity with interest on the Class A Notes then due, in the order of the maturity of the installments thereof, with interest on overdue installments thereof at the same rates, respectively, as were borne by the Class A Notes on which such interest shall be in default and with respect to such Issuer Derivative Payments then due as provided in the ISDA Master Agreement, as the case may be, such payments to be made ratably to the parties entitled thereto without discrimination or preference, second, to the payment of the principal of all Class A Notes then due, such payments to be made ratably to the parties entitled thereto without discrimination or preference, third, to the payment of the interest in default on the Class B Notes and all Issuer Derivative Payments (excluding all Termination Payments other than Priority Termination Payments) which are paid on a parity with interest on the Class B Notes then due, in the order of the maturity of the installments thereof with interest on overdue installments thereof at the same rates, respectively, as were borne by the Class B Notes on which such interest shall be in default
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and with respect to such Issuer Derivative Payments then due as provided in the ISDA Master Agreement, as the case may be, such payments to be made ratably to the parties entitled thereto without discrimination or preference, fourth, to the payment of the principal of all Class B Notes then due, such payments to be made ratably to the parties entitled thereto without discrimination or preference, fifth, to pay Reset Rate Notes Carry-over Amounts (and any accrued interest thereon) on the Class A Notes, such payments to be made ratably to the parties entitled thereto without discrimination or preference, sixth, to pay Auction Rate Notes Carry-over Amounts (and any accrued interest thereon) on the Class B Notes, such payments to be made ratably to the parties entitled thereto without discrimination or preference, seventh, to pay unpaid amounts (including Termination Payments) under a Derivative Product on which the Issuer Derivative Payments thereunder are paid on a parity with interest on the Class A Notes, such payments to be made ratably to the parties entitled thereto without discrimination or preference, eighth, to pay unpaid amounts (including Termination Payments) under a Derivative Product on which the Issuer Derivative Payments thereunder are paid on a parity with interest on the Class B Notes, such payments to be made ratably to the parties entitled thereto without discrimination or preference, and, ninth, to the Administrator, to reimburse it for any amounts paid by it to the Remarketing Agents pursuant to the Remarketing Agreement.
Section 6.03. Remedies on Default; Advice of Counsel. Upon the happening of any Event of Default, the Indenture Trustee may proceed to protect and enforce the rights of the Indenture Trustee and the Registered Owners in such manner as counsel for the Indenture Trustee may advise, whether for the specific performance of any covenant, condition, agreement or undertaking herein contained, or in aid of the execution of any power herein granted, or for the enforcement of such other appropriate legal or equitable remedies as, in the opinion of such counsel, may be more effectual to protect and enforce the rights aforesaid.
Section 6.04. Remedies on Default; Sale of Trust Estate. Upon the happening of any Event of Default and if the principal of all of the Outstanding Obligations shall have been declared due and payable, then and in every such case, and irrespective of whether other remedies authorized shall have been pursued in whole or in part, the Indenture Trustee may sell, with or without entry, to the highest bidder the Trust Estate, and all right, title, interest, claim and demand thereto and the right of redemption thereof, at any such place or places, and at such time or times and upon such notice and terms as may be required by law. Upon such sale the Indenture Trustee may make and deliver to the purchaser or purchasers a good and sufficient assignment or conveyance for the same, which sale shall be a perpetual bar both at law and in equity against the Issuer and all Persons claiming such properties. No purchaser at any sale shall be bound to see to the application of the purchase money or to inquire as to the authorization, necessity, expediency or regularity of any such sale. The Indenture Trustee is hereby irrevocably appointed the true and lawful attorney-in-fact of the Issuer, in its name and stead, to make and execute all bills of sale, instruments of assignment and transfer and such other documents of transfer as may be necessary or advisable in connection with a sale of all or part of the Trust Estate, but the Issuer, if so requested by the Indenture Trustee, shall ratify and confirm any sale or sales by executing and delivering to the Indenture Trustee or to such purchaser or purchasers all such instruments as may be necessary, or in the judgment of the Indenture Trustee, proper for the purpose which may be designated in such request. In addition, the Indenture Trustee may proceed to protect and enforce the rights of the Indenture Trustee and the Registered Owners of the Obligations in such manner as counsel for the Indenture Trustee may advise, whether for the
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Exhibit 4.11
specific performance of any covenant, condition, agreement or undertaking herein contained, or in aid of the execution of any power herein granted, or for the enforcement of such other appropriate legal or equitable remedies as may in the opinion of such counsel, be more effectual to protect and enforce the rights aforesaid. The Indenture Trustee shall take any such action or actions if requested to do so in writing by the Registered Owners of at least a majority of the principal amount of the Highest Priority Obligations at the time Outstanding.
Notwithstanding the foregoing, the Indenture Trustee is prohibited from selling the Financed Eligible Loans following an Event of Default, other than a default in the payment of any principal or interest on any Series 2004-1 Note, unless:
(a) The Registered Owners of all of the Highest Priority Obligations at the time Outstanding consent to such a sale;
(b) The proceeds of such a sale will be sufficient to discharge all the Outstanding Obligations pursuant to Article X hereof at the date of such a sale; or
(c) The Administrator determines that the collections on the Financed Eligible Loans would not be sufficient on an ongoing basis to make all payments on such Obligations as such payments would have become due if such Obligations had not been declared due and payable, and the Indenture Trustee obtains the consent of the Registered Owners of at least 66-2/3% of the aggregate principal amount of the Highest Priority Obligations at the time Outstanding.
Such a sale shall also require the consent of all the Registered Owners of the Subordinate Obligations unless the proceeds of such a sale would be sufficient to discharge the Subordinate Obligations pursuant to Article X hereof at the date of such a sale.
Section 6.05. Appointment of Receiver. In case an Event of Default occurs, and if all of the Outstanding Obligations shall have been declared due and payable and in case any judicial proceedings are commenced to enforce any right of the Indenture Trustee or of the Registered Owners under this Indenture or otherwise, then as a matter of right, the Indenture Trustee shall be entitled to the appointment of a receiver of the Trust Estate and of the earnings, income or Revenue, rents, issues and profits thereof with such powers as the court making such appointments may confer.
Section 6.06. Restoration of Position. In case the Indenture Trustee shall have proceeded to enforce any rights under this Indenture by sale or otherwise, and such proceedings shall have been discontinued, or shall have been determined adversely to the Indenture Trustee, then and in every such case to the extent not inconsistent with such adverse decree, the Issuer, the Indenture Trustee and the Registered Owners shall be restored to their former respective positions and the rights hereunder in respect to the Trust Estate, and all rights, remedies, and powers of the Indenture Trustee and of the Registered Owners shall continue as though no such proceeding had been taken.
Section 6.07. Purchase of Properties by Indenture Trustee or Registered Owners. In case of any such sale of the Trust Estate, any Registered Owner or Registered Owners or committee of Registered Owners or the Indenture Trustee, may bid for and purchase such
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Exhibit 4.11
property and upon compliance with the terms of sale may hold, retain possession, and dispose of such property as the absolute right of the purchaser or purchasers without further accountability and shall be entitled, for the purpose of making any settlement or payment for the property purchased, to use and apply any Obligations hereby secured and any interest thereon due and unpaid, by presenting such Obligations in order that there may be credited thereon the sum apportionable and applicable thereto out of the net proceeds of such sale, and thereupon such purchaser or purchasers shall be credited on account of such purchase price payable to him or them with the sum apportionable and applicable out of such net proceeds to the payment of or as a credit on the Obligations so presented.
Section 6.08. Application of Sale Proceeds. The proceeds of any sale of the Trust Estate, together with any funds at the time held by the Indenture Trustee and not otherwise appropriated, shall be applied by the Indenture Trustee as set forth in Section 6.02 hereof, and then to the Issuer or whomsoever shall be lawfully entitled thereto.
Section 6.09. Accelerated Maturity. If an Event of Default shall have occurred and be continuing, the Indenture Trustee may declare, or upon the written direction by the Registered Owners of at least 66% of the principal amount of the Highest Priority Obligations then Outstanding, shall declare, the principal of all Obligations then Outstanding, and the interest thereon, if not previously due, immediately due and payable, anything in the Obligations or this Indenture to the contrary notwithstanding; provided, however, that for a declaration of acceleration upon a default pursuant to Section 6.01(e) hereof shall require the consent of a majority of the Registered Owners of the principal amount of the Highest Priority Obligations then Outstanding.
Section 6.10. Remedies Not Exclusive. The remedies herein conferred upon or reserved to the Indenture Trustee or the Registered Owners of Obligations are not intended to be exclusive of any other remedy, but each remedy herein provided shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing, and every power and remedy hereby given to the Indenture Trustee or to the Registered Owners of Obligations, or any supplement hereto, may be exercised from time to time as often as may be deemed expedient. No delay or omission of the Indenture Trustee or of any Registered Owner of Obligations to exercise any power or right arising from any default hereunder shall impair any such right or power or shall be construed to be a waiver of any such default or to be acquiescence therein.
Section 6.11. Direction of Indenture Trustee. Upon the happening of any Event of Default, the Registered Owners of at least a majority of the principal amount of the Highest Priority Obligations then Outstanding, shall have the right by an instrument or instruments in writing delivered to the Indenture Trustee to direct and control the Indenture Trustee as to the method of taking any and all proceedings for any sale of any or all of the Trust Estate, or for the appointment of a receiver, if permitted by law, and may at any time cause any proceedings authorized by the terms hereof to be so taken or to be discontinued or delayed; provided, however, that such Registered Owners shall not be entitled to cause the Indenture Trustee to take any proceedings which in the Indenture Trustee's opinion would be unjustly prejudicial to non-assenting Registered Owners of Obligations, but the Indenture Trustee shall be entitled to assume that the action requested by the Registered Owners of at least a majority of the principal
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Exhibit 4.11
amount of the Highest Priority Obligations then Outstanding will not be prejudicial to any non-assenting Registered Owners unless the Registered Owners of at least a majority of the principal amount of the non-assenting Registered Owners of such Obligations, in writing, show the Indenture Trustee how they will be prejudiced. Anything in this Indenture to the contrary notwithstanding, the Registered Owners of at least a majority of the principal amount of the Highest Priority Obligations then Outstanding together with the Registered Owners of a majority of the collective aggregate principal amount of all other Obligations then Outstanding shall have the right, at any time, by an instrument or instruments in writing executed and delivered to the Indenture Trustee, to direct the method and place of conducting all proceedings to be taken in connection with the enforcement of the terms and conditions of this Indenture, or for the appointment of a receiver or any other proceedings hereunder, provided that such direction shall not be otherwise than in accordance with the provisions of law and of this Indenture. The provisions of this Section shall be expressly subject to the provisions of Sections 7.01(c) and 7.05 hereof.
Section 6.12. Right to Enforce in Indenture Trustee. No Registered Owner of any Obligation shall have any right as such Registered Owner to institute any suit, action, or proceedings for the enforcement of the provisions of this Indenture or for the execution of any trust hereunder or for the appointment of a receiver or for any other remedy hereunder, all rights of action hereunder being vested exclusively in the Indenture Trustee, unless and until the Indenture Trustee fails to institute an action or suit after (a) the Registered Owners of at least 25% of the Series 2004-1 Notes shall have previously given to the Indenture Trustee written notice of a default hereunder, and of the continuance thereof; (b) the Registered Owners of at least 25% of the Series 2004-1 Notes shall have made written request upon the Indenture Trustee and the Indenture Trustee shall have been afforded reasonable opportunity to institute such action, suit or proceeding in its own name; and (c) the Indenture Trustee shall have been offered indemnity and security satisfactory to it against the costs, expenses, and liabilities to be incurred therein or thereby, which offer of indemnity shall be an express condition precedent hereunder to any obligation of the Indenture Trustee to take any such action hereunder, and the Indenture Trustee for 30 days after receipt of such notification, request, and offer of indemnity, shall have failed to institute any such action, suit or proceeding. It is understood and intended that no one or more Registered Owners of the Obligations shall have the right in any manner whatever by his or their action to affect, disturb, or prejudice the lien of this Indenture or to enforce any right hereunder except in the manner herein provided and for the equal benefit of the Registered Owners of not less than a majority of the collective aggregate principal amount of the Obligations then Outstanding.
The Indenture Trustee, solely in its capacity as trustee hereunder, and the Registered Owners covenant that they will not at any time institute against the Issuer any bankruptcy, reorganization or other proceeding under any federal or state bankruptcy or similar law.
Section 6.13. Physical Possession of Obligations not Required. In any suit or action by the Indenture Trustee arising under this Indenture or on all or any of the Obligations issued hereunder, or any supplement hereto, the Indenture Trustee shall not be required to produce such Obligations, but shall be entitled in all things to maintain such suit or action without their production.
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Section 6.14. Waivers of Events of Default. The Indenture Trustee may in its discretion waive any Event of Default hereunder and its consequences and rescind any declaration of acceleration of Obligations, and shall do so upon the written request of the Registered Owners of at least a majority of the principal amount of the Highest Priority Obligations then Outstanding; provided, however, that there shall not be waived (a) any Event of Default in the payment of the principal of or premium on any Outstanding Obligations at the date of maturity or redemption thereof, or any default in the payment when due of the interest on any such Obligations, unless prior to such waiver or rescission, all arrears of interest or all arrears of payments of principal and premium, if any, and all fees, expenses of the Indenture Trustee, in connection with such default shall have been paid or provided for or (b) any default in the payment of amounts set forth in Section 7.05 hereof. In case of any such waiver or rescission, or in case any proceedings taken by the Indenture Trustee on account of any such default shall have been discontinued or abandoned or determined adversely to the Indenture Trustee, then and in every such case the Issuer, the Indenture Trustee and the Registered Owners of Obligations shall be restored to their former positions and rights hereunder respectively, but no such waiver or rescission shall extend to or affect any subsequent or other default, or impair any rights or remedies consequent thereon.
Section 6.15. Notice of Defaults. Within 90 days after the occurrence of any default hereunder with respect to the Series 2004-1 Notes, the Indenture Trustee shall transmit notice of such default hereunder to which an authorized officer of the Indenture Trustee has actual knowledge or is in receipt of a written notice thereof in accordance with the terms of this Indenture, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest with respect to any Series 2004-1 Note, or in the payment of any sinking fund installment with respect to the Series 2004-1 Notes, the Indenture Trustee shall be protected in withholding such notice if and so long as an authorized officer of the Indenture Trustee in good faith determines that the withholding of such notice is in the interest of the Registered Owners of the Series 2004-1 Notes. For the purpose of this Section, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to the Series 2004-1 Notes.
ARTICLE VII
THE INDENTURE TRUSTEE
Section 7.01. Acceptance of Trust. The Indenture Trustee hereby accepts the trusts imposed upon it by this Indenture, and agrees to perform said trusts, but only upon and subject to the following terms and conditions:
(a) Except during the continuance of an Event of Default,
(i) the Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee may conclusively rely, as to the truth of the statements and the correctness of the
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opinions expressed therein, upon certificates or opinions furnished to the Indenture Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Indenture Trustee, the Indenture Trustee shall be under a duty to examine the same to determine whether or not they conform as to form with the requirements of this Indenture and whether or not they contain the statements required under this Indenture.
(b) In case an Event of Default has occurred and is continuing, the Indenture Trustee, in exercising the rights and powers vested in it by this Indenture, shall use the same degree of care and skill in their exercise as a prudent corporate indenture trustee would exercise or use under the circumstances.
(c) Before taking any action hereunder requested by Registered Owners, the Indenture Trustee may require that it be furnished an indemnity bond or other indemnity and security satisfactory to it by the Registered Owners, as applicable, for the reimbursement of all expenses to which it may be put and to protect it against all liability.
Section 7.02. Recitals of Others. The recitals, statements, and representations set forth herein and in the Series 2004-1 Notes shall be taken as the statements of the Issuer, and the Indenture Trustee assumes no responsibility for the correctness of the same. The Indenture Trustee makes no representations as to the title of the Issuer in the Trust Estate or as to the security afforded thereby and hereby, or as to the validity or sufficiency of this Indenture or of the Series 2004-1 Notes issued hereunder, and the Indenture Trustee shall incur no responsibility in respect of such matters.
Section 7.03. As to Filing of Indenture. The Indenture Trustee shall be under no duty (a) to file or record, or cause to be filed or recorded, this Indenture or any instrument supplemental hereto, (b) or to procure any further order or additional instruments of further assurance, (c) to see to the delivery to it of any personal property intended to be mortgaged or pledged hereunder or thereunder, (d) or to do any act which may be suitable to be done for the better maintenance of the lien or security hereof, or (e) for giving notice of the existence of such lien, or for extending or supplementing the same or to see that any rights to Revenue and Funds intended now or hereafter to be transferred in trust hereunder are subject to the lien hereof. The Indenture Trustee shall not be liable for failure of the Issuer to pay any tax or taxes in respect of such property, or any part thereof, or the income therefrom or otherwise, nor shall the Indenture Trustee be under any duty in respect of any tax which may be assessed against it or the Registered Owners in respect of such property or pledged Revenue and Funds.
Section 7.04. Indenture Trustee May Act Through Agents. The Indenture Trustee may execute any of the trusts or powers hereof and perform any duty hereunder, either itself or by or through its attorneys, agents, or employees, and it shall not be answerable or accountable for any default, neglect, or misconduct of any such attorneys, agents, or employees, if reasonable care has been exercised in the appointment, supervision, and monitoring of the work performed. All reasonable costs incurred by the Indenture Trustee and all reasonable compensation to all such persons as may reasonably be employed in connection with the trusts hereof shall be paid by the Issuer.
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Section 7.05. Indemnification of Indenture Trustee. Other than with respect to its duties to make payment on the Obligations when due, and its duty to pursue the remedy of acceleration as provided in Section 6.02 hereof, for each of which no additional security or indemnity may be required, the Indenture Trustee shall be under no obligation or duty to perform any act at the request of Registered Owners or to institute or defend any suit in respect thereof unless properly indemnified and provided with security to its satisfaction as provided in Section 7.01(c) hereof. The Indenture Trustee shall not be required to take notice, or be deemed to have knowledge, of any default or Event of Default of the Issuer or the Board of Directors hereunder and may conclusively assume that there has been no such default or Event of Default (other than an Event of Default described in Sections 6.01(a) through (d) hereof) unless and until it shall have been specifically notified in writing at the address in
Section 9.01 hereof of such default or Event of Default by (a) the Registered Owners of the required percentages in principal amount of the Obligations then Outstanding hereinabove specified or (b) an Authorized Representative of the Issuer. However, the Indenture Trustee may begin suit, or appear in and defend suit, execute any of the trusts hereby created, enforce any of its rights or powers hereunder, or do anything else in its judgment proper to be done by it as Indenture Trustee, without assurance of reimbursement or indemnity, and in such case the Indenture Trustee shall be reimbursed or indemnified by the Registered Owners requesting such action, if any, or the Issuer in all other cases, for all fees, costs and expenses, liabilities, outlays and counsel fees and other reasonable disbursements properly incurred in connection therewith, unless such costs and expenses, liabilities, outlays and attorneys' fees and other reasonable disbursements properly incurred in connection therewith are adjudicated to have resulted from the negligence or willful misconduct of the Indenture Trustee. In furtherance and not in limitation of this Section, the Indenture Trustee shall not be liable for, and shall be held harmless by the Issuer from, following any Orders, instructions or other directions upon which the Indenture Trustee is authorized to rely pursuant to this Indenture or any other agreement to which it is a party. If the Issuer or the Registered Owners, as appropriate, shall fail to make such reimbursement or indemnification, the Indenture Trustee may reimburse itself from any money in its possession under the provisions of this Indenture, subject only to the prior lien of the Obligations for the payment of the principal thereof, premium, if any, and interest thereon from the Collection Fund. None of the provisions contained in this Indenture or any other agreement to which it is a party shall require the Indenture Trustee to act or to expend or risk its own funds or otherwise incur individual financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if the Registered Owners shall not have offered security and indemnity acceptable to it or if it shall have reasonable grounds for believing that prompt repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
The Issuer agrees to indemnify the Indenture Trustee for, and to hold it harmless against, any loss, liability or expenses incurred by the Indenture Trustee on, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder arising from the Trust Estate, unless such losses, liabilities and expenses are adjudicated to have resulted from the negligence or willful misconduct of the Indenture Trustee. The Issuer agrees to indemnify and hold harmless the Indenture Trustee against any and all claims, demands, suits, actions or other proceedings and all liabilities, costs and expenses whatsoever caused by any untrue statement or misleading statement or alleged untrue statement or alleged misleading statement of a material
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fact contained in any offering document distributed in connection with the issuance of the Series 2004-1 Notes or caused by any omission or alleged omission from such offering document of any material fact required to be stated therein or necessary in order to make the statements made therein in the light of the circumstances under which they were made, not misleading.
Section 7.06. Indenture Trustee's Right to Reliance. The Indenture Trustee shall be protected in acting upon any notice, resolution, request, consent, order, certificate, report, appraisal, opinion, report or document of the Issuer or a Servicer or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Indenture Trustee may consult with experts and with counsel (who may but need not be counsel for the Issuer, the Indenture Trustee, or for a Registered Owner or who may be Note Counsel), and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered, and in respect of any determination made by it hereunder in good faith and in accordance with the opinion of such counsel.
Whenever in the administration hereof the Indenture Trustee shall reasonably deem it desirable that a matter be proved or established prior to taking, suffering, or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon a certificate signed by an Authorized Representative of the Issuer or an authorized officer of the Servicer.
The Indenture Trustee shall not be liable for any action taken, suffered, or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it hereby; provided, however, that the Indenture Trustee shall be liable for its negligence or willful misconduct in taking such action, subject to the terms and conditions of this Article.
The Indenture Trustee is authorized, under this Indenture, subject to
Section 5.02 hereof, to sell, assign, transfer or convey Financed Eligible Loans in accordance with an Issuer Order. If such Financed Eligible Loan was originated under the Higher Education Act, such Issuer Order shall certify that the Person to whom such Financed Eligible Loan is sold, assigned, transferred, or conveyed is an Eligible Lender unless not required by the Higher Education Act. The Indenture Trustee is further authorized to enter into agreements with other Persons, in its capacity as Indenture Trustee, in order to carry out or implement the terms and provisions of this Indenture.
The Indenture Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken in good faith in accordance with this Indenture or any other transaction document or at the direction of the Registered Owners evidencing the appropriate percentage of the aggregate principal amount of the Outstanding Series 2004-1 Notes relating to the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Indenture Trustee, under this Indenture or any other transaction document.
Section 7.07. Compensation of Indenture Trustee. Except as otherwise expressly provided herein, all advances, counsel fees (including without limitation allocated fees of in-house counsel) and other expenses reasonably made or incurred by the Indenture Trustee in
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and about the execution and administration of the trust hereby created and reasonable compensation to the Indenture Trustee for its services in the premises shall be paid by the Issuer. The compensation of the Indenture Trustee shall not be limited to or by any provision of law in regard to the compensation of trustees of an express trust. If not paid by the Issuer, the Indenture Trustee shall have a lien against all money held pursuant to this Indenture, subject only to the prior lien of the Obligations against the money and investments in the Collection Fund for the payment of the principal thereof, premium, if any, and interest thereon, for such reasonable compensation, expenses, advances and counsel fees incurred in and about the execution of the trusts hereby created and the exercise and performance of the powers and duties of the Indenture Trustee hereunder and the cost and expense incurred in defending against any liability in the premises of any character whatsoever (unless such liability is adjudicated to have resulted from the negligence or willful misconduct of the Indenture Trustee).
Section 7.08. Indenture Trustee May Own Series 2004-1 Notes. The Indenture Trustee hereunder, or any successor Indenture Trustee, in its individual or other capacity, may become the owner or pledgee of Series 2004-1 Notes and may otherwise deal with the Issuer, with the same rights it would have if it were not the Indenture Trustee. The Indenture Trustee may act as depository for, and permit any of its officers or directors to act as a member of, or act in any other capacity in respect to, any committee formed to protect the rights of the Registered Owners or to effect or aid in any reorganization growing out of the enforcement of the Series 2004-1 Notes or of this Indenture, whether or not any such committee shall represent the Registered Owners of more than 60% of the collective aggregate principal amount of the Outstanding Obligations.
Section 7.09. Resignation of Indenture Trustee. The Indenture Trustee and any successor to the Indenture Trustee may resign and be discharged from the trust created by this Indenture by giving to the Issuer notice in writing which notice shall specify the date on which such resignation is to take effect; provided, however, that such resignation shall only take effect on the day specified in such notice if a successor Indenture Trustee shall have been appointed pursuant to Section 7.11 hereof (and is qualified to be the Indenture Trustee under the requirements of Section 7.11 hereof). If no successor Indenture Trustee has been appointed by the date specified or within a period of 90 days from the receipt of the notice by the Issuer, whichever period is the longer, the Indenture Trustee may (a) appoint a temporary successor Indenture Trustee having the qualifications provided in Section 7.11 hereof or (b) request a court of competent jurisdiction to (i) require the Issuer to appoint a successor, as provided in Section 7.11 hereof, within three days of the receipt of citation or notice by the court, or (ii) appoint a Indenture Trustee having the qualifications provided in Section 7.11 hereof. In no event may the resignation of the Indenture Trustee be effective until a qualified successor Indenture Trustee shall have been selected and appointed. In the event a temporary successor Indenture Trustee is appointed pursuant to clause (a) above, the Board of Directors may remove such temporary successor Indenture Trustee and appoint a successor thereto pursuant to Section 7.11 hereof.
Section 7.10. Removal of Indenture Trustee. The Indenture Trustee or any successor Indenture Trustee may be removed (a) at any time by the Registered Owners of a majority of the collective aggregate principal amount of the Highest Priority Obligations then Outstanding, (b) by the Issuer for cause or (c) by the Issuer without cause so long as no Event of Default as
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Exhibit 4.11
described in Sections 6.01(a), (b), (c), (d) or (f) exists or has existed within the last 30 days, in each case upon payment to the Indenture Trustee so removed of all money then due to it hereunder and appointment of a successor thereto by the Issuer and acceptance thereof by said successor. One copy of any such order of removal shall be filed with the President of the Issuer and the other with the Indenture Trustee so removed.
In the event an Indenture Trustee (or successor Indenture Trustee) is removed, by any person or for any reason permitted hereunder, such removal shall not become effective until (a) in the case of removal by the Registered Owners, such Registered Owners by instrument or concurrent instruments in writing
(signed and acknowledged by such Registered Owners or their attorneys-in-fact)
filed with the Indenture Trustee removed have appointed a successor Indenture Trustee or otherwise the Issuer shall have appointed a successor, and (b) the successor Indenture Trustee has accepted appointment as such.
Section 7.11. Successor Indenture Trustee. In case at any time the Indenture Trustee or any successor Indenture Trustee shall resign, be dissolved, or otherwise shall be disqualified to act or be incapable of acting, or in case control of the Indenture Trustee or of any successor Indenture Trustee or of its officers shall be taken over by any public officer or officers, a successor Indenture Trustee may be appointed by the Board of Directors by an instrument in writing duly authorized by resolution. In the case of any such appointment by the Board of Directors of a successor to the Indenture Trustee, the Board of Directors shall forthwith cause notice thereof to be mailed to the Registered Owners of the Series 2004-1 Notes at the address of each Registered Owner appearing on the note registration books maintained by the Indenture Trustee.
Every successor Indenture Trustee appointed by the Registered Owners, by a court of competent jurisdiction, or by the Board of Directors shall be a bank or trust company in good standing, organized and doing business under the laws of the United States or of a state therein, which has a reported capital and surplus of not less than $50,000,000, be authorized under the law to exercise corporate trust powers, be subject to supervision or examination by a federal or state authority, and be an Eligible Lender so long as such designation is necessary to maintain guarantees and federal benefits under the Higher Education Act with respect to the Financed Eligible Loans originated under the Higher Education Act.
Section 7.12. Manner of Vesting Title in Indenture Trustee. Any successor Indenture Trustee appointed hereunder shall execute, acknowledge, and deliver to its predecessor Indenture Trustee, and also to the Issuer, an instrument accepting such appointment hereunder, and thereupon such successor Indenture Trustee, without any further act, deed, or conveyance shall become fully vested with all the estate, properties, rights, powers, trusts, duties, and obligations of its predecessors in trust hereunder (except that the predecessor Indenture Trustee shall continue to have the benefits to indemnification hereunder together with the successor Indenture Trustee), with like effect as if originally named as Indenture Trustee herein; but the Indenture Trustee ceasing to act shall nevertheless, on the written request of an Authorized Representative of the Issuer, or an authorized officer of the successor Indenture Trustee, execute, acknowledge, and deliver such instruments of conveyance and further assurance and do such other things as may reasonably be required for more fully and certainly vesting and confirming in such successor Indenture Trustee all the right, title, and interest of the Indenture Trustee which it
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succeeds, in and to pledged Revenue and Funds and such rights, powers, trusts, duties, and obligations, and the Indenture Trustee ceasing to act also, upon like request, pay over, assign, and deliver to the successor Indenture Trustee any money or other property or rights subject to the lien of this Indenture, including any pledged securities which may then be in its possession. Should any deed or instrument in writing from the Issuer be required by the successor Indenture Trustee for more fully and certainly vesting in and confirming to such new Indenture Trustee such estate, properties, rights, powers, and duties, any and all such deeds and instruments in writing shall on request be executed, acknowledged and delivered by the Issuer.
In case any of the Series 2004-1 Notes to be issued hereunder shall have been authenticated but not delivered, any successor Indenture Trustee may adopt the certificate of authentication of the Indenture Trustee or of any successor to the Indenture Trustee; and in case any of the Series 2004-1 Notes shall not have been authenticated, any successor to the Indenture Trustee may authenticate such Series 2004-1 Notes in its own name; and in all such cases such certificate shall have the full force which it has anywhere in the Series 2004-1 Notes or in this Indenture.
Section 7.13. Additional Covenants by the Indenture Trustee to Conform to the Higher Education Act. The Indenture Trustee covenants that it will at all times be an Eligible Lender under the Higher Education Act so long as such designation is necessary, as determined by the Issuer, to maintain the guarantees and federal benefits under the Higher Education Act with respect to the Financed Eligible Loans, that it will acquire Eligible Loans originated under the Higher Education Act in its capacity as an Eligible Lender and that it will not dispose of or deliver any Financed Eligible Loans originated under the Higher Education Act or any security interest in any such Financed Eligible Loans to any party who is not an Eligible Lender so long as the Higher Education Act or Regulations adopted thereunder require an Eligible Lender to be the owner or holder of such Financed Eligible Loans; provided, however, that nothing above shall prevent the Indenture Trustee from delivering the Eligible Loans to a Servicer or a Guaranty Agency.
Section 7.14. Right of Inspection. A Registered Owner shall be permitted at reasonable times during regular business hours and in accordance with reasonable regulations prescribed by the Indenture Trustee to examine at the designated corporate trust office of the Indenture Trustee a copy of any report or instrument theretofore filed with the Indenture Trustee relating to the condition of the Trust Estate.
Section 7.15. Limitation with Respect to Examination of Reports. Except as provided in this Indenture, the Indenture Trustee shall be under no duty to examine any report or statement or other document required or permitted to be filed with it by the Issuer.
Section 7.16. Servicing Agreement. The Indenture Trustee acknowledges the receipt of a copy of the Servicing Agreement, dated as of January 1, 2004, between the Issuer and Nelnet, Inc.
Section 7.17. Additional Covenants of Indenture Trustee. The Indenture Trustee, by the execution hereof, covenants, represents and agrees that:
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(a) it will not exercise any of the rights, duties, or privileges under this Indenture in such manner as would cause the Eligible Loans held or acquired under the terms hereof to be transferred, assigned, or pledged as security to any person or entity other than as permitted by this Indenture; and
(b) it will comply with the Higher Education Act and the Regulations and will, upon written notice from an Authorized Representative of the Issuer, the Secretary, or a Guaranty Agency, use its reasonable efforts to cause this Indenture to be amended (in accordance with Section 8.01 hereof) if the Higher Education Act or Regulations are hereafter amended so as to be contrary to the terms of this Indenture.
Section 7.18. Duty of Indenture Trustee with Respect to Rating Agencies. It shall be the duty of the Indenture Trustee to notify each Rating Agency then rating any of the Series 2004-1 Notes (but the Indenture Trustee shall incur no liability for any failure to do so) of (a) any change, expiration, extension, or renewal of this Indenture, (b) redemption or defeasance of any or all the Series 2004-1 Notes, (c) any change in the Indenture Trustee or (d) any other information reasonably requested to be reported to each Rating Agency; provided, however, the provisions of this
Section do not apply when such documents have been previously supplied to such Rating Agency and the Indenture Trustee has received written evidence to such effect, all as may be required by this Indenture. All notices required to be forwarded to the Rating Agencies under this Section shall be sent in writing at the following addresses:
Standard & Poor's Ratings Services 55 Water Street New York, New York 10041 Attention: Asset-Backed Surveillance Group
Fitch, Inc.
One State Street Plaza New York, New York 10004 Attention: Structured Finance
Moody's Investors Service 99 Church Street New York, New York 10007 Attention: ABS Monitoring Group
The Indenture Trustee also acknowledges that each Rating Agency's periodic review for maintenance of a Rating on any Class of the Series 2004-1 Notes may involve discussions and/or meetings with representatives of the Indenture Trustee at mutually agreeable times and places.
Section 7.19. Merger of the Indenture Trustee. Any corporation into which the Indenture Trustee may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Indenture Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Indenture Trustee, shall be the successor of the Indenture Trustee hereunder, provided such
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Exhibit 4.11
corporation shall be otherwise qualified and eligible under this Indenture, without the execution or filing of any paper of any further act on the part of any other parties hereto.
Section 7.20. Receipt of Funds from Servicers. The Indenture Trustee shall not be accountable or responsible in any manner whatsoever for any action of the Issuer, the depository bank of any funds of the Issuer, or a Servicer while such Servicer is acting as bailee or agent of the Indenture Trustee with respect to the Eligible Loans except, to the extent provided in any Servicing Agreement or Custodian Agreement, for actions taken in compliance with any instruction or direction given to the Indenture Trustee, or for the application of funds or moneys by such Servicer until such time as funds are received by the Indenture Trustee.
Section 7.21. Special Circumstances Leading to Resignation of Indenture Trustee. Because the Indenture Trustee serves as trustee hereunder for Obligations of different priorities, it is possible that circumstances may arise which will cause the Indenture Trustee to resign from its position as trustee for one or more of the Obligations. In the event that the Indenture Trustee makes a determination that it should so resign, due to the occurrence of an Event of Default or potential default hereunder, or otherwise, the Issuer may permit such resignation as to one or more of the Obligations or request the Indenture Trustee's resignation as to all Obligations, as the Issuer may elect. If the Issuer should determine that a conflict of interest has arisen as to the trusteeship of any of the Obligations, it may authorize and execute a Supplemental Indenture with one or more successor Indenture Trustees, under which the administration of certain of the Obligations would be separated from the administration of the other Obligations.
Section 7.22. Survival of Indenture Trustee's Rights to Receive Compensation, Reimbursement and Indemnification. The Indenture Trustee's rights to indemnity and to receive compensation and reimbursement of money due and owing to the Indenture Trustee hereunder shall survive the Indenture Trustee's resignation or removal, and the termination and discharge of the trust created by this Indenture.
Section 7.23. Indenture Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Issuer or any other obligor upon the Series 2004-1 Notes or the property of the Issuer or of such other obligor or their creditors, the Indenture Trustee (irrespective of whether the principal of the Series 2004-1 Notes of any Class shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Indenture Trustee shall have made any demand on the Issuer for the payment of overdue principal, premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount, or such lesser amount as may be provided for in the Series 2004-1 Notes, of principal (and premium, if any) and interest, if any, owing and unpaid in respect of the Series 2004-1 Notes and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its agents and counsel) and of the Registered Owners allowed in such judicial proceeding; and
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Exhibit 4.11
(b) to collect and receive any money or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Registered Owner of Series 2004-1 Notes to make such payments to the Indenture Trustee, and if the Indenture Trustee shall consent to the making of such payments directly to the Registered Owners, to pay to the Indenture Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and any predecessor Indenture Trustee, their agents and counsel, and any other amounts due the Indenture Trustee or any predecessor Indenture Trustee.
Nothing herein contained shall be deemed to authorize the Indenture Trustee to authorize or consent to or accept or adopt on behalf of any Registered Owner of a Series 2004-1 Note any plan of reorganization, arrangement, adjustment or composition affecting the Series 2004-1 Notes or the rights of any Registered Owner thereof, or to authorize the Indenture Trustee to vote in respect of the claim of any Registered Owner of a Series 2004-1 Note in any such proceeding.
In any proceedings brought by the Indenture Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Indenture Trustee shall be a party), the Indenture Trustee shall be held to represent all the Registered Owners of the Series 2004-1 Notes, and it shall not be necessary to make any Registered Owners of the Series 2004-1 Notes parties to any such proceedings.
Section 7.24. Payment of Taxes and Other Governmental Charges. The Indenture Trustee shall request, and Register Owners shall provide, all appropriate tax certifications and forms necessary to enable the Issuer or its agents, to determine their duties and liabilities with respect to any taxes or other charges that they may be required to pay, deduct or withhold in respect of the Series 2004-1 Notes under any present or future law or regulation of the United States or any present or future law or regulation of any political subdivision thereof or taxing authority therein or to comply with any reporting or other requirements under any law or regulation, and to pay, deduct or withhold any such taxes or charges and remit them to the relevant taxing authorities as required under law.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures Not Requiring Consent of Registered Owners. The Issuer and the Indenture Trustee may, without the consent of or notice to any of the Registered Owners of any Obligations enter into any indenture or indentures supplemental to this Indenture for any one or more of the following purposes:
(a) to cure any ambiguity or defect or omission in this Indenture;
(b) to grant to or confer upon the Indenture Trustee for the benefit of the Registered Owners any additional benefits, rights, remedies, powers or authorities that
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Exhibit 4.11
may lawfully be granted to or conferred upon the Registered Owners or the Indenture Trustee;
(c) to subject to this Indenture additional revenues, properties or collateral;
(d) to modify, amend or supplement this Indenture or any Supplemental Indenture hereto in such manner as to permit the qualification hereof and thereof under the Trust Indenture Act of 1939 or any similar federal statute hereafter in effect or to permit the qualification of the Series 2004-1 Notes for sale under the securities laws of the United States of America or of any of the states of the United States of America, and, if they so determine, to add to this Indenture or any Supplemental Indenture hereto such other terms, conditions and provisions as may be permitted by said Trust Indenture Act of 1939 or similar federal statute;
(e) to evidence the appointment of a separate or co-Indenture Trustee or a co-registrar or transfer agent or the succession of a new Indenture Trustee hereunder, or any additional or substitute Guaranty Agency or Servicer;
(f) to add such provisions to or to amend such provisions of this Indenture as may be necessary or desirable to assure implementation of the Program in conformance with the Higher Education Act if along with such Supplemental Indenture there is filed a Note Counsel's opinion to the effect that the addition or amendment of such provisions will in no way impair the existing security of the Registered Owners of any Outstanding Obligations;
(g) to make any change as shall be necessary in order to obtain and maintain for any of the Series 2004-1 Notes an investment grade Rating from a nationally recognized rating service, which changes, in the opinion of the Indenture Trustee are not to the prejudice of the Registered Owner of any of the Obligations;
(h) to make any changes necessary to comply with the Higher Education Act, the Regulations or the Code and the regulations promulgated thereunder;
(i) to make the terms and provisions of this Indenture, including the lien and security interest granted herein, applicable to a Derivative Product, and to modify Section 3.03 and Article V hereof with respect to any particular Derivative Product;
(j) to create any additional Funds or Accounts or Subaccounts under this Indenture deemed by the Indenture Trustee to be necessary or desirable;
(k) to amend the Indenture to allow for any Series 2004-1 Notes to be supported by a letter of credit or insurance policy or a liquidity agreement, including amendments with respect to repayment to such a provider on a parity with any Series 2004-1 Notes or Derivative Product and providing rights to such provider under this Indenture, including with respect to defaults and remedies;
(l) to amend the Indenture to provide for use of a surety bond or other financial guaranty instrument in lieu of cash and/or Investment Securities in all or any
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Exhibit 4.11
portion of the Reserve Fund, so long as such action shall not adversely affect the Ratings on any of the Series 2004-1 Notes;
(m) to make any other change with a Rating Confirmation; or
(n) to make any other change which, in the judgment of the Indenture Trustee is not to the material prejudice of the Registered Owners of any Obligations;
provided, however, that nothing in this Section shall permit, or be construed as permitting, any modification of the trusts, powers, rights, duties, remedies, immunities and privileges of the Indenture Trustee without the prior written approval of the Indenture Trustee, which approval shall be evidenced by execution of a Supplemental Indenture. The Issuer shall provide each Rating Agency with prior written notice of any Supplemental Indenture.
Section 8.02. Supplemental Indentures Requiring Consent of Registered Owners. Exclusive of Supplemental Indentures covered by Section 8.01 hereof and subject to the terms and provisions contained in this Section, and not otherwise, the Registered Owners of not less than a majority of the principal amount of each Class of affected Series 2004-1 Notes and each affected Derivative Product then Outstanding shall have the right, from time to time, to consent to and approve the execution by the Issuer and the Indenture Trustee of such other indenture or indentures supplemental hereto as shall be deemed necessary and desirable by the Issuer and/or Indenture Trustee for the purpose of modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or provisions contained in this Indenture or in any Supplemental Indenture; provided, however, that nothing in this Section shall permit, or be construed as permitting (a) without the consent of the Registered Owners of each affected Series 2004-1 Note and any additional consent required pursuant to any Derivative Product then Outstanding, (i) an extension of the maturity date of the principal of or the interest on any Obligation, (ii) a reduction in the principal amount of any Obligation or the rate of interest thereon, (iii) a privilege or priority of any Obligation or Obligations over any other Obligation or Obligations except as otherwise provided herein, or (iv) a reduction in the aggregate principal amount of the Obligations required for consent to a Supplemental Indenture, (v) the creation of any lien other than a lien ratably securing all of the Obligations at any time Outstanding hereunder except as otherwise provided herein or (b) any modification of the trusts, powers, rights, obligations, duties, remedies, immunities and privileges of the Indenture Trustee without the prior written approval of the Indenture Trustee. The Issuer shall provide each Rating Agency with prior written notice of any Supplemental Indenture.
If at any time the Issuer shall request that the Indenture Trustee enter into any such Supplemental Indenture for any of the purposes of this Section, the Indenture Trustee shall, upon being satisfactorily indemnified with respect to expenses, cause notice of the proposed execution of such Supplemental Indenture to be mailed by registered or certified mail to each Registered Owner of an Obligation at the address shown on the registration books or listed in any Derivative Product. Such notice (which shall be prepared by the Issuer) shall briefly set forth the nature of the proposed Supplemental Indenture and shall state that copies thereof are on file at the designated corporate trust office of the Indenture Trustee for inspection by all Registered Owners. If, within 60 days, or such longer period as shall be prescribed by the Issuer, following the mailing of such notice, the Registered Owners of not less than a majority of the principal
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Exhibit 4.11
amount of each Class of affected Series 2004-1 Notes and each affected Derivative Product then Outstanding at the time of the execution of any such Supplemental Indenture shall have consented in writing to and approved the execution thereof as herein provided, no Registered Owner of any Obligation shall have any right to object to any of the terms and provisions contained therein, or the operation thereof, or in any manner to question the propriety of the execution thereof, or to enjoin or restrain the Indenture Trustee or the Issuer from executing the same or from taking any action pursuant to the provisions thereof. Upon the execution of any such Supplemental Indenture as in this Section permitted and provided, this Indenture shall be and be deemed to be modified and amended in accordance therewith.
Section 8.03. Additional Limitation on Modification of Indenture. None of the provisions of this Indenture (including Sections 8.01 and 8.02 hereof) shall permit an amendment to the provisions of the Indenture which permits the transfer of all or part of the Financed Eligible Loans originated under the Higher Education Act or granting of a security interest therein to any Person other than an Eligible Lender or a Servicer, unless the Higher Education Act or Regulations are hereafter modified so as to permit the same.
ARTICLE IX
GENERAL PROVISIONS
Section 9.01. Notices. Any notice, request or other instrument required by this Indenture to be signed or executed by the Registered Owners of Obligations may be executed by the execution of any number of concurrent instruments of similar tenor, and may be signed or executed by such Registered Owners of Obligations in person or by agent appointed in writing. As a condition for acting thereunder the Indenture Trustee may demand proof of the execution of any such instrument and of the fact that any person claiming to be the owner of any of said Obligations is such owner and may further require the actual deposit of such Obligation or Obligations with the Indenture Trustee. The fact and date of the execution of such instrument may be proved by the certificate of any officer in any jurisdiction who by the laws thereof is authorized to take acknowledgments of deeds within such jurisdiction, that the person signing such instrument acknowledged before him the execution thereof, or may be proved by any affidavit of a witness to such execution sworn to before such officer.
The amount of Series 2004-1 Notes held by any person executing such instrument as a Registered Owner of Series 2004-1 Notes and the fact, amount, and numbers of the Series 2004-1 Notes held by such person and the date of his holding the same may be proved by a certificate executed by any responsible trust company, bank, banker, or other depository in a form approved by the Indenture Trustee, showing that at the date therein mentioned such person had on deposit with such depository the Series 2004-1 Notes described in such certificate; provided, however, that at all times the Indenture Trustee may require the actual deposit of such Series 2004-1 Note or Series 2004-1 Notes with the Indenture Trustee.
All notices, requests and other communications to any party hereunder shall be in writing (including bank wire, telex, telecopy or facsimile or similar writing) at the following addresses, and each address shall constitute each party's respective "Principal Office" for purposes of the Indenture:
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Exhibit 4.11
If intended for the Issuer:
Nelnet Education Loan Funding, Inc. Suite 201
121 South 13 Street
Lincoln, Nebraska 68508 Attention: Terry Heimes Telephone: (402) 458-2303 Telecopier: (402) 458-2399
If intended for the Indenture Trustee:
Wells Fargo Bank Minnesota, National Association 6th and Marquette, N9303-110 Minneapolis, Minnesota 55479 Attn: Corporate Trust Department Telephone: (612) 667-4802 Facsimile: (612) 667-2149
Any party may change the address to which subsequent notices to such party are to be sent, or of its principal office, by notice to the others, delivered by hand or received by telex or facsimile or registered first-class mail, postage prepaid. Each such notice, request or other communication shall be effective when delivered by hand or received by telex or facsimile or registered first-class mail, postage prepaid.
Section 9.02. Covenants Bind Issuer. The covenants, agreements, conditions, promises, and undertakings in this Indenture shall extend to and be binding upon the successors and assigns of the Issuer, and all of the covenants hereof shall bind such successors and assigns, and each of them, jointly and severally. All the covenants, conditions, and provisions hereof shall be held to be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the Registered Owners from time to time of the Obligations.
No extension of time of payment of any of the Obligations shall operate to release or discharge the Issuer, it being agreed that the liability of the Issuer, to the extent permitted by law, shall continue until all of the Obligations are paid in full, notwithstanding any transfer of Financed Eligible Loans or extension of time for payment.
Section 9.03. Lien Created. This Indenture shall operate effectually as
(a) a grant of lien on and security interest in, and (b) an assignment of, the Trust Estate.
Section 9.04. Severability of Lien. If the lien of this Indenture shall be or shall ever become ineffectual, invalid, or unenforceable against any part of the Trust Estate, which is not subject to the lien, because of want of power or title in the Issuer, the inclusion of any such part shall not in any way affect or invalidate the pledge and lien hereof against such part of the Trust Estate as to which the Issuer in fact had the right to pledge.
Section 9.05. Consent of Registered Owners Binds Successors. Any request or consent of the Registered Owner of any Obligations given for any of the purposes of this
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Exhibit 4.11
Indenture shall bind all future Registered Owners of the same Obligation or any Obligations issued in exchange therefor or in substitution thereof in respect of anything done or suffered by the Issuer or the Indenture Trustee in pursuance of such request or consent.
Section 9.06. Nonliability of Directors; No General Obligation. It is hereby expressly made a condition of this Indenture that any agreements, covenants, or representations herein contained or contained in the Series 2004-1 Notes do not and shall never constitute or give rise to a personal or pecuniary liability or charge against the incorporators, officers, employees, agents, or directors of the Issuer, or against the general credit of the Issuer, and in the event of a breach of any such agreement, covenant, or representation, no personal or pecuniary liability or charge payable directly or indirectly from the general revenues of the Issuer shall arise therefrom. Nothing contained in this Section, however, shall relieve the Issuer from the observance and performance of the several covenants and agreements on its part herein contained.
Section 9.07. Nonpresentment of Series 2004-1 Notes or Interest Checks. Should any of the Series 2004-1 Notes or interest checks not be presented for payment when due, the Indenture Trustee shall retain from any money transferred to it for the purpose of paying the Series 2004-1 Notes or interest checks so due, for the benefit of the Registered Owners thereof, a sum of money sufficient to pay such Series 2004-1 Notes or interest checks when the same are presented by the Registered Owners thereof for payment. Such money shall not be required to be invested. All liability of the Issuer to the Registered Owners of such Series 2004-1 Notes or interest checks and all rights of such Registered Owners against the Issuer under the Series 2004-1 Notes or interest checks or under this Indenture shall thereupon cease and determine, and the sole right of such Registered Owners shall thereafter be against such deposit. If any Series 2004-1 Note or interest check shall not be presented for payment within the period of two years following its payment or redemption date, the Indenture Trustee shall return to the Issuer the money theretofore held by it for payment of such Series 2004-1 Note or interest check, and such Series 2004-1 Note or interest check shall (subject to the defense of any applicable statute of limitation) thereafter be an unsecured obligation of the Issuer. The Indenture Trustee's responsibility for any such money shall cease upon remittance thereof to the Issuer.
Section 9.08. Security Agreement. This Indenture constitutes a Financing Statement and a Security Agreement under the Nebraska Uniform Commercial Code.
Section 9.09. Laws Governing. It is the intent of the parties hereto that this Indenture shall be construed in accordance with the laws of the State of Nebraska without reference to its conflict of law provisions.
Section 9.10. Severability. If any covenant, agreement, waiver, or part thereof in this Indenture contained be forbidden by any pertinent law or under any pertinent law be effective to render this Indenture invalid or unenforceable or to impair the lien hereof, then each such covenant, agreement, waiver, or part thereof shall itself be and is hereby declared to be wholly ineffective, and this Indenture shall be construed as if the same were not included herein.
Section 9.11. Exhibits. The terms of the Exhibits, if any, attached to this Indenture are incorporated herein in all particulars.
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Exhibit 4.11
Section 9.12. Non-Business Days. Except as may otherwise be provided herein, if the date for making payment of any amount hereunder or on any Series 2004-1 Note, or if the date for taking any action hereunder, is not a Business Day, then such payment can be made without accruing further interest or action can be taken on the next succeeding Business Day, with the same force and effect as if such payment were made when due or action taken on such required date.
Section 9.13. Parties Interested Herein. Nothing in this Indenture expressed or implied is intended or shall be construed to confer upon, or to give to, any person or entity, other than the Indenture Trustee, the paying agent, if any, and the Registered Owners of the Obligations, any right, remedy or claim under or by reason of this Indenture or any covenant, condition or stipulation hereof, and all covenants, stipulations, promises and agreements in this Indenture contained by and on behalf of the Issuer shall be for the sole and exclusive benefit of the Indenture Trustee, the paying agent, if any, and the Registered Owners of the Obligations.
Section 9.14. Obligations Are Limited Obligations. The Series 2004-1 Notes and the obligations of the Issuer contained in this Indenture are special, limited obligations of the Issuer, secured by and payable solely from the Trust Estate herein provided. The Issuer shall not be obligated to pay the Series 2004-1 Notes, the interest thereon, or any other obligation created by or arising from this Indenture from any other source.
Section 9.15. Counterparty Rights. Notwithstanding any provision of this Indenture, no Counterparty which shall be in default under any Derivative Product with the Issuer shall have any of the rights granted to a Counterparty or as the Registered Owner of an Obligation hereunder.
Section 9.16. Aggregate Principal Amount of Obligations. Whenever in this Indenture reference is made to the aggregate principal amount of any Obligations, such phrase shall mean, at any time, the principal amount of any Series 2004-1 Notes and the Derivative Value of any Derivative Product.
Section 9.17. Financed Eligible Loans. The Issuer expects to originate or acquire Eligible Loans and to transfer Eligible Loans to the Indenture Trustee, in accordance with this Indenture, which Eligible Loans, upon becoming subject to the lien of this Indenture, constitute Financed Eligible Loans, as defined herein. If for any reason a Financed Eligible Loan does not constitute an Eligible Loan, or ceases to constitute an Eligible Loan, such loan shall continue to be subject to the lien of this Indenture as a Financed Eligible Loan.
Section 9.18. No Petition; Subordination. Each of the Indenture Trustee (solely in its capacity as trustee hereunder) and the Registered Owners hereby covenants and agrees that prior to the date which is one year and one day after the payment in full of all outstanding Obligations, it will not institute against or join any other person or entity in instituting against the Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States. Each of the Indenture Trustee and the Registered Owners hereby covenants and agrees that to the extent the Issuer enters into other financing transactions pursuant to which it pledges or otherwise conveys any of its assets (or interests therein) (other than the Trust Estate) to another person or Persons in
94
Exhibit 4.11
connection therewith ("Other Assets"), then any interest, claim or benefit in such Other Assets is and shall be expressly subordinated to the indefeasible payments in full of all obligations and liabilities of the Issuer which, under the terms of the relevant documents relating to the financing of such Other Assets, are entitled to be paid from, entitled to the benefits of, or otherwise secured by such Other Assets, including the payment of post-petition interest on such other obligations and liabilities. This Indenture shall be deemed a subordination agreement within the meaning of Section 510(a) of the Bankruptcy Code.
ARTICLE X
PAYMENT AND CANCELLATION OF NOTES
AND SATISFACTION OF INDENTURE
Section 10.01. Trust Irrevocable. The trust created by the terms and provisions of this Indenture is irrevocable until the indebtedness secured hereby (the Series 2004-1 Notes and interest thereon) and all Issuer Derivative Payments are fully paid or provision made for its payment as provided in this Article.
Section 10.02. Satisfaction of Indenture.
(a) If the Issuer shall pay, or cause to be paid, or there shall otherwise be paid (i) to the Registered Owners of the Series 2004-1 Notes, the principal of and interest on the Series 2004-1 Notes, at the times and in the manner stipulated in this Indenture and (ii) to each Counterparty, all Issuer Derivative Payments then due, then the pledge of the Trust Estate which is not pledged hereunder, and all covenants, agreements, and other obligations of the Issuer to the Registered Owners of Series 2004-1 Notes shall thereupon cease, terminate, and become void and be discharged and satisfied. In such event, the Indenture Trustee shall execute and deliver to the Issuer all such instruments as may be desirable to evidence such discharge and satisfaction, and the Indenture Trustee shall pay over or deliver all money held by it under this Indenture to the party entitled to receive the same under this Indenture.
(b) Series 2004-1 Notes and any other Obligations issued under this Indenture will be considered to have been paid if money for their payment or redemption has been set aside and is being held in trust by the Indenture Trustee. Any Outstanding Series 2004-1 Note will be considered to have been paid if the Series 2004-1 Note is to be redeemed on any date prior to its stated maturity and notice of redemption has been given as provided in this Indenture and on said date there shall have been deposited with the Indenture Trustee either money or Investment Securities described in clause (a) of such definition, the principal of and the interest on which when due will provide money sufficient to pay the principal of and interest to become due on the Series 2004-1 Note.
(c) Any Issuer Derivative Payments are deemed to have been paid and the applicable Derivative Product terminated when payment of all Issuer Derivative Payments due and payable to each Counterparty under its respective Derivative Product have been made or duly provided for to the satisfaction of each Counterparty and the respective Derivative Product has been terminated.
95
Exhibit 4.11
(d) In no event shall the Indenture Trustee deliver over to the Issuer any Financed Eligible Loans originated under the Higher Education Act unless the Issuer is an Eligible Lender, if the Higher Education Act or Regulations then in effect require the owner or holder of such Financed Eligible Loans to be an Eligible Lender.
Section 10.03. Cancellation of Paid Series 2004-1 Notes. Any Series 2004-1 Notes which have been paid by the Issuer, mutilated Series 2004-1 Notes replaced by new Series 2004-1 Notes, and any temporary Series 2004-1 Note for which definitive Series 2004-1 Notes have been delivered shall (unless otherwise directed by the Issuer by Issuer Order) forthwith be cancelled by the Indenture Trustee and, except for temporary Series 2004-1 Notes, returned to the Issuer.
ARTICLE XI
TERMINATION
Section 11.01. Termination of the Trust.
(a) The trust created by this Indenture (the "Trust") shall terminate upon the earlier of (i) the later of (A) payment to the Registered Owners and to the Indenture Trustee of all amounts required to be paid to them pursuant to this Indenture and any Supplemental Indenture and the disposition of all property held as part of the Trust Estate or (B) the day following the date on which all reimbursement obligations to the Counterparties, if any, and any other Person as may be provided for in any Supplemental Indenture have been paid in full,
(ii) the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy (the late ambassador of the United States to the Court of St. James) living on the date of this Indenture or (iii) subject to subsection (d) of this Section, upon the occurrence of a Liquidation Event (as hereinafter defined). The Issuer shall promptly notify the Indenture Trustee of any prospective termination pursuant to this Section.
(b) Notice of any prospective termination, specifying the Distribution Date for payment of the final distribution and requesting the surrender of the Series 2004-1 Notes for cancellation, shall be given promptly by the Indenture Trustee by letter to Registered Owners mailed not less than 10 nor more than 15 days preceding the specified Distribution Date stating (i) the Distribution Date upon which final payment of the Series 2004-1 Notes shall be made, (ii) the amount of any such final payment, and (iii) the location for presentation and surrender of the Series 2004-1 Notes. Payment of the final distribution which shall be made only upon presentation and surrender of the Series 2004-1 Notes at the corporate trust office of the Indenture Trustee specified in the notice.
(c) A "Liquidation Event" shall be deemed to have occurred, subject to subsection (d) of this Section, upon Dissolution of the Issuer.
(d) The Issuer shall not voluntarily take any action that would cause it to be deemed dissolved within the meaning of this Article.
96
Exhibit 4.11
In the event of the Dissolution of the Issuer or any action that would cause the Issuer to cease being deemed a general partner of the Trust if the Trust were deemed a limited partnership formed under the Delaware Revised Uniform Limited Partnership Act, and the Issuer's interest were deemed to represent the sole general partnership interest in such a partnership, the Trust shall terminate 90 days after the date of such event and its assets liquidated in accordance with subsection
(e) of this Section unless both of the following occur:
(i) the Registered Owners representing Registered Owner Approval, as defined in Section 6.01 hereof, inform the Indenture Trustee in writing before the end of such 90 day period that they disapprove of the liquidation of the assets of the Trust; and
(ii) the Issuer, the Indenture Trustee and the Counterparties, if any, shall receive an opinion of counsel to the effect that the continuation of the Trust shall not cause the Trust to be treated as an association taxable as a corporation for federal income tax purposes.
(e) Upon receipt by the Indenture Trustee from the Issuer of notice of the occurrence of a Liquidation Event (as defined in subsection (c) of this Section), the Indenture Trustee shall, subject to the direction of the Registered Owners constituting Registered Owner Approval (provided that, if Registered Owners constituting Registered Owner Approval shall not have provided such direction to the Indenture Trustee within 30 days of the Indenture Trustee having sent a written request for such direction to the Registered Owners, the Indenture Trustee shall proceed without such direction) sell the remaining assets of the Trust Estate, if any, at public or private sale, in a commercially reasonable manner and on commercially reasonable terms. The Issuer agrees to cooperate with the Indenture Trustee to affect any such sale, including by executing such instruments of conveyance or assignment as shall be necessary or required by the purchaser. Proceeds of sale, net of expenses, shall be treated as collections on the assets of the Trust and shall be deposited into the Collection Fund. On the next Distribution Date the Indenture Trustee shall cause to be paid to Registered Owners and the Issuer amounts distributable on such Distribution Date pursuant to Article V hereof. Following the termination of the Trust, all right, title and interest in and to the Financed Eligible Loans and other property and funds in the Trust Estate (other than funds on deposit in certain accounts for the payment of expenses) shall be conveyed and transferred to the Issuer.
Section 11.02. Notice. The Indenture Trustee shall give notice of termination of the Trust to the Issuer and each Rating Agency.
ARTICLE XII
REPORTING REQUIREMENTS
Section 12.01. Annual Statement as to Compliance. The Issuer will cause each Servicer to deliver to the Administrator, each Rating Agency, the Indenture Trustee and the
97
Exhibit 4.11
Issuer, on or before March 15 of each year, beginning with March 15, 2004, a certificate dated as of December 31 of the preceding year stating that (a) a review of the activities of such Servicer during the preceding calendar year (or, in the case of the first such certificate, during the period from the Closing Date to December 31, 2004) and of its performance under its Servicing Agreement has been made under the supervision of the officer signing such certificate; and (b) to the best of such officers' knowledge, based on such review, such Servicer has fulfilled all its obligations under its Servicing Agreement throughout such year, or, there has been a default in the fulfillment of any such obligation, specifying each such default known to such officer and the nature and statue thereof.
Section 12.02. Annual Independent Public Accountants' Servicing Report. Within 75 days of the end of each Servicer's regular fiscal-year or calendar-year audit period, the Issuer shall cause each Servicer, at its expense, to cause a firm of independent public accountants to furnish a statement to the Administrator, each Rating Agency, the Issuer and the Indenture Trustee to the effect that such firm has examined certain documents and records relating to the servicing of the Financed Eligible Loans (during the preceding year) in compliance with the standards for Compliance Audits Attestation Engagements for Lenders and Lender Servicers Participating in the Federal Family Education Loan Program and that, on the basis of such examination, such servicing has been conducted in compliance with such servicing agreements except for such significant exceptions or errors in records that, in the opinion of such firm, requires it to report and which are set forth in such report.
Section 12.03. Administrator's Certificate. Each month, not later than the 15th day of each month, the Administrator shall deliver to the Indenture Trustee, an Officer's Certificate certifying to the accuracy of the monthly statement contemplated by Section 12.04 hereof.
Section 12.04. Statements to Registered Owners. On or before the fifteenth day of each month, the Issuer shall provide to the Indenture Trustee (with a copy to the Rating Agencies) for the Indenture Trustee to forward within five days of receipt to each Registered Owner, a statement setting forth information with respect to the Series 2004-1 Notes and Financed Eligible Loans as of the end of the preceding month, the following to the extent applicable;
(a) the amount of payments with respect to each Class of Series 2004-1 Notes paid with respect to principal during the preceding month;
(b) the amount of payments with respect to each Class of Series 2004-1 Notes paid with respect to interest during the preceding month;
(c) the amount of the payments allocable to any Registered Owners' interest carry-over, if any, together with any remaining outstanding amount of each thereof;
(d) the principal balance of Financed Eligible Loans as of the close of business on the last day of the preceding month;
(e) the aggregate Outstanding Amount of the Series 2004-1 Notes of each Class as of the close of business on the last day of the preceding month, after giving effect to payments allocated to principal reported under clause (a) above;
98
Exhibit 4.11
(f) the interest rate for any Class of variable rate Series 2004-1 Notes, indicating how such interest rate is calculated;
(g) the amount of the servicing fees allocated to each Servicer as of the close of business on the last day of the preceding month;
(h) the amount of the Program Expenses, Realized Losses, any Auction Agent fees, Broker-Dealer fees, Remarketing Agent fees, Administrator fees, Eligible Lender Trustee fees and Indenture Trustee fees, if any, allocated as of the close of business on the last day of the preceding month;
(i) the amount of the Recoveries of Principal and interest received during the preceding month relating to Financed Eligible Loans;
(j) the amount of the payment attributable to amounts in the Reserve Fund, the amount of any other withdrawals from the Reserve Fund and the balance of the Reserve Fund as of the close of business on the last day of the preceding month;
(k) the portion, if any, of the payments attributable to amounts on deposit in the Acquisition Fund, the Class B Supplemental Reserve Fund and the Reserve Fund;
(l) the aggregate amount, if any, paid by the Indenture Trustee to acquire Eligible Loans from amounts on deposit in the Acquisition Fund during the preceding month;
(m) the amount remaining in the Acquisition Fund that has not been used to acquire Eligible Loans and is being transferred to the Collection Fund, if any;
(n) the aggregate amount, if any, paid for Financed Eligible Loans purchased from the Issuer during the preceding month;
(o) the number and principal amount of Financed Eligible Loans, as of the close of business on the last day of the preceding month, that are (i) 30 to 60 days delinquent, (ii) 61 to 90 days delinquent, (iii) 91 to 120 days delinquent, (iv) greater than 120 days delinquent and (v) for which claims have been filed with the appropriate Guaranty Agency and which are awaiting payment;
(p) the Aggregate Value of the Trust Estate and the Outstanding Amount of the Series 2004-1 Notes as of the close of business on the last day of the preceding month; and
(q) the number and percentage by dollar amount of (i) rejected federal reimbursement claims for Financed Eligible Loans, (ii) Financed Eligible Loans in forbearance, and (iii) Financed Eligible Loans in deferment.
A copy of the statements referred to above may be obtained by any Registered Owner by a written request to the Indenture Trustee, addressed to its designated corporate trust office.
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Exhibit 4.11
IN WITNESS WHEREOF, the Issuer, the Eligible Lender Trustee and the Indenture Trustee have caused this Indenture to be duly executed by their respective Authorized Officers, thereunto duly authorized and duly attested, all as of the day and year first above written.
NELNET EDUCATION LOAN FUNDING, INC.

By /s/ Terry J. Heimes
   ------------------------------------------------------
    Terry J. Heimes, President	

WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as
Indenture Trustee

By /s/ Scott E. Ulven
   ------------------------------------------------------
    Scott E. Ulven, Corporate Trust Officer	

Acknowledged and accepted as to clause "C" of the Granting Clauses as of the day and year first written above:
WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as
Eligible Lender Trustee

By /s/ Scott E. Ulven
   ------------------------------------------------------
    Scott E. Ulven, Corporate Trust Officer	

100
Exhibit 4.11
APPENDIX A
CERTAIN TERMS AND PROVISIONS OF
THE Reset RATE NOTES
ARTICLE I
DEFINITIONS
Except as provided below in this Section, all terms which are defined in Article I of the Indenture shall have the same meanings, respectively, in this Appendix A as such terms are given in Article I of the Indenture. In addition, the following terms shall have the following respective meanings:
"Accrual Period"` shall mean, with respect to a Quarterly Distribution Date and (a) a Class of the Reset Rate Notes that bears interest at a floating rate of interest, the period from and including the immediately preceding Quarterly Distribution Date for such Class of the Reset Rate Notes, or in the case of the initial such period the Closing Date, to but excluding such current Quarterly Distribution Date; provided that, if more than one Interest Rate Change Date occurs for any Class of the Reset Rate Notes within any given Accrual Period, the related rate of interest for the entire Accrual Period shall be the weighted average of the interest rates applicable on such Class of the Reset Rate Notes for each day during such Accrual Period; and (b) a Class of the Reset Rate Notes that bears interest at a fixed rate, the period from and including the immediately preceding Quarterly Distribution Date, to but excluding the current Quarterly Distribution Date.
"Actual/360" shall mean that interest is calculated on the basis of the actual number of days elapsed in a year of 360 days.
"Actual/365 (fixed)" shall mean that interest is calculated on the basis of the actual number of days elapsed in a year of 365 days, regardless of whether accrual or payment occurs in a leap year.
"Actual/Actual (accrual basis)" shall mean that interest is calculated on the basis of the actual number of days elapsed in a year of 365 days, or 366 days for every day in a leap year.
"Actual/Actual (payment basis)" shall mean that interest is calculated on the basis of the actual number of days elapsed in a year of 365 days if the interest period ends in a non-leap year, or 366 days if the interest period ends in a leap year, as the case may be.
"All Hold Rate" shall mean, for a Class of the Reset Rate Notes, the applicable Index plus or minus the related Spread (with respect to a Class of the Reset Rate Notes that will bear interest at a floating rate) or the applicable fixed rate, which may be expressed as the fixed rate pricing benchmark plus or minus a spread (with respect to a Class of the Reset Rate Notes that will bear interest at a fixed rate), that the Remarketing Agents, in consultation with the Administrator, determine will be in effect, unless the related Call Option is exercised, in the event that 100% of
Exhibit 4.11
the holders of that Class of the Reset Rate Notes choose to hold their Reset Rate Notes for the upcoming Reset Period. The All Hold Rate shall be a rate that the Remarketing Agents, in consultation with the Administrator, in their good faith determination, believe would result in the remarketing of the entire applicable Class of the Reset Rate Notes at a price equal to 100% of the Outstanding Amount thereof; provided, however, the All Hold Rate shall not exceed Three-Month LIBOR plus 0.75%.
"Business Day" shall mean, with respect to the Reset Rate Notes, (a) with respect to calculating One-Month, Two-Month and Three-Month LIBOR, any day on which banks in New York, New York and London, England are open for the transaction of international business; and (b) for all other purposes, any day other than a Saturday, a Sunday or a day on which banking institutions or trust companies in New York, New York or Minneapolis, Minnesota are authorized or obligated by law, regulation or executive order to remain closed.
"Call Option" shall mean, the option described in Section 2.06 of this Appendix A owned by Nelnet, Inc. or one of its subsidiaries as a permitted transferee (provided, that no such subsidiary shall possess the Call Option if it at any time owned an interest in any of the Financed Eligible Loans) to purchase 100% of a Class of the Reset Rate Notes on each related Reset Date, exercisable at a price equal to 100% of the Outstanding Amount of such Class, less all amounts distributed to the Registered Owners of the related Class of the Reset Rate Notes as a payment of principal on the related Quarterly Distribution Date, plus any accrued and unpaid interest and Reset Rate Notes Carry-over Amount not paid by the Issuer on the related Quarterly Distribution Date, and pursuant to the terms and conditions set forth in the Reset Rate Note Procedures.
"Call Rate" shall mean, for a Class of the Reset Rate Notes for which a Call Option has been exercised, the rate of interest that is either: (a) if that Class did not have at least one related Derivative Product in effect during the previous Reset Period, the rate applicable for the most recent Reset Period during which the Failed Remarketing Rate was not in effect; or (b) if that Class had one or more related Derivative Products in effect during the previous Reset Period, the weighted average of the floating rates of interest that were due to the related Counterparties from the Issuer during the previous Reset Period for that Class. This rate will continue to apply for each Reset Period while the holder of the Call Option retains that Class of the Reset Rate Notes.
"Class A-1A Notes Interest Rate" shall mean, for any Accrual Period after the initial Accrual Period, Three-Month LIBOR as determined on the related LIBOR Determination Date, plus 0.07%, based on an Actual/360 accrual method. For the initial Accrual Period, the Class A-1A Rate shall mean 1.25992%, based on an Actual/360 accrual method. The Class A-1A Rate shall be changed on each related Reset Date to the interest rate (which shall not exceed Three-Month LIBOR plus 0.75%) and Day Count Basis that will be set forth in the notice required to be delivered by the Administrator and/or the Remarketing Agents on each related Remarketing Terms Determination Date and Spread Determination Date, as applicable, pursuant to the procedures set forth in the Reset Rate Note Procedures.
"Class A-1B Notes Interest Rate" shall mean, for any Accrual Period until and including the Initial Reset Date for the Class A-1B Notes, 1.84% per annum based on a 30/360 year, except for the initial Accrual Period which will consist of 207 days. The Class A-1B Rate shall be changed on each related Reset Date to the interest rate (which shall not exceed Three-Month
A-2
Exhibit 4.11
LIBOR plus 0.75%) and Day Count Basis that will be set forth in the notice required to be delivered by the Administrator and/or the Remarketing Agents on each related Remarketing Terms Determination Date and Spread Determination Date, as applicable, pursuant to the procedures set forth in the Reset Rate Note Procedures.
"Class A-2 Notes Interest Rate" shall mean, for any Accrual Period after the initial Accrual Period, Three-Month LIBOR as determined on the related LIBOR Determination Date, plus 0.11%, based on an Actual/360 accrual method. For the initial Accrual Period, the Class A-2 Rate shall mean 1.29992%, based on an Actual/360 accrual method. The Class A-2 Rate shall be changed on each related Reset Date to the interest rate (which shall not exceed Three-Month LIBOR plus 0.75%) and Day Count Basis that will be set forth in the notice required to be delivered by the Administrator and/or the Remarketing Agents on each related Remarketing Terms Determination Date and Spread Determination Date, as applicable, pursuant to the procedures set forth in the Reset Rate Note Procedures.
"Class A-3 Notes Interest Rate" shall mean, for any Accrual Period after the initial Accrual Period, Three-Month LIBOR as determined on the related LIBOR Determination Date, plus 0.15%, based on an Actual/360 accrual method. For the initial Accrual Period, the Class A-3 Rate shall mean 1.33992%, based on an Actual/360 accrual method. The Class A-3 Rate shall be changed on each related Reset Date to the interest rate (which shall not exceed Three-Month LIBOR plus 0.75%) and Day Count Basis that will be set forth in the notice required to be delivered by the Administrator and/or the Remarketing Agents on each related Remarketing Terms Determination Date and Spread Determination Date, as applicable, pursuant to the procedures set forth in the Reset Rate Note Procedures.
"CMT Rate" shall mean, for any relevant Interest Rate Determination Date prior to each related Interest Rate Change Date, the rate displayed on the applicable Designated CMT Moneyline Telerate Page shown below by 3:00 p.m., New York City time, on that Interest Rate Determination Date under the caption ". .
. Treasury Constant Maturities . . . Federal Reserve Board Release H.15. . . .Mondays Approximately 3:45 p.m.," under the column for: (a) if the Designated CMT Moneyline Telerate Page is 7051, the rate on that Interest Rate Determination Date; or (b) if the Designated CMT Moneyline Telerate Page is 7052, the average for the week, the month or the quarter, as specified on the Remarketing Terms Determination Date, ended immediately before the week in which the related Interest Rate Determination Date occurs. The following procedures will apply if the CMT Rate cannot be determined as described above: (i) if the rate described above is not displayed on the relevant page by 3:00 p.m., New York City time on that Interest Rate Determination Date, unless the calculation is made earlier and the rate is available from that source at that time on that Interest Rate Determination Date, then the CMT Rate will be the Treasury constant maturity rate having the designated index maturity, as published in H.15(519) or another recognized electronic source for displaying the rate; (ii) if the applicable rate described above is not published in H.15(519) or another recognized electronic source for displaying such rate by 3:00 p.m., New York City time on that Interest Rate Determination Date, unless the calculation is made earlier and the rate is available from one of those sources at that time, then the CMT Rate will be the Treasury constant maturity rate, or other United States Treasury rate, for the index maturity and with reference to the relevant Interest Rate Determination Date, that is published by either the Board of Governors of the Federal Reserve System or the United States Department of the Treasury and that the
A-3
Exhibit 4.11
Administrator determines to be comparable to the rate formerly displayed on the Designated CMT Moneyline Telerate Page shown above and published in H.15(519);
(iii) if the rate described in the prior paragraph cannot be determined, then the Administrator will determine the CMT Rate to be a yield to maturity based on the average of the secondary market closing offered rates as of approximately 3:30 p.m., New York City time, on the relevant Interest Rate Determination Date reported, according to their written records, by leading primary United States government securities dealers in New York City. The Administrator will select five such securities dealers and will eliminate the highest and lowest quotations or, in the event of equality, one of the highest and lowest quotations, for the most recently issued direct noncallable fixed rate obligations of the United States Treasury ("Treasury Notes") with an original maturity of approximately the designated index maturity and a remaining term to maturity of not less than the designated index maturity minus one year in a representative amount; (iv) if the Administrator cannot obtain three Treasury Note quotations of the kind described in clause (iii) above, the Administrator will determine the CMT Rate to be the yield to maturity based on the average of the secondary market bid rates for Treasury Notes with an original maturity longer than the designated CMT index maturity which have a remaining term to maturity closest to the designated CMT index maturity and in a representative amount, as of approximately 3:30 p.m., New York City time, on the relevant Interest Rate Determination Date of leading primary United States government securities dealers in New York City. In selecting these offered rates, the Administrator will request quotations from at least five such securities dealers and will disregard the highest quotation (or if there is equality, one of the highest) and the lowest quotation (or if there is equality, one of the lowest). If two Treasury Notes with an original maturity longer than the designated CMT index maturity have remaining terms to maturity that are equally close to the designated CMT index maturity, the Administrator will obtain quotations for the Treasury Note with the shorter remaining term to maturity; (v) if three or four but not five leading primary United States government securities dealers are quoting as described in the prior paragraph, then the CMT Rate for the relevant Interest Rate Determination Date will be based on the average of the bid rates obtained and neither the highest nor the lowest of those quotations will be eliminated; or (vi) if fewer than three leading primary United States government securities dealers selected by the Administrator are quoting as described in clause (v) above, the CMT Rate will remain the CMT Rate then in effect on that Interest Rate Determination Date.
"Commercial Paper Rate" shall mean, for any relevant Interest Rate Determination Date prior to each related Interest Rate Change Date, the Bond Equivalent Yield (as defined below) of the rate for 90-day commercial paper, as published in H.15(519) prior to 3:00 p.m., New York City time, on that Interest Rate Determination Date under the heading "Commercial Paper--Financial." If the rate described above is not published in H.15(519) by 3:00 p.m., New York City time, on that Interest Rate Determination Date, unless the calculation is made earlier and the rate was available from that source at that time, then the Commercial Paper Rate will be the Bond Equivalent Yield of the rate on the relevant Interest Rate Determination Date, for commercial paper having the index maturity specified on the Remarketing Terms Determination Date, as published in H.15 Daily Update or any other recognized electronic source used for displaying that rate under the heading "Commercial Paper--Financial." For purposes of this definition of "Commercial Paper Rate," the "Bond Equivalent Yield" equals
[(NxD)/[360(Dx90)] times 100], where "D" refers to the per annum rate determined as set forth above, quoted on a bank discount basis and expressed as a decimal and "N" refers to 365 or 366, as the case may be. If the rate described above cannot be determined, the Commercial Paper
A-4
Exhibit 4.11
Rate will remain the commercial paper rate then in effect on that Interest Rate Determination Date.
"Commercial Paper Rate Minimum Purchase Amount" shall have the meaning ascribed to such term in Section 2.07(b) of this Appendix A.
"Day Count Basis" means 30/360, Actual/360, Actual/365 (fixed), Actual/Actual (accrual basis) or Actual/Actual (payment basis), as applicable.
"Eligible Counterparty" shall mean any entity, which may be an affiliate of a Remarketing Agent, engaged in the business of entering into derivative instrument contracts that satisfies the Rating Agency Condition.
"Eligible Reset Rate Notes Carry-over Make-Up Amount" shall mean, with respect to each Accrual Period relating to a Class of the Reset Rate Notes as to which, as of the first day of such Accrual Period, there is any unpaid Reset Rate Notes Carry-over Amount, an amount equal to the lesser of (a) interest computed on the principal balance of such Class of the Reset Rate Notes in respect to such Accrual Period at a per annum rate equal to the excess, if any, of the Net Loan Rate over the Class A-1A Notes Interest Rate, the Class A-1B Notes Interest Rate, the Class A-2 Notes Interest Rate or the Class A-3 Notes Interest Rate, as applicable, and (b) the aggregate Reset Rate Notes Carry-over Amount remaining unpaid as of the first day of such Accrual Period together with interest accrued and unpaid thereon through the end of such Accrual Period.
"Failed Remarketing" shall mean, with respect to a Class of the Reset Rate Notes and each related Reset Date, the situation where (a) the Remarketing Agents, in consultation with the Administrator, cannot establish one or more of the terms required to be set on the Remarketing Terms Determination Date, (b) the Remarketing Agents are unable to establish the related Spread or fixed rate of interest on the Spread Determination Date or the Spread or fixed rate of interest would exceed three-month LIBOR plus 0.75%, (c) the Remarketing Agents are unable to remarket some or all of the tendered Reset Rate Notes at the Spread or fixed rate of interest established on the Spread Determination Date and, in their sole discretion, elect not to purchase those Reset Rate Notes, (d) any failure of the Issuer to redeem a Class of Reset Rate Notes on a Reset Date following the delivery of a notice of redemption or any failure of Nelnet, Inc., or one of its designated affiliates, to purchase a Class of the Reset Rate Notes on a Reset Date following the exercise of the Call Option, (e) any of the conditions specified in Section 8 of the Remarketing Agreement have not been satisfied or (f) any applicable Rating Agency Condition has not been satisfied.
"Failed Remarketing Rate" shall mean, for any applicable Reset Period and any Class of the Reset Rate Notes, Three-Month LIBOR plus 0.75%.
"Federal Funds Rate" shall mean, for any relevant Interest Rate Determination Date prior to each related Interest Rate Change Date, the rate set forth for such day opposite the caption "Federal Funds (effective)" in the weekly statistical release designated H.15(519), or any successor publication, published by the Board of Governors of the Federal Reserve System. If such rate is not published in the relevant H.15(519) for any day, the rate for such day shall be the
A-5
Exhibit 4.11
arithmetic mean of the rates for the last transaction in overnight Federal Funds arranged prior to 9:00 a.m., New York City time, on that day by each of four leading brokers in such transactions located in New York City selected by the Administrator. The Federal Funds Rate for each Saturday and Sunday and for any other that is not a Business Day shall be the Federal Funds Rate for the preceding Business Day as determined above.
"H.15(519)" shall mean the weekly statistical release designated as such, or any successor publication, published by the Board of Governors of the United States Federal Reserve System.
"H.15 Daily Update" shall mean the daily update for H.15(519), available through the World Wide Web site of the Board of Governors of the Federal Reserve System at http://www.federalreserve.gov/releases/h15/update, or any successor site or publications.
"Hold Notice" shall mean a written statement (or an oral statement confirmed in writing, which may be by e-mail) by a Registered Owner or beneficial owner of a Reset Rate Note delivered to a Remarketing Agent on or before the Notice Date that such Registered Owner or beneficial owner desires to hold its Reset Rate Notes for the upcoming Reset Period and affirmatively agrees to receive a rate of interest of not less than the applicable All Hold Rate commencing on the related Reset Date.
"Index" or "Indices" shall mean LIBOR, a Commercial Paper Rate, the CMT Rate, the Federal Funds Rate, the 91-day Treasury Bill Rate and the Prime Rate.
"Index Maturity" shall mean, with respect to any Accrual Period, the interval between Interest Rate Change Dates for each applicable Index during such Accrual Period, commencing on the first day of that Accrual Period.
"Initial Reset Date" shall mean, for the Class A-1A Notes, the Class A-1B Notes, the Class A-2 Notes and the Class A-3 Notes, the Quarterly Distribution Date in August of 2005, August of 2005, November of 2006 and November of 2008, respectively.
"Initial Remarketing Agency Agreement" shall mean each agreement, substantially in the form of Appendix A to the Remarketing Agreement to be entered into on each Remarketing Terms Determination Date (unless the Call Option has been exercised) among the Remarketing Agents, the Administrator and the Issuer.
"Interest Rate Change Date" shall mean for each Accrual Period, the date or dates, based on the applicable Index, on which the rate of interest for any Class of the Reset Rate Notes bearing interest at a floating rate is to be reset.
"Interest Rate Determination Date" shall mean, for each Accrual Period, and (a) for any Class of the Reset Rate Notes that bear interest at a LIBOR based rate, the related LIBOR Determination Date; or (b) for each Class of the Reset Rate Notes that bear interest at a floating rate that is not LIBOR based, the applicable date or dates set forth in the related Remarketing Terms Notice, on which the applicable rate of interest to be in effect as of the next related Interest Rate Change Date will be determined by the Administrator.
A-6
Exhibit 4.11
"LIBOR" shall mean One-Month LIBOR, Two-Month LIBOR and Three-Month LIBOR, as applicable
"LIBOR Determination Date" shall mean, for each Accrual Period, the second Business Day before the beginning of that Accrual Period.
"Nelnet Eligible Purchaser" shall mean Nelnet, Inc. or any of its affiliates; provided that any such affiliate has at no time owned an interest in any of the Financed Eligible Loans.
"Net Loan Rate" shall mean, with respect to any Accrual Period applicable to a Class of the Reset Rate Notes, the weighted average return on the Financed Eligible Loans, including all Revenues derived from such Financed Eligible Loans, less all Program Expenses expressed as a percentage of the average outstanding principal balance of such Financed Eligible Loans, which percentage shall be calculated by the Issuer on a quarterly basis, in arrears and provided to the Indenture Trustee and the Remarketing Agents. In making the determination of the Net Loan Rate, the Issuer shall take into account any Counterparty Payments received and/or any Issuer Derivative Payments made.
"91-day Treasury Bill Rate" shall mean for any relevant Interest Rate Determination Date, prior to each related Interest Rate Change Date, the rate equal to the weighted average per annum discount rate (expressed as a bond equivalent yield and applied on a daily basis) for direct obligations of the United States with a maturity of thirteen weeks ("91-day Treasury Bills") sold at the applicable 91-day Treasury Bill auction, as published in H.15(519) or otherwise or as reported by the U.S. Department of the Treasury. In the event that the results of the auctions of 91-day Treasury Bills cease to be published or reported as provided above, or that no 91-day Treasury Bill auction is held in a particular week, then the 91-day Treasury Bill Rate in effect as a result of the last such publication or report will remain in effect until such time, if any, as the results of auctions of 91-day Treasury Bills will again be so published or reported or such auction is held, as the case may be.
"Notice Date" shall mean, for each Class of the Reset Rate Notes, 12:00 noon, New York City time, on the sixth Business Day prior to the related Reset Date.
"One-Month LIBOR" see definition of "Three-Month LIBOR."
"Prime Rate" shall mean, for any relevant Interest Rate Determination Date prior to each related Interest Rate Change Date, the prime rate or base lending rate on that date, as published in H.15(519), prior to 3:00 p.m., New York City time, on that Interest Rate Determination Date under the heading "Bank Prime Loan." The Administrator will observe the following procedures if the Prime Rate cannot be determined as described above: (a) if the rate described above is not published in H.15(519) prior to 3:00 p.m., New York City time, on the relevant Interest Rate Determination Date unless the calculation is made earlier and the rate was available from that source at that time, then the Prime Rate will be the rate for that Interest Rate Determination Date, as published in H.15 Daily Update or another recognized electronic source for displaying such rate opposite the caption "Bank Prime Loan"; (b) if the above rate is not published in either H.15(519), H.15 Daily Update or another recognized electronic source for displaying such rate by 3:00 p.m., New York City time, on the relevant Interest Rate Determination Date, then the
A-7
Exhibit 4.11
Administrator will determine the Prime Rate to be the average of the rates of interest publicly announced by each bank that appears on the Reuters screen designated as "USPRIME1" as that bank's prime rate or base lending rate as in effect on that Interest Rate Determination Date; (c) if fewer than four rates appear on the Reuters screen USPRIME1 page on the relevant Interest Rate Determination Date, then the Prime Rate will be the average of the prime rates or base lending rates quoted, on the basis of the actual number of days in the year divided by a 360-day year, as of the close of business on that Interest Rate Determination Date by three major banks in New York City selected by the Administrator; or (d) if the banks selected by the Administrator are not quoting as mentioned above, the Prime Rate will remain the prime rate then in effect on that Interest Rate Determination Date.
"Pro rata Portion" shall mean a percentage determined by dividing the Outstanding Amount of a Class of the Reset Rate Notes (less any amounts in the redemption account of the Note Payment Fund corresponding the such Class of the Reset Rate Notes that were deposited therein prior to the preceding Quarterly Payment Date) by the Outstanding Amount of all of the Series 2004-1 Notes (less any amounts in the redemption accounts of the Note Payment Fund that were deposited therein prior to the preceding Quarterly Payment Date).
"Pro rata Minimum Purchase Amount" shall have the meaning ascribed to such term in Section 2.05(c) of this Appendix A.
"Purchase Option" shall mean the options described in Section 2.07(a) and (b) of this Appendix A owned by Nelnet, Inc. or one of its subsidiaries as a permitted transferee (provided, that no such subsidiary shall possess the Purchase Option if it at any time owned an interest in any of the Financed Eligible Loans) to purchase Financed Eligible Loans.
"Reference Banks" shall mean, four major banks in the London interbank market selected by the Administrator.
"Remarketing Agency Agreement" shall mean the collective reference to an Initial Remarketing Agency Agreement and the related Supplemental Remarketing Agency Agreement.
"Remarketing Agents" shall mean, initially, Credit Suisse First Boston LLC or Deutsche Bank Securities Inc. The Administrator, in its sole discretion, may change any Remarketing Agent for any Class of the Reset Rate Notes for any Reset Period at any time on or before a related Remarketing Terms Determination Date.
"Remarketing Agreement" shall mean the Remarketing Agreement, dated as of January 30, 2004, among the Issuer, the Administrator and the Remarketing Agents, as amended and supplemented pursuant to the terms thereof.
"Remarketing Terms Determination Date" shall mean, for a Class of the Reset Rate Notes, not later than 3:00 p.m., New York City time, on the eighth Business Day prior to the applicable Reset Date.
"Remarketing Terms Notice" shall mean the notice delivered by the Remarketing Agents to the applicable Registered Owners of a Class of the Reset Rate Notes, the Indenture Trustee
A-8
Exhibit 4.11
and the Rating Agencies on each Remarketing Terms Determination Date containing the information set forth in the Reset Rate Note Procedures.
"Reset Date" shall mean a Quarterly Distribution Date on which certain terms for any Class of the Reset Rate Notes may be changed in accordance with the Reset Rate Note Procedures.
"Reset Period" shall mean, with respect to each Class of the Reset Rate Notes, a period of at least three months (or any other longer duration that is a multiple of three months) that will always end on a Quarterly Distribution Date, which will be the next Reset Date for such Class of the Reset Rate Notes; provided, that no Reset Period may end after the Stated Maturity of such Class of the Reset Rate Notes.
"Reset Rate Note Procedures" shall mean Article II of this Appendix A.
"Reset Rate Notes Carry-over Amount" shall mean the excess, if any, of
(a) the amount of interest on a Reset Rate Note that would have accrued with respect to the related Accrual Period at the interest rate for such Reset Rate Note established pursuant to Section 2.01(b) of this Appendix A over (b) the amount of interest on such Reset Rate Note actually accrued with respect to such Reset Rate Note with respect to such Accrual Period based on the Net Loan Rate, together with the unreduced portion of any such excess from prior Accrual Periods; provided that any reference to "principal" or "interest" in the Indenture and in this Appendix A and the Reset Rate Notes shall not include within the meanings of such words any Reset Rate Notes Carry-over Amount or any interest accrued on any Reset Rate Notes Carry-over Amount.
"Schedule Replacement Order" shall mean an Issuer Order replacing Schedule A to the related Class of the Reset Rate Notes to be delivered with respect to the related Reset Date.
"Spread" shall mean the percentage determined by the Remarketing Agents on the related Spread Determination Date, with respect to a Class of the Reset Rate Notes that is to bear a floating rate of interest, in excess of or below the applicable Index that will be in effect with respect to such Class of the Reset Rate Notes during any Reset Period after the initial Reset Period so as to result in a rate that, in the reasonable opinion of the Remarketing Agents, will enable all of the tendered Reset Rate Notes of the applicable Class to be remarketed by the Remarketing Agents at 100% of the Outstanding Amount of such Reset Rate Notes.
"Spread Determination Date" shall mean, for each Class of the Reset Rate Notes, 3:00 p.m., New York City time, on the third Business Day prior to the related Reset Date.
"Spread Determination Notice" shall mean the notice delivered by the Remarketing Agents to the Registered Owners or beneficial owners of a Class of the Reset Rate Notes, the Indenture Trustee and the Rating Agencies on each related Spread Determination Date containing the information set forth in the Reset Rate Note Procedures.
"Supplemental Remarketing Agency Agreement" shall mean each agreement, substantially in the form of Appendix B to the Remarketing Agreement to be entered into on each Spread Determination Date (unless the Call Option has been exercised or a Failed
A-9
Exhibit 4.11
Remarketing has been declared) among the Remarketing Agents, the Administrator and the Issuer.
"Telerate Page 3750" shall mean the display page so designated on the Moneyline Telerate Service (or such other page as may replace that page on that service for the purpose of displaying comparable rates or prices).
"30/360" shall mean that interest is calculated on the basis of a 360-day year consisting of twelve 30-day months
"Three-Month LIBOR," "Two-Month LIBOR" and "One-Month LIBOR" mean, with respect to any Accrual Period, the London interbank offered rate for deposits in U.S. dollars having the Index Maturity which appears on Telerate Page 3750 as of 11:00 a.m., London time, on the related LIBOR Determination Date. If this rate does not appear on Telerate Page 3750, the rate for that day will be determined on the basis of the rates at which deposits in U.S. dollars, having the Index Maturity and in a principal amount of not less than U.S. $1,000,000, are offered at approximately 11:00 a.m., London time, on that LIBOR Determination Date, to prime banks in the London interbank market by the Reference Banks. The Administrator will request the principal London office of each Reference Bank to provide a quotation of its rate. If the Reference Banks provide at least two quotations, the rate for that day will be the arithmetic mean of the quotations. If the Reference Banks provide fewer than two quotations, the rate for that day will be the arithmetic mean of the rates quoted by major banks in New York City, selected by the Administrator, at approximately 11:00 a.m., New York time, on that LIBOR Determination Date, for loans in U.S. dollars to leading European banks having the Index Maturity and in a principal amount of not less than U.S. $1,000,000. If the banks selected as described above are not providing quotations, Three-Month LIBOR, Two-Month LIBOR and One-Month LIBOR in effect for the applicable Accrual Period will be Three-Month LIBOR, Two-Month LIBOR and One-Month LIBOR, as applicable, in effect for the previous Accrual Period.
"Trust Auction Date" shall have the meaning ascribed to such term in
Section 2.05(c) of this Appendix A.
"Two-Month LIBOR" see definition of "Three-Month LIBOR."
ARTICLE II
RESET RATE NOTE PROCEDURES
Section 2.01. Interest Rates; Principal Payments; Reset Rate Notes Carry-over Amount.
(a) The Class A-1A Notes, the Class A-1B Notes, the Class A-2 Notes and Class A-3 Notes will bear interest from the Closing Date through and including the related Initial Reset Date, payable on each Quarterly Distribution Date, at the rate set forth in the definitions of Class A-1A Notes Interest Rate, Class A-1B Notes Interest Rate, Class A-2 Notes Interest Rate and Class A-3 Notes Interest Rate, respectively. The applicable interest rate for each subsequent Reset Period will be set forth on Schedule A
A-10
Exhibit 4.11
to the applicable Reset Rate Note and determined as set forth below. Interest on any Class of the Reset Rate Notes after the initial Reset Period may be reset to bear either a fixed or floating rate of interest at the option of the Remarketing Agents, in consultation with the Administrator, but shall not exceed Three-Month LIBOR plus 0.75%. Interest on each Class of the Reset Rate Notes shall be paid on each Quarterly Distribution Date at the priority level set forth in Section 5.04(c) of the Indenture.
(b) The interest rate, or the mechanism for calculating the interest rate, on the Reset Rate Notes will be reset as of each Reset Date as determined by (i) the Remarketing Agents, in consultation with the Administrator, with respect to (A) the length of the Reset Period, (B) whether the rate is (1) fixed, and if fixed, the applicable pricing benchmark and Day Count Basis, or (2) floating and, if floating, the applicable Index and Day Count Basis, (C) the applicable Interest Rate Determination Dates within each Accrual Period, (D) the interval between Interest Rate Change Dates during each Accrual Period, (E) whether the Reset Rate Notes constitute Non-amortizing Reset Rate Notes, and (F) the related All Hold Rate; and (ii) the Remarketing Agents, in their sole determination, with respect to the setting of the applicable (A) fixed rate of interest, or (B) Spread to the chosen Index, as applicable.
(c) In the event that a Class of the Reset Rate Notes is reset to bear (or continues to bear) a fixed rate of interest or a floating rate of interest based on an Index other than LIBOR or a Commercial Paper Rate, the Administrator, if required pursuant to Section 2.10 hereof, will be responsible for arranging, on behalf of the Issuer and the Trust Estate, one or more Derivative Products to hedge the floating/fixed rate of interest risk and, together with the Remarketing Agents, for selecting the Counterparties thereto in accordance with the procedures set forth in Section 2.10(d) of this Appendix A. No Class of the Reset Rate Notes will be reset (or continue) to bear interest at a fixed rate or a floating rate based on an Index other than LIBOR or a Commercial Paper Rate or shall constitute Non-Amortizing Reset Rate Notes unless the Rating Agency Condition has been satisfied.
(d) Each Class of the Reset Rate Notes shall be entitled to receive Principal Reduction Payments on each Quarterly Distribution Date, unless such Class of the Reset Rate Notes constitutes Non-amortizing Reset Rate Notes, all as provided in Section 5.05 of the Indenture.
(e) If (A) the Commercial Paper Rate Trigger has occurred, (B) the Class A-1A Notes have not been redeemed on the Quarterly Distribution Date immediately succeeding the occurrence of the Commercial Paper Trigger Rate and (C) the interest rate for the Class A-1A Notes established pursuant to Section 2.01(b) of this Appendix A is greater than the Net Loan Rate, then the Class A-1A Notes Interest Rate for that Accrual Period will be the Net Loan Rate. If (A) the Commercial Paper Rate Trigger has occurred, (B) the Class A-1B Notes have not been redeemed on the Quarterly Distribution Date immediately succeeding the occurrence of the Commercial Paper Trigger Rate and (C) the interest rate for the Class A-1B Notes established pursuant to
Section 2.01(b) of this Appendix A is greater than the Net Loan Rate, then the Class A-1B Notes Interest Rate for that Accrual Period will be the Net Loan Rate. If
A-11
Exhibit 4.11
(A) the Commercial Paper Rate Trigger has occurred (B) the Class A-2 Notes have not been redeemed on the Quarterly Distribution Date immediately succeeding the occurrence of the Commercial Paper Trigger Rate and (C) the interest rate for the Class A-2 Notes established pursuant to Section 2.01(b) of this Appendix A is greater than the Net Loan Rate, then the Class A-2 Notes Interest Rate for that Accrual Period will be the Net Loan Rate. If (A) the Commercial Paper Rate Trigger has occurred (B) the Class A-3 Notes have not been redeemed on the Quarterly Distribution Date immediately succeeding the occurrence of the Commercial Paper Trigger Rate and (C) the interest rate for the Class A-3 Notes established pursuant to Section 2.01(b) of this Appendix A is greater than the Net Loan Rate, then the Class A-3 Notes Interest Rate for that Accrual Period will be the Net Loan Rate. If the interest rate applicable to such Class of the Reset Rate Notes for any Accrual Period is the Net Loan Rate, the Indenture Trustee shall determine the Reset Rate Notes Carry-over Amount, if any, with respect to such Reset Rate Notes for such Accrual Period. Such Reset Rate Notes Carry-over Amount shall bear interest calculated at a rate equal to One-Month LIBOR (as determined by the Administrator, provided the Indenture Trustee has received notice of One-Month LIBOR from the Administrator, and if the Indenture Trustee shall not have received such notice from the Administrator, then as determined by the Indenture Trustee) from the Quarterly Distribution Date for the Accrual Period with respect to which such Reset Rate Notes Carry-over Amount was calculated, until paid. Any payment in respect of Reset Rate Notes Carry-over Amount shall be applied, first, to any accrued interest payable thereon and, second, in reduction of such Reset Rate Notes Carry-over Amount. For purposes of the Indenture and this Appendix A, any reference to "principal" or "interest" herein shall not include within the meaning of such words Reset Rate Notes Carry-over Amount or any interest accrued on any such Reset Rate Notes Carry-over Amount. Such Reset Rate Notes Carry-over Amount shall be separately calculated for each Reset Rate Note by the Indenture Trustee during such Accrual Period in sufficient time for the Indenture Trustee to give notice to each Registered Owner of such Reset Rate Notes Carry-over Amount as required in the next succeeding sentence. Not less than four days before the Quarterly Distribution Date for an Accrual Period with respect to which such Reset Rate Notes Carry-over Amount has been calculated by the Indenture Trustee, the Indenture Trustee shall give written notice to each Registered Owner, the Remarketing Agents and the Issuer of the Reset Rate Notes Carry-over Amount applicable to each Registered Owner's Reset Rate Note, which written notice may accompany the payment of interest made to each such Registered Owner on such Quarterly Distribution Date or otherwise shall be mailed on such Quarterly Distribution Date by first-class mail, postage prepaid, to each such Registered Owner at such Registered Owner's address as it appears on the registration records maintained by the Indenture Trustee. In addition to such Reset Rate Notes Carry-over Amount, such notice shall state, that, unless and until a Reset Rate Note has been redeemed (other than by optional redemption), after which redemption all accrued Reset Rate Notes Carry-over Amounts (and all accrued interest thereon) that remain unpaid shall be canceled and no Reset Rate Notes Carry-over Amount (or interest accrued thereon) shall be paid with respect to any redeemed Reset Rate Note, (a) the Reset Rate Notes Carry-over Amount (and interest accrued thereon calculated at a rate equal to One-Month LIBOR) shall be paid or, in case of a defeasance, provided for by the Indenture Trustee on a Reset Rate
A-12
Exhibit 4.11
Note on the earliest of (i) the date of defeasance or optional
redemption of the Reset Rate Notes, or (ii) the first occurring Quarterly Distribution Date if and to the extent that (x) the Eligible Reset Rate Notes Carry-over Make-Up Amount with respect to such subsequent Accrual Period is greater than zero, and (y) moneys are available pursuant to the terms of the Indenture in an amount sufficient to pay all or a portion of such Reset Rate Notes Carry-over Amount (and interest accrued thereon); and (b) interest shall accrue on the Reset Rate Notes Carry-over Amount at a rate equal to One-Month LIBOR until such Reset Rate Notes Carry-over Amount is paid in full or is cancelled.
The Reset Rate Notes Carry-over Amount (and interest accrued thereon) for Reset Rate Notes shall be paid or, in case of a defeasance, provided for by the Indenture Trustee on Outstanding Reset Rate Notes on the earliest of (a) the date of defeasance or optional redemption of any of the Reset Rate Notes or (b) the first occurring Quarterly Distribution Date if and to the extent that (i) the Eligible Reset Rate Notes Carry-over Make-Up Amount with respect to such Accrual Period is greater than zero, and (ii) on such Quarterly Distribution Date there are sufficient moneys in the Collection Fund to pay all interest due on the Reset Rate Notes on such Quarterly Distribution Date. Any Reset Rate Notes Carry-over Amount (and any interest accrued thereon) on any Reset Rate Note which is due and payable on a Quarterly Distribution Date, when such Class of the Reset Rate Note is to be redeemed (other than by optional redemption), shall be paid to the Registered Owner thereof on said Quarterly Distribution Date to the extent that moneys are available therefor in accordance with the provisions of this Appendix A; provided, however, that any Reset Rate Notes Carry-over Amount (and any interest accrued thereon) which is not yet due and payable on said Quarterly Distribution Date shall be cancelled with respect to said Reset Rate Note that is to be redeemed (other than by optional redemption) on said Quarterly Distribution Date and shall not be paid on any succeeding Quarterly Distribution Date. To the extent that any portion of the Reset Rate Notes Carry-over Amount (and any interest accrued thereon) remains unpaid after payment of a portion thereof, such unpaid portion shall be paid in whole or in part as required hereunder until fully paid or, in case of a defeasance, provided for by the Indenture Trustee on the earliest of (a) the date of defeasance or optional redemption of any of the Reset Rate Notes or
(b) the next occurring Quarterly Distribution Date or Dates, as necessary, if and to the extent that the conditions in the second preceding sentence are satisfied. On any Quarterly Distribution Date on which the Indenture Trustee pays only a portion of the Reset Rate Notes Carry-over Amount (and any interest accrued thereon) on Reset Rate Notes, the Indenture Trustee shall give written notice in the manner set forth in the immediately preceding paragraph to the Registered Owner of such Reset Rate Note receiving such partial payment of the Reset Rate Notes Carry-over Amount remaining unpaid on such Reset Rate Note.
The Quarterly Distribution Date or other date on which such Reset Rate Notes Carry-over Amount (or any interest accrued thereon) for Reset Rate Notes shall be paid shall be determined by the Indenture Trustee in accordance with the provisions of the immediately preceding paragraph, and the Indenture Trustee shall make payment of the Reset Rate Notes Carry-over Amount (and any interest accrued thereon) in the same manner as, and from the same Account from which, it pays interest on the Reset Rate Notes on a Quarterly Distribution Date. Any payment of Reset Rate Notes Carry-over
A-13
Exhibit 4.11
Amounts (and interest accrued thereon) shall reduce the amount of Eligible Reset Rate Notes Carry-over Make-Up Amount.
Section 2.02. End of Reset Period Notice.
(a) Unless notice of the exercise of the related Call Option as described in Section 2.06(c) of this Appendix A has been given, the Administrator, not less than 15 nor more than 30 calendar days prior to any Remarketing Terms Determination Date, will (i) give written notice (which may include facsimile or other electronic transmission, if permitted pursuant to the recipient's standard procedures) to the Securities Depository, with a copy to the Indenture Trustee, notifying them of the upcoming Reset Date and that the applicable Class of the Reset Rate Notes is subject to mandatory, automatic tender on the related Reset Date unless the applicable Registered Owner elects not to tender by the timely delivery of a Hold Notice; and (ii) request that the Securities Depository notify its participants of the contents of that notice given to the Securities Depository, the Remarketing Terms Notice to be given on the Remarketing Terms Determination Date pursuant to Section 2.03(c) of this Appendix A, the Spread Determination Notice to be given on the Spread Determination Date pursuant to Section 2.09(d) of this Appendix A, and the procedures concerning the timely delivery of a Hold Notice pursuant to Section 2.08 of this Appendix A that must be followed if any beneficial owner of a Reset Rate Note wishes to retain its Reset Rate Notes.
(b) The Administrator will also include the names and contact information of any applicable Remarketing Agents confirmed or appointed by the Administrator on or before the date the notice given pursuant to subsection (a) of this Section, or if no Remarketing Agents have then been so chosen, the Administrator will provide adequate contact information for Registered Owners to receive information regarding the upcoming Reset Date.
(c) If the Securities Depository or its respective nominee is no longer the holder of record of the related Class of the Reset Rate Notes, the Administrator, or the Remarketing Agents on its behalf, will send the Registered Owners of those Reset Rate Notes, with a copy to the Indenture Trustee, the required notice setting forth the information in subsections (a) and (b) of this Section not less than 15 nor more than 30 calendar days prior to any Remarketing Terms Determination Date. In addition, in the event that Definitive Certificates evidencing an interest in the Reset Rate Notes are issued, the Administrator shall cause the Indenture Trustee to provide any additional procedures applicable to such Reset Date while in definitive form to the related Registered Owners.
Section 2.03. Remarketing Terms Determination Date.
(a) Subject to the provisions of the Remarketing Agreement, prior to the Remarketing Terms Determination Date, and unless the related Call Option has been exercised, the Purchase Option pursuant to
Section 2.07(b) of this Appendix A has been exercised or the Financed Eligible Loans have been auctioned pursuant to Section 2.13 of this Appendix A, the Administrator shall re-affirm the capability of the initial
A-14
Exhibit 4.11
Remarketing Agents to perform under the Remarketing Agreement, or enter into new remarketing agreements with other or additional remarketing agents, who shall function as the Remarketing Agents with respect to the related Reset Date. On each Remarketing Terms Determination Date, the Issuer, the Administrator and the Remarketing Agents will enter into an Initial Remarketing Agency Agreement for the remarketing of the related Class of the Reset Rate Notes.
(b) Unless the related Call Option has been exercised, the Purchase Option pursuant to Section 2.07 of this Appendix A has been exercised or the Financed Eligible Loans have been auctioned pursuant to Section 2.13 of this Appendix A, the Remarketing Agents, in consultation with the Administrator, will establish the following terms for the applicable Class of the Reset Rate Notes by the Remarketing Terms Determination Date:
(i) the expected weighted average life of that Class of the Reset Rate Notes, based on prepayment and other assumptions customary for comparable securities;
(ii) the name and contact information of the Remarketing Agents;
(iii) the next Reset Date and length of such Reset Period;
(iv) the interest rate mode (i.e., fixed rate or floating rate);
(v) if in floating rate mode, the applicable Index;
(vi) if in floating rate mode, the interval between Interest Rate Change Dates;
(vii) if in floating rate mode, the applicable Interest Rate Determination Dates;
(viii) if in fixed rate mode, the applicable fixed rate pricing benchmark;
(ix) if in fixed rate mode, whether there will be a related Derivative Product and, if so, the identities of the Eligible Counterparties from which bids will be solicited, if any;
(x) if in floating rate mode, based on an Index other than LIBOR or a Commercial Paper Rate, whether there will be a related Derivative Product and, if so, the identities of the Eligible Counterparties from which bids will be solicited, if any;
(xi) the applicable Accrual Period and Day Count Basis;
(xii) the related All Hold Rate;
(xiii) whether such Class of the Reset Rate Notes will constitute Non-amortizing Reset Rate Notes;
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Exhibit 4.11
(xiv) the formula for calculating the Make-whole Premium, if any,
(xv) if Definitive Certificates are to be issued, the procedures for delivery and exchange thereof and for dealing with lost or mutilated Reset Rate Notes; and
(xvi) any other relevant terms (other than the related Spread or fixed rate of interest, as applicable) incidental to the foregoing for the next Reset Period;
provided, that any interest rate mode, other than a floating rate based on LIBOR or the Commercial Paper Rate, will require that the Rating Agency Condition be satisfied prior to the delivery of the related Remarketing Terms Notice.
(c) The Remarketing Agents will communicate all of the information established in subsection (b) of this Section in the Remarketing Terms Notice required to be given in writing (which may include facsimile or other electronic transmission if in accordance with the Securities Depository's standard procedures) to the Securities Depository or the Registered Owners (if not the Securities Depository) of the applicable Class of the Reset Rate Notes, as applicable, the Indenture Trustee and the Rating Agencies on the related Remarketing Terms Determination Date.
(d) In addition, prior to the Remarketing Terms Determination Date, the Administrator shall cause the Schedule Replacement Order with respect to the Reset Rate Notes to be delivered to the Indenture Trustee and the Securities Depository.
Section 2.04. All Hold Rate. On each Remarketing Terms Determination Date, the Remarketing Agents, in consultation with the Administrator, will establish the related All Hold Rate. If 100% of the Registered Owners of a Class of the Reset Rate Notes deliver timely Hold Notices wherein they elect to hold their Reset Rate Notes for the next Reset Period, the related interest rate for that Class during the immediately following Reset Period will be the All Hold Rate. The All Hold Rate will be the minimum rate of interest that will be effective for the upcoming Reset Period. If any of the related Registered Owners are deemed to have tendered their Class of the Reset Rate Notes and the rate of interest using the Spread or fixed rate of interest established on the Spread Determination Date is higher than the All Hold Rate, all Registered Owners who delivered a Hold Notice agreeing to be subject to the All Hold Rate instead will be entitled to the higher rate of interest for the upcoming Reset Period.
Section 2.05. Failed Remarketing.
(a) With respect to each Reset Date for which the holder of the Call Option does not timely deliver written notice of its intention to exercise the Call Option pursuant to Section 2.06(a) of this Appendix A or the holder of the Purchase Option does not timely deliver written notice of its intention to exercise its Purchase Option pursuant to Section 2.07(a) or (b) of this Appendix A and the Financed Eligible Loans have not been auctioned pursuant to Section 2.13 of this Appendix A and if any of the conditions set forth in the definition of "Failed Remarketing" are applicable, a Failed Remarketing will be declared by the Remarketing Agents and the provisions of this Section will apply. In order to prevent the declaration of a Failed Remarketing, the Remarketing Agents will
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Exhibit 4.11
have the option, but not the obligation, to purchase any Reset Rate Notes tendered that they are not otherwise able to remarket or with respect to which a committed purchaser defaults on their purchase obligations. If at any time a Failed Remarketing is declared on a Class of the Reset Rate Notes on the related Spread Determination Date, (i) all Reset Rate Notes of such Class will be deemed to have been held by the applicable Registered Owners on the related Reset Date, regardless of any deemed tenders made to Remarketing Agents; (ii) except as provided in Section 2.01(e) of this Appendix A, the Failed Remarketing Rate for such Class of the Reset Rate Notes will apply; and (iii) a Reset Period of three months will be established for such Class.
(b) If there is a Failed Remarketing of a Class of the Reset Rate Notes, Registered Owners of that Class shall not be entitled to exercise any remedies as a result of the failure of their Class of the Reset Rate Notes to be remarketed on the related Reset Date.
(c) If a Class of the Reset Rate Notes bears interest at the Failed Remarketing Rate and the holder of the Purchase Option does not timely deliver written notice of its intention to exercise its Purchase Option pursuant to Section 2.07(a) or (b) of this Appendix A, the Indenture Trustee (or its designated agent), if requested by the Administrator, shall offer for sale a Pro rata Portion of the Financed Eligible Loans held in the Trust Estate. Any portfolio of the Financed Eligible Loans sold pursuant to the Purchase Option set forth in
Section 2.07(a) of this Appendix A or pursuant to the auction procedures described in this subsection (c) shall have representative characteristics substantially equivalent to the portfolio of all Financed Eligible Loans including, without limitation, such characteristics as average borrower indebtedness, mix of type of loans (Stafford, PLUS, consolidation, subsidized, unsubsidized), delinquency and default rate, loans in claim status, maturity, type of educational institution for which the loan funded costs of attendance (four year, two year, proprietary and nonproprietary), identity of Guarantee Agency, and other similar characteristics which may impact upon the value of such Financed Eligible Loans. Any such sale shall be consummated at least two Business Days prior to the next Reset Date (the "Trust Auction Date"). The Indenture Trustee shall provide written notice to the Issuer of any such offer for sale at least three Business Days in advance of the Trust Auction Date. If the holder of the Purchase Option does not deliver notice of its intention to exercise the Purchase Option and deliver an amount equal to the purchase price within 25 days following a Reset Date on which a Class of the Reset Rate Notes bears interest at the Failed Remarketing Rate, the Administrator may instruct the Indenture Trustee to auction the Pro rata Portion of the Financed Eligible Loans. Any Nelnet Eligible Purchaser may bid at any such auction. If at least two independent bids are received, the Indenture Trustee (or its designated agent) shall solicit and resolicit new bids from all participating bidders until only one bid remains or the remaining bidders decline to resubmit bids. The Indenture Trustee shall accept the highest of such remaining bids if it is at least equal to the Pro rata Minimum Purchase Amount. In the event that only one or more Nelnet Eligible Purchasers bid at such auction and fewer than two independent bids are received, the Indenture Trustee shall accept the highest of such remaining bids if it is at least equal to the Pro rata Minimum Purchase Amount and the fair market value of such Financed Eligible Loans as of the Quarterly Distribution Date immediately preceding the Trust Auction Date. If the highest
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Exhibit 4.11
remaining bid is not equal to or in excess of the higher of the amounts described in the preceding two sentences, the Indenture Trustee shall not consummate such sale. The Pro rata Minimum Purchase Amount means that amount, together with any amount on deposit in any related Account of the Note Payment Fund, the Supplemental Interest Fund or the Remarketing Fee Fund corresponding to such Class of the Reset Rate Notes and a Pro rata Portion of the amounts on deposit in the Reserve Fund and the Acquisition Fund (other than Financed Eligible Loans), each after the distribution of amounts on deposit in the Collection Fund on the most recent Distribution Date, which is equal to or in excess of the amount necessary to redeem the Class of the Reset Rate Notes bearing interest at the Failed Remarketing Rate pursuant to the redemption provisions of Section 2.09(b) of the Indenture, to pay all amounts due (including any Issuer Derivative Payments and applicable Termination Payments) on any Derivative Product corresponding to such Class of the Reset Rate Notes and to pay a Pro rata Portion of any Program Expenses to such redemption date. The Indenture Trustee may consult, and, at the direction of the Issuer, shall consult, with a financial advisor, including an Initial Purchaser, a Remarketing Agent or the Administrator, to determine if the fair market value of the Financed Eligible Loans has been offered by any Nelnet Eligible Purchaser. From the proceeds of the sale of the Financed Eligible Loans and the amounts on deposit in the Funds and Accounts described in this subsection (c), the Indenture Trustee shall deposit amounts sufficient to redeem the related Class of the Reset Rate Notes on the next succeeding Reset Date pursuant to the mandatory redemption provisions of Section 2.09(b) of the Indenture and to pay any Issuer Derivative Payments corresponding to such Class of the Reset Rate Notes into separate Accounts established by the Indenture Trustee within the Note Payment Fund and shall deposit the remainder to the Collection Fund to pay the Pro rata Portion of the Program Expenses to such Reset Date. The Indenture Trustee shall use the amounts on deposit in those Accounts to redeem such Class of the Reset Rate Notes on the applicable Reset Date and to pay all amounts due (including any Issuer Derivative Payments and applicable Termination Payments) pursuant to the corresponding Derivative Product. If an auction is not completed and the Class of the Reset Rate Notes continues to bear interest at the Failed Remarketing Rate, the Administrator may request the Indenture Trustee to solicit bids for the Financed Eligible Loans with respect to any Quarterly Distribution Date for which the holder of the Purchase Option described in Section 2.05(a) of this Appendix A has not delivered timely notice of its intention to exercise its Purchase Option or delivered an amount equal to the purchase price by the specified date upon terms similar to those described above, and the Indenture Trustee shall be obligated to make such solicitations if requested to do so by the Administrator.
Section 2.06. Call Option.
(a) With respect to each Reset Date, Nelnet, Inc. is hereby granted a Call Option for the purchase of not less than 100% of that Class of the Reset Rate Notes, exercisable at a price equal to 100% of the Outstanding Amount of that Class, less all amounts distributed to the related Registered Owners of the Reset Rate Notes as a payment of principal on the related Quarterly Distribution Date, plus any accrued and unpaid interest not paid by the Issuer on the applicable Reset Date and any Reset Rate
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Exhibit 4.11
Notes Carry-over Amounts (and any accrued interest thereon) due and payable on such Class of the Reset Rate Notes (as described in Appendix A hereto).
(b) Nelnet, Inc. may transfer ownership of the Call Option at any time to any Nelnet Eligible Purchaser.
(c) The Call Option may be exercised at any time on or prior to the Spread Determination Date or before the declaration of a Failed Remarketing, as applicable, by the holder thereof by delivering a written notice stating its desire to exercise the Call Option on the Reset Date to the Securities Depository, the Indenture Trustee, the Remarketing Agents and the Rating Agencies; provided that the Call Option may not be exercised before the day following the last Quarterly Distribution Date immediately preceding the next applicable Reset Date. Once written notice of the exercise of the Call Option is given, such exercise may not be rescinded. All amounts due and owed to the applicable Registered Owners shall be remitted on or before the related Reset Date by the holder of the Call Option in accordance with the standard procedures established by the Securities Depository for transfer of securities to ensure timely payment to the related Registered Owners of the Reset Rate Notes.
(d) If the Call Option is exercised with respect to any Class of the Reset Rate Notes, (i) the interest rate on that Class will be the Call Rate; and (ii) a Reset Period of three months will be established. At the end of such three month Reset Period, the holder of the Call Option may either remarket that Class pursuant to the remarketing procedures set forth in this Appendix A and in the Remarketing Agreement or retain that Class for one or more successive three-month Reset Periods at the then existing Call Rate. In the event the holder of the Call Option chooses to remarket that Class of the Reset Rate Notes, such holder shall be solely responsible for all costs and expenses relating to the preparation of any new offering document and any other related costs and expenses associated with such remarketing, other than the fees of the Remarketing Agents, as more fully set forth in Section 3 of the Remarketing Agreement.
(e) If notice that the Call Option is going to be exercised with respect to a Class of the Reset Rate Notes is given pursuant to subsection (c) of this Section, but such Class of the Reset Rate Notes is not purchased on the Reset Date, a Failed Remarketing shall be deemed to have occurred and such Class of the Reset Rate Notes shall bear interest at the Failed Remarketing Rate.
(f) Other than in connection with the exercise of a Call Option, none of Nelnet, Inc., the Issuer or any of their affiliates shall have the ability to purchase any Reset Rate Notes tendered to the Remarketing Agents.
Section 2.07. Purchase Options.
(a) Nelnet, Inc. is hereby granted an option to purchase a Pro rata Portion of Financed Eligible Loans held in the Trust Estate at a purchase price equal to the greater of the Pro rata Minimum Purchase Amount and the fair market value of such Financed Eligible Loans as of the Quarterly Distribution Date immediately preceding the date of
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Exhibit 4.11
sale for the purpose of redeeming any Class of the Reset Rate Notes on any Reset Date pursuant to Section 2.09(a) of the Indenture. Any portfolio of Financed Eligible Loans sold pursuant to this subsection
(a) shall have representative characteristics substantially equivalent to the portfolio of all Financed Eligible Loans including, without limitation, such characteristics as average borrower indebtedness, mix of type of loans (Stafford, PLUS, consolidation, subsidized, unsubsidized), delinquency and default rate, loans in claim status, maturity, type of educational institution for which the loan funded costs of attendance (four year, two year, proprietary and nonproprietary), identity of Guarantee Agency, and other similar characteristics which may impact upon the value of such Financed Eligible Loans. The holder of the Purchase Option shall exercise such option by delivering a written notice stating its desire to exercise this option to the Securities Depository, the Indenture Trustee, the Remarketing Agents and the Rating Agencies on the Spread Determination Date for such Class of the Reset Rate Notes that it intends to exercise its Purchase Option and by delivering to the Indenture Trustee an amount equal to the purchase price of such Financed Eligible Loans on or before the second Business Day prior to the Reset Date for such Class of the Reset Rate Notes. If the holder of the Purchase Option fails to provide the required notice or purchase price, such Class of the Reset Rate Notes shall bear interest at the Failed Remarketing Rate during the following Reset Period. The Indenture Trustee may consult, and, at the direction of the Issuer, shall consult, with a financial advisor, including an underwriter of the Series 2004-1 Notes or the Administrator, to determine if the fair market value of the Financed Eligible Loans has been offered by any Nelnet Eligible Purchaser. From the proceeds of the sale of the Financed Eligible Loans and the amounts on deposit in the Funds and Accounts described in this subsection (a), the Indenture Trustee shall deposit amounts sufficient to redeem the related Class of the Reset Rate Notes on the next succeeding Quarterly Distribution Date occurring after August 1, 2005 pursuant to the mandatory redemption provisions of Section 2.09(a) of the Indenture and to pay any Issuer Derivative Payments corresponding to such Class of the Reset Rate Notes into separate Accounts established by the Indenture Trustee within the Note Payment Fund and shall deposit the remainder to the Collection Fund. The Indenture Trustee shall use the amounts on deposit in those Accounts to redeem such Class of the Reset Rate Notes on the applicable Reset Date and to pay any such Issuer Derivative Payments pursuant to the corresponding Derivative Product.
(b) If the Commercial Paper Rate Trigger has occurred, Nelnet, Inc. is hereby granted an option to purchase all of the Financed Eligible Loans held in the Trust Estate at a purchase price equal to the greater of the fair market value of such Financed Eligible Loans or the Commercial Paper Rate Minimum Purchase Amount. The Commercial Paper Rate Minimum Purchase Amount means the amount, together with any amounts on deposit in the Funds established pursuant to the Indenture, that is sufficient to redeem the Series 2004-1 Notes pursuant to the redemption provisions of Section 2.09(e) and (f)(ii) of the Indenture, to pay all amounts due (including any Issuer Derivative Payments and applicable Termination Payments) on any Derivative Product and to pay any Program Expenses to the final redemption date of the Series 2004-1 Notes. The holder of the Purchase Option shall exercise such option by delivering written notice stating its desire to exercise this option to the Securities Depository, the Indenture Trustee, the Remarketing Agents and the Rating Agencies at least thirty (30) days prior to the next succeeding Quarterly Distribution Date that it intends to exercise its Purchase Option and by delivering to the Indenture Trustee an amount equal to the purchase price determined as described above at least thirty (30) days prior to the next
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Exhibit 4.11
succeeding Quarterly Distribution Date. If the holder of the Purchase Option fails to provide the required notice or an amount sufficient to redeem the Series 2004-1 Notes, the Trustee shall attempt to sell the Financed Loans held within the Trust Estate pursuant to Section 2.13 of this Appendix A. The Indenture Trustee may consult, and, at the direction of the Issuer, shall consult, with a financial advisor, including an initial purchaser or remarketing agent of the Series 2004-1 Notes or the Administrator, to determine if the fair market value of the Financed Eligible Loans has been offered by any Nelnet Eligible Purchaser. From the proceeds of the sale of the Financed Eligible Loans and the amounts on deposit in the Funds and Accounts described in this subsection (b), the Indenture Trustee shall deposit amounts sufficient to redeem each Class of the Series 2004-1 Notes on the next succeeding Quarterly Distribution Date occurring on or after August 1, 2005 or Auction Rate Distribution Date, as appropriate, pursuant to the mandatory redemption provisions of Section 2.09(e) and
(f)(ii) of the Indenture and to pay all amounts due (including any Issuer Derivative Payments and applicable Termination Payments) on any Derivative Product into separate Accounts established by the Indenture Trustee within the Note Payment Fund and shall deposit the remainder to the Collection Fund to pay the remaining Program Expenses to the final redemption date of the Series 2004-1 Notes. The Indenture Trustee shall use the amounts on deposit in those Accounts to redeem the Series 2004-1 Notes on their Quarterly Distribution Date or Auction Rate Distribution Date, as appropriate, and to pay any Issuer Derivative Payments (including all applicable Termination Payments) pursuant to the corresponding Derivative Product.
(c) Nelnet, Inc. may transfer ownership of either or both of the Purchase Options described in this Section at any time to any Nelnet Eligible Purchaser.
Section 2.08. Hold Notice. At any time on or after the Remarketing Terms Determination Date, but on or prior to the Notice Date, the Registered Owners of the applicable Reset Rate Notes will have the option to deliver a Hold Notice to any Remarketing Agent setting forth their desire to hold their Reset Rate Notes for the next Reset Period at a rate of interest not less than the All Hold Rate and on the terms set forth in the Remarketing Terms Notice. Such Hold Notice may be delivered as an oral statement to a Remarketing Agent, if subsequently confirmed in writing within 24 hours, which confirmation may be in the form of an e-mail if timely received by the applicable Remarketing Agent. If a Registered Owner does not timely deliver a Hold Notice to a Remarketing Agent (and such Hold Notice will not be considered delivered until actually received by such Remarketing Agent), 100% of that Registered Owner's Reset Rate Notes will be deemed to have been tendered for remarketing. Any duly delivered Hold Notice will be irrevocable, but will be subject to a mandatory tender of the applicable Reset Rate Notes pursuant to any exercise of the related Call Option. All of the Reset Rate Notes of an applicable Class, whether or not tendered, will bear interest during any Reset Period on the same terms.
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Exhibit 4.11
Section 2.09. Spread Determination Date.
(a) On each Spread Determination Date, unless a Failed Remarketing has been declared or the related Call Option has been exercised, the Administrator, the Issuer and the Remarketing Agents will enter into a Supplemental Remarketing Agency Agreement.
(b) If pursuant to the Remarketing Terms Notice, the Remarketing Agents, in consultation with the Administrator, have determined that a Class of the Reset Rate Notes is to be reset to bear a fixed rate of interest, then the applicable fixed rate of interest for the corresponding Reset Period will be determined on the Spread Determination Date by adding (i) the applicable spread as determined by the Remarketing Agents on the Spread Determination Date; and (ii) the yield to maturity on the Spread Determination Date of the applicable fixed rate pricing benchmark, selected by the Remarketing Agents, as having an expected weighted average life based on a scheduled maturity at the next Reset Date, which would be used in accordance with customary financial practice in pricing new issues of asset-backed securities of comparable average life; provided that such fixed rate of interest will in no event be lower than the related All Hold Rate. The Remarketing Agents shall determine the applicable fixed rate of interest for such Class of the Reset Rate Notes (by reference to the applicable fixed rate pricing benchmark plus or minus the spread determined on the Remarketing Terms Determination Date) on each Spread Determination Date irrespective of whether no remarketing will occur as the result of the application of the All Hold Rate.
(c) If pursuant to the Remarketing Terms Notice, the Remarketing Agents, in consultation with the Administrator, have determined that a Class of the Reset Rate Notes is to be reset to bear a floating rate of interest, then, on the related Spread Determination Date, the Remarketing Agents will establish the applicable Spread to be added or subtracted from the applicable Index; provided that such floating rate of interest will in no event be lower than the related All Hold Rate.
(d) On or immediately following the Spread Determination Date, the Remarketing Agents will communicate in writing the contents of the Spread Determination Notice to the Securities Depository (which may include facsimile or other electronic transmission if in accordance with the recipient's standard procedures) with instructions to distribute such notice its related participants or the Registered Owners of the applicable Class of the Reset Rate Notes, as applicable, the Indenture Trustee and the Rating Agencies. The Spread Determination Notice will contain: (i) the determined Spread or fixed rate of interest, as the case may be, or, if applicable, a statement that the All Hold Rate or the Failed Remarketing Rate will be in effect; (ii) if applicable, the identity of any selected Counterparty or Counterparties; (iii) if applicable, the floating rate (or rates) of interest to be due to each selected Counterparty on each Distribution Date during the upcoming Reset Period; and (iv) any other information that the Administrator or the Remarketing Agents deem applicable.
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Exhibit 4.11
Section 2.10. Derivative Products.
(a) If the Remarketing Agents, in consultation with the Administrator, (i) have determined that the interest rate for a Class of the Reset Rate Notes for the next Reset Period will be based on an Index other than LIBOR or a Commercial Paper Rate; and (ii) determine that entering into a Derivative Product with respect to such Class of the Reset Rate Notes would be in the best interest of the Trust Estate based on existing market conditions, then on or prior to the Remarketing Terms Determination Date, the Administrator will arrange for, and, on the related Reset Date, will enter into (not for its own account but solely as Administrator on behalf of the Issuer and the Trust Estate) or will instruct the Indenture Trustee to enter into (not in its individual capacity but solely as Indenture Trustee) one or more Derivative Products with one or more Eligible Counterparties for the next Reset Period to hedge against some or all of the basis risk.
(b) If the Remarketing Agents, in consultation with the Administrator, (i) have determined that the interest rate for a Class of the Reset Rate Notes for the next Reset Period will be a fixed rate and (ii) determine that entering into a Derivative Product with respect to such Class of the Reset Rate Notes would be in the best interest of the Trust Estate based on existing market conditions, then on or prior to the Remarketing Terms Determination Date, the Administrator will arrange for, and, on the related Reset Date, will enter into (not for its own account but solely as Administrator on behalf of the Issuer and the Trust Estate) or will instruct the Indenture Trustee to enter into (not in its individual capacity but solely as Indenture Trustee) one or more Derivative Products with one or more Eligible Counterparties for the next Reset Period to facilitate the Issuer's ability to pay the applicable Class of the Reset Rate Notes interest at its fixed rate.
(c) In exchange for providing to the Issuer the related Counterparty Payment, each Counterparty will be entitled to receive on each Distribution Date from the Issuer an Issuer Derivative Payment in the priority set forth in Section 5.04(c) of the Indenture.
(d) The Administrator and the applicable Remarketing Agents, in determining the Counterparty to the required Derivative Product, will solicit bids from at least three Eligible Counterparties and will select the lowest of these bids to provide the Derivative Product. If the lowest bidder specifies a notional amount that is less than the Outstanding Amount of the related Class of the Reset Rate Notes, the Administrator and the applicable Remarketing Agents may select more than one Eligible Counterparty, but only to the extent that such additional Eligible Counterparties have provided the next lowest received bid or bids, and enter into more than one Derivative Product that result in the Rating Agency Condition being satisfied. On or before the Spread Determination Date, the Administrator and the Remarketing Agents will select the Counterparty or Counterparties and the Administrator shall cause the Issuer to enter into the required Derivative Products on the related Reset Date for the upcoming Reset Period.
(e) It is a condition precedent to the entering into of any Derivative Product and the setting of the amount to be paid to the related Counterparty that the Rating Agency Condition is satisfied. No Derivative Product will be entered into by the Issuer for any Reset Period where either the related Call Option has been exercised or a Failed
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Exhibit 4.11
Remarketing has been declared. Each such Derivative Product, will terminate at the earlier to occur of the next related Reset Date or a specified termination event set forth in the related Derivative Product.
Section 2.11. Payment of Principal on the Reset Rate Notes. If, on any Quarterly Distribution Date, Principal Reduction Payments would be payable to a Class of Non-Amortizing Reset Rate Notes, those Principal Reduction Payments will be allocated to that Class and deposited into the Class A-1A Redemption Account, the Class A-1B Redemption Account, the Class A-2 Redemption Account or the Class A-3 Redemption Account of the Note Payment Fund, as appropriate, where it will remain until the next Reset Date for that Class of the Reset Rate Notes as provided in Section 5.05(b) of the Indenture, unless such amounts are required to be transferred to the Collection Fund pursuant to Section 5.05(b) or an Event of Default under the Indenture has occurred (in which case the Indenture Trustee will distribute all sums on deposit therein to the Registered Owners of the Reset Rate Notes in accordance with the provisions of Section 6.02 of the Indenture). On each Reset Date for a Class of the Reset Rate Notes which constituted Non-Amortizing Reset Rate Notes during the preceding Reset Period, all sums, if any, then on deposit in the related Class A-1A Redemption Account, Class A-1B Redemption Account, Class A-2 Redemption Account or the Class A-3 Redemption Account of the Note Payment Fund, including any allocation of principal made on the same date will be distributed by the Indenture Trustee, at the direction of the Administrator, as set forth in Section 5.05 of the Indenture, to the Registered Owners of that Class of the Reset Rate Notes, as of the related Record Date, in reduction of principal of such Class; provided, that, in the event on any Quarterly Distribution Date the amount on deposit in the related Class A-1A Redemption Account, Class A-1B Redemption Account, Class A-2 Redemption Account or the Class A-3 Redemption Account of the Note Payment Fund would equal the Outstanding Amount of that Class, no additional amounts will be deposited into the related Class A-1A Redemption Account, Class A-1B Redemption Account, Class A-2 Redemption Account or the Class A-3 Redemption Account of the Note Payment Fund and all amounts therein will be distributed by the Indenture Trustee, at the direction of the Administrator, as set forth in
Section 5.05 of the Indenture, on the next related Reset Date to the related Registered Owners, and on such Reset Date that Class of the Reset Rate Notes will no longer be Outstanding.
Section 2.12. Remarketing Agents; Remarketing Fee Fund.
(a) The initial Remarketing Agents, appointed pursuant to the terms of the Remarketing Agreement are Credit Suisse First Boston LLC and Deutsche Bank Securities Inc. The terms and conditions of the Remarketing Agreement will govern the duties and obligations of the Remarketing Agents. The Administrator, the Issuer and the Remarketing Agents will enter into on each related (i) Remarketing Terms Determination Date, an Initial Remarketing Agency Agreement, unless (A) a Failed Remarketing is declared, or (B) the related Call Option has been exercised on or prior to such date; and (ii) Spread Determination Date, a Supplemental Remarketing Agency Agreement, unless (A) a Failed Remarketing is declared, (B) the related Call Option has been exercised, or (C) 100% of the related Registered Owners have timely delivered a Hold Notice and the All Hold Rate will apply for the next related Reset Period.
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Exhibit 4.11
(b) Excluding all Reset Rate Notes of a Class for which a Remarketing Agent has received a timely delivered Hold Notice (or if the related Call Option has been exercised or a Failed Remarketing has been declared), on the Reset Date that commences each Reset Period, each related Reset Rate Note will be automatically tendered, or deemed tendered, to the relevant Remarketing Agent for remarketing by such Remarketing Agent on the Reset Date at 100% of its Outstanding principal amount. If the related Class of the Reset Rate Notes is held in book-entry form, subject to subsection (c) of this Section, 100% of the Outstanding Amount of such Reset Rate Notes will be paid by the Remarketing Agents on the related Reset Date in accordance with the standard procedures of the Securities Depository.
(c) The Remarketing Agents will attempt, on a reasonable efforts basis and in accordance with the terms and conditions of the Remarketing Agreement and the related Remarketing Agency Agreement, to remarket the tendered Reset Rate Notes of the applicable Class at a price equal to 100% of the Outstanding principal amount so tendered. Purchasers of the Reset Rate Notes will be credited with their positions on the Reset Date with respect to positions held through DTC or on the next Business Day with respect to positions held through Euroclear or Clearstream.
(d) Each of the Remarketing Agents, in its individual or any other capacity, may buy, sell, hold and deal in any class of the Series 2004-1 Notes, including, but not limited to, purchasing any tendered Reset Rate Notes as part of the remarketing process. Any Remarketing Agent that owns a Reset Rate Note may exercise any vote or join in any action which any beneficial owner of any Class of Series 2004-1 Notes may be entitled to exercise or take with like effect as if it did not act in any capacity under the Remarketing Agency Agreement. Any Remarketing Agent, in its individual capacity, either as principal or agent, may also engage in or have an interest in any financial or other transaction with the Issuer, each Servicer, the Indenture Trustee (in its individual capacity), the Eligible Lender Trustee (in its individual capacity) or the Administrator as freely as if it did not act in any capacity under the Remarketing Agreement or any Remarketing Agency Agreement. No Registered Owner or beneficial owner of any Reset Rate Note will have any rights or claims against any Remarketing Agent as a result of such Remarketing Agent's not purchasing any tendered Reset Rate Note, which results in the declaration of a Failed Remarketing.
(e) Each of the Remarketing Agents will be entitled to receive a fee in connection with their services rendered for each successful remarketing of a Class of the Reset Rate Notes in the amount set forth in the Remarketing Agreement and the related Remarketing Agency Agreement. Subject to the terms and conditions set forth in the Remarketing Agreement, the Administrator, in its sole discretion, may change the Remarketing Agents for any Class of the Reset Rate Notes for any Reset Period at any time on or before the related Remarketing Terms Determination Date. Furthermore, a Remarketing Agent may resign at any time; provided that no resignation may become effective on a date that is later than 15 Business Days prior to a Remarketing Terms Determination Date.
A-25
Exhibit 4.11
(f) In accordance with Section 2.11(b) of the Indenture, on the Closing Date, the Issuer, a portion of the proceeds received from the sale of the Series 2004-1 Notes will be deposited into the Remarketing Fee Fund, which will be held by the Indenture Trustee for the benefit of the Issuer and the Remarketing Agents. The fees associated with each successful remarketing will be payable directly to the Remarketing Agents from amounts on deposit from time to time in the Remarketing Fee Account. On each Quarterly Distribution Date, Revenues will be deposited into the Remarketing Fee Account, in the priority set forth in Section 5.04(c) of the Indenture, in an amount up to the Aggregate Quarterly Funding Amount. In the event that the fees owed to any Remarketing Agent on a Reset Date exceeds the amount then on deposit (after giving effect to distributions made on such Reset Date) in the Remarketing Fee Account, such shortfall shall be paid from the Collection Fund on future Quarterly Distribution Dates in the priority set forth in Section 5.04(c) of the Indenture. The Issuer shall also be responsible for certain remarketing costs and expenses to the extent set forth in Section 3 of the Remarketing Agreement, which shall be paid on each Quarterly Distribution Date from the Collection Fund at the priority set forth in Section 5.04(c) of the Indenture.
Section 2.13. Auction of Financed Eligible Loans upon Commercial Paper Rate Trigger. If the Commercial Paper Rate Trigger has occurred and the holder of the Purchase Option has not exercised its Purchase Option pursuant to Section 2.07(b) of this Appendix A, the Indenture Trustee (or its designated agent) shall offer for sale all of the Financed Eligible Loans held within the Trust Estate. Any such sale shall be consummated on or before the Trust Auction Date. The Indenture Trustee shall provide written notice to the Issuer of any such offer for sale at least three Business Days in advance of the Trust Auction Date. Any Nelnet Eligible Purchaser is permitted to bid at any such auction. If at least two independent bids are received, the Indenture Trustee (or its designated agent) shall solicit and resolicit new bids from all participating bidders until only one bid remains or the remaining bidders decline to resubmit bids. The Indenture Trustee shall accept the highest of such remaining bids if it is at least equal to the Commercial Paper Rate Minimum Purchase Amount (as defined below). In the event that only one or more Nelnet Eligible Purchasers bid at such auction and fewer than two independent bids are received, the Indenture Trustee shall accept the highest of such remaining bids if it is at least equal to the Commercial Paper Rate Minimum Purchase Amount and the fair market value of such Financed Eligible Loans as of the Quarterly Distribution Date immediately preceding the Trust Auction Date. The Indenture Trustee shall accept the highest of such remaining bids if it is, together with any amounts on deposit in the Funds established pursuant to the Indenture, equal to or in excess of the Commercial Paper Rate Minimum Purchase Amount. If the highest remaining bid is not equal to or in excess of the higher of the amounts described in the two preceding sentences, the Indenture Trustee shall not consummate such sale. The Indenture Trustee may consult, and, at the direction of the Issuer, shall consult, with a financial advisor, including an initial purchaser or remarketing agent of the Series 2004-1 Notes or the Administrator, to determine if the fair market value of the Financed Eligible Loans has been offered by any Nelnet Eligible Purchaser. The proceeds of any such sale, together with any amounts on deposit in the Funds established pursuant to the Indenture, will be applied to the redemption of all Notes Outstanding pursuant to the mandatory redemption provisions of Section 2.09(e)(i) and (f)(ii) of the Indenture, to pay any required Issuer Derivative Payment (including all applicable Termination Payments) and to pay the remaining Program Expenses through the final redemption date of the Series 2004-1 Notes. If the sale is not completed, the
A-26
Exhibit 4.11
Indenture Trustee shall solicit bids for the Financed Eligible Loans with respect to every other future Quarterly Distribution Date for which the holder of the Purchase Option described in Section 2.05(b) of this Appendix A has not delivered timely notice of its intention to exercise its Purchase Option or delivered an amount equal to the purchase price by the specified date upon terms similar to those described above.
Section 2.14. Execution of Documents. The Indenture Trustee is hereby authorized and directed to execute and deliver, not in its individual capacity, but solely as Indenture Trustee on behalf of the Issuer, the Remarketing Agreement, any Derivative Products, and all Remarketing Agency Agreements as the Administrator, in writing and from time to time, shall instruct the Indenture Trustee. The Indenture Trustee shall not be liable to any party, any third party or any Registered Owner for any such actions taken at the written instruction of the Administrator. Notwithstanding the foregoing, in the event that the Indenture Trustee declines or fails to execute or deliver any such document, instrument, certificate or agreement as instructed by the Administrator, the Administrator is hereby authorized, in its sole discretion, to execute and deliver, not in its individual capacity but solely as Administrator on behalf of the Issuer, all such required documents, instruments, certificates and agreements. The foregoing authorization shall represent a limited power of attorney granted by the Issuer to the Administrator to act on its behalf and the Administrator shall not be liable to any party, any third party or any Registered Owner for any such actions taken in good faith and in accordance with these Reset Rate Note Procedures.
A-27
Exhibit 4.11
APPENDIX B
CERTAIN TERMS AND PROVISIONS OF
THE AUCTION RATE NOTES
ARTICLE I
DEFINITIONS
Except as provided below in this Section, all terms which are defined in Article I of the Indenture shall have the same meanings, respectively, in this Appendix B as such terms are given in the Article I of the Indenture. In addition, the following terms shall have the following respective meanings:
"Accrual Period" shall mean, with respect to each Class of the Auction Rate Notes, the Initial Period and each period commencing on an Auction Rate Distribution Date for such Class of the Auction Rate Notes and ending on but shall exclude (a) the next succeeding Auction Rate Distribution Date for such Class of the Auction Rate Notes or (b) the Stated Maturity of such Class of the Auction Rate Notes, as applicable.
"All-Hold Rate" shall mean, on any date of determination, the interest rate per annum equal to 90% of the Applicable LIBOR Rate, rounded to the nearest one thousandth of one percent; provided that in no event shall the All-Hold Rate be more than the Interest Rate Limitation or less than zero.
"Applicable CP Spread," on any date of determination, shall mean the following percentages, based on the lowest rating assigned to the Auction Rate Notes:

                                  Credit Rating

                                                                    Applicable
      S&P                Moody's               Fitch                 CP Spread

    "AAA"                 "Aaa"                "AAA"                    0.75%
"AA-" to "AA+"        "Aa3" to Aa1"        "AA-" to AA+"                0.75
 "A-" to "A+"          "A3" to "A1"         "A-" to "A+"                0.75
"BBB-" to BBB+"      "Baa3" to "Baa1"     "BBB-" to "BBB+"              1.00
 Below "BBB-"          Below "Baa3"         Below "BBB-"                1.50	

"Applicable LIBOR Rate" shall mean, with respect to the Auction Rate Notes (a) for Auction Periods of 28 days or less, One-Month LIBOR; (b) for Auction Periods of more than 28 days but less than 91 days, Three-Month LIBOR;
(c) for Auction Periods of more than 90 days but less than 181 days, Six-Month LIBOR; and (d) for Auction Periods of more than 180 days, One-Year LIBOR. As used in this definition and otherwise herein, the terms "One-Month LIBOR," "Three-Month LIBOR," "Six-Month LIBOR" or "One-Year LIBOR" mean the rate of interest per annum equal to the rate per annum at which United States dollar deposits having a
Exhibit 4.11
maturity of one month, three months, six months or one year, respectively, are offered to prime banks in the London interbank market which appear on the Reuters Screen LIBOR Page as of approximately 11:00 a.m., London time, on the Interest Rate Determination Date. If at least two such quotations appear, One-Month LIBOR, Three-Month LIBOR, Six-Month LIBOR or One-Year LIBOR, respectively, will be the arithmetic mean (rounded upwards, if necessary, to the nearest one hundredth of one percent) of such offered rates. If fewer than two such quotes appear, One-Month LIBOR, Three-Month LIBOR, Six-Month LIBOR or One-Year LIBOR, respectively, with respect to such Auction Period will be determined at approximately 11:00 a.m., London time, on such Interest Rate Determination Date on the basis of the rate at which deposits in United States dollars having a maturity of one month, three months, six months or one year, respectively, are offered to prime banks in the London interbank market by four major banks in the London interbank market selected by the Auction Agent or the Indenture Trustee, as applicable, and in a principal amount of not less than U.S. $1,000,000 and that is representative for a single transaction in such market at such time. The Auction Agent or the Indenture Trustee, as applicable, will request the principal London office of each of such banks to provide a quotation of its rate. If at least two quotations are provided, One-Month LIBOR, Three-Month LIBOR, Six-Month LIBOR or One-Year LIBOR, respectively, will be the arithmetic mean (rounded upwards, if necessary, to the nearest one hundredth of one percent) of such offered rates. If fewer than two quotations are provided, One-Month LIBOR, Three-Month LIBOR, Six-Month LIBOR or One-Year LIBOR, respectively, with respect to such Auction Period will be the arithmetic mean (rounded upwards, if necessary, to the nearest one hundredth of one percent) of the rates quoted at approximately 11:00 a.m., New York City time on such Interest Rate Determination Date by three major banks in New York, New York selected by the Auction Agent or the Indenture Trustee, as applicable, for loans in United States dollars to leading European banks having a maturity of one month, three months, six months or one year, respectively, and in a principal amount equal to an amount of not less than U.S. $1,000,000 and that is representative for a single transaction in such market at such time; provided, however, that if the banks selected as aforesaid are not quoting as mentioned in this sentence, One-Month LIBOR, Three-Month LIBOR, Six-Month LIBOR or One-Year LIBOR, respectively, in effect for the applicable Auction Period will be One-Month LIBOR, Three-Month LIBOR, Six-Month LIBOR or One-Year LIBOR, respectively, in effect for the immediately preceding Auction Period.
"Applicable T-Bill Spread" shall mean, on any date of determination, the following percentages, based on the lowest rating assigned to the Auction Rate Notes as of such date:
Credit Rating

Standard & Poor's      Moody's Investors Service     Fitch, Inc.    Applicable T-Bill Spread

      "AAA"                      "Aaa"                  "AAA"                  1.25%
 "AA-" to "AA+"             "Aa3" to "Aa1"          "AA-" to "AA+"             1.25
  "A-" to "A+"               "A3" to "A1"            "A-" to "A+"              1.25
"BBB-" to "BBB+"           "Baa3" to "Baa1"        "BBB-" to "BBB+"            1.50
  Below "BBB-"               Below "Baa3"            Below "BBB-"              2.00	

"Auction" shall mean the implementation of the Auction Procedures on an Auction Date.
B-2
Exhibit 4.11
"Auction Agent" shall mean the Initial Auction Agent under the Initial Auction Agent Agreement unless and until a Substitute Auction Agent Agreement becomes effective, after which "Auction Agent" shall mean the Substitute Auction Agent.
"Auction Agent Agreement" shall mean the Initial Auction Agent Agreement unless and until a Substitute Auction Agent Agreement is entered into, after which "Auction Agent Agreement" shall mean such Substitute Auction Agent Agreement.
"Auction Agent Fee" has the meaning set forth in the Auction Agent Agreement.
"Auction Date" shall mean, initially, March 3, 2004 for the Class B-1 Notes and March 10, 2004 for the Class B-2 Notes; and thereafter, the Business Day immediately preceding the first day of each Auction Period for such Class, other than:
(a) each Auction Period commencing after the ownership of the applicable Auction Rate Notes is no longer maintained in Book-entry Form by the Securities Depository;
(b) each Auction Period commencing after and during the continuance of a Payment Default; or
(c) each Auction Period commencing less than two Business Days after the cure or waiver of a Payment Default.
Notwithstanding the foregoing, the Auction Date for one or more Auction Periods may be changed pursuant to Section 2.02(h) of this Appendix B.
"Auction Period" shall mean the period applicable to each Class of the Auction Rate Notes during which time the interest rate is determined pursuant to
Section 2.02(a) of this Appendix B, which Auction Period (after the Initial Period for such Class) initially shall consist generally of 28 days for each Class of the Auction Rate Notes, as the same may be adjusted pursuant to Sections 2.01 and 2.02(g) of this Appendix B.
"Auction Period Adjustment" shall mean an adjustment to the Auction Period as provided in Section 2.02(g) of this Appendix B.
"Auction Procedures" shall mean the procedures set forth in Section 2.02(a) of this Appendix B by which the Auction Rate is determined.
"Auction Rate" shall mean the rate of interest per annum that results from implementation of the Auction Procedures and is determined as described in
Section 2.02(a)(iii)(B) of this Appendix B.
"Auction Rate Notes" shall mean the Class B Notes.
"Auction Rate Notes Carry-over Amount" shall mean, (a) during the Net Loan Rate Period, the excess, if any, of (i) the amount of interest on an Auction Rate Note that would have accrued with respect to the related Accrual Period at the least of the applicable Auction Rate and
B-3
Exhibit 4.11
the components included in the Maximum Rate over (ii) the amount of interest on such Auction Rate Note actually accrued with respect to such Auction Rate Note with respect to such Accrual Period based on the Net Loan Rate, together with the unreduced portion of any such excess from prior Accrual Periods and (b) during any period during which the Subordinate Interest Trigger has occurred and is continuing, the interest which would have been paid on the Auction Rate Note with respect to the related Accrual Period, together with the unreduced portion of any such unpaid interest from prior Accrual Periods; provided that any reference to "principal" or "interest" in the Indenture and in this Appendix B and the Auction Rate Notes shall not include within the meanings of such words any Auction Rate Notes Carry-over Amount or any interest accrued on any Auction Rate Notes Carry-over Amount. Auction Rate Notes Carry-over Amount shall apply only during the Net Loan Rate Period or during a period during which the Subordinate Interest Trigger has occurred and is continuing.
"Auction Rate Notes Interest Rate" shall mean each variable rate of interest per annum borne by a Class of the Auction Rate Notes for each respective Auction Period and determined in accordance with the provisions of Sections 2.01 and 2.02 of this Appendix B.
"Available Auction Rate Notes" has the meaning set forth in Section 2.02(a)(iii)(A)(1) of this Appendix B.
"Bid" has the meaning set forth in Section 2.02(a)(i)(A) of this Appendix B.
"Bid Auction Rate" has the meaning set forth in Section 2.02(a)(iii)(A)(3) of this Appendix B.
"Bidder" has the meaning set forth in Section 2.02(a)(i)(A) of this Appendix B.
"Bond Equivalent Yield" shall mean with respect to any security with a maturity of six months or less the rate for which is quoted in The Wall Street Journal on a bank discount basis, a yield (expressed as a percentage) calculated in accordance with the following formula and rounded up to the nearest one-hundredth of one percent:
Bond Equivalent Yield = Q x N x 100

360 - (T x Q)
where "Q" refers to the per annum interest rate for the security quoted on a bank discount basis and expressed as a decimal, "N" refers to 365 or 366 (days), as the case may be, and "T" refers to the number of days to maturity.
"Book-entry Form" or "Book-entry System" shall mean a form or system under which (a) the beneficial right to principal and interest may be transferred only through a book entry, (b) physical securities in registered form are issued only to a Securities Depository or its nominee as registered owner, with the securities "immobilized" to the custody of the Securities Depository, and (c) the book entry is the record that identifies the owners of beneficial interests in that principal and interest.
"Broker-Dealer" shall mean Deutsche Bank Securities Inc. with respect to the Class B-1 Notes and Credit Suisse First Boston LLC with respect to the Class B-2 Notes, or any other
B-4
Exhibit 4.11
broker or dealer (each as defined in the Securities Exchange Act of 1934, as amended), commercial bank or other entity permitted by law to perform the functions required of a Broker-Dealer set forth in the Auction Procedures that
(a) is a Participant (or an affiliate of a Participant), (b) has been appointed as such by the Issuer pursuant to Section 2.02(f) of this Appendix B, and (c) has entered into a Broker-Dealer Agreement that is in effect on the date of reference.
"Broker-Dealer Agreement" shall mean each agreement between the Auction Agent and a Broker-Dealer, pursuant to which the Broker-Dealer agrees to participate in Auctions as set forth in the Auction Procedures, as from time to time amended or supplemented. Each Broker-Dealer Agreement shall be in substantially the form of the Broker-Dealer Agreements, each dated as of January 1, 2004, among the Issuer, Deutsche Bank Trust Company Americas, as Auction Agent, and the Broker-Dealers.
"Broker-Dealer Fee" has the meaning set forth in the Auction Agent Agreement.
"Broker-Dealer Fee Rate" has the meaning set forth in the Auction Agent Agreement.
"Business Day" shall mean any day other than a Saturday, Sunday, holiday or other day on which the New York Stock Exchange or banks located in New York, New York, or in the city in which the principal office of the Indenture Trustee or the Auction Agent is located, are authorized or permitted by law or executive order to close; provided that with respect to Auction Dates such term shall exclude April 14 and 15 and December 30 and 31 and such other dates as may be agreed to in writing by the Auction Agent, the Broker-Dealers and the Issuer.
"Class B-1 Notes Interest Rate" shall mean the Auction Rate Notes Interest Rate on the Class B-1 Notes.
"Class B-2 Notes Interest Rate" shall mean the Auction Rate Notes Interest Rate on the Class B-2 Notes.
"CP Cap" shall mean, for any Auction Date, the rate (for the then current Auction) at which the Quarterly Average Auction Rate equals the Quarterly Average CP Rate plus the Applicable CP Spread, such rate to be determined by the formula:
N x (C + S) - R,
Where N is the number of Auction Dates which precede the current Auction Date by 91 days or less, including the current Auction Date; C is the Quarterly Average CP Rate; S is the Applicable CP Spread; and, R is the sum of the Auction Rates for Auction Dates preceding the current Auction Date by 91 days or less, excluding the current Auction.
"Eligible Auction Rate Notes Carry-over Make-Up Amount" shall mean, (a) with respect to each Accrual Period relating to a Class of the Auction Rate Notes as to which, as of the first day of such Accrual Period, there is any unpaid Auction Rate Notes Carry-over Amount due to the occurrence of a Net Loan Rate Period, an amount equal to the lesser of (i) interest computed on the principal balance of such Class of the Auction Rate Notes in respect to such Accrual Period at a per annum rate equal to the excess, if any, of the Net Loan Rate over the Auction
B-5
Exhibit 4.11
Rate and (ii) the aggregate Auction Rate Notes Carry-over Amount remaining unpaid as of the first day of such Accrual Period together with interest accrued and unpaid thereon through the end of such Accrual Period and (b) with respect to with respect to each Accrual Period relating to a Class of the Auction Rate Notes as to which, as of the first day of such Accrual Period, there is any unpaid Auction Rate Notes Carry-over Amount due to the occurrence and continuation of the Subordinate Interest Trigger and the Subordinate Interest Trigger is no longer continuing, an amount equal to such unpaid Auction Rate Notes Carry-over Amount.
"Existing Owner" shall mean (a) with respect to and for the purpose of dealing with the Auction Agent in connection with an Auction, a Person who is a Broker-Dealer listed in the Existing Owner Registry at the close of business on the Business Day immediately preceding the Auction Date for such Auction and (b) with respect to and for the purpose of dealing with the Broker-Dealer in connection with an Auction, a Person who is a beneficial owner of Auction Rate Notes.
"Existing Owner Registry" shall mean the registry of Persons who are owners of the Auction Rate Notes, maintained by the Auction Agent as provided in the Auction Agent Agreement.
"Hold Order" has the meaning set forth in Section 2.02(a)(i)(A) of this Appendix B.
"Initial Auction Agent" shall mean Deutsche Bank Trust Company Americas, a New York banking corporation, its successors and assigns.
"Initial Auction Agent Agreement" shall mean, collectively, the Auction Agent Agreement dated as of January 1, 2004, by and among the Issuer, the Indenture Trustee and the Initial Auction Agent, including any amendment thereof or supplement thereto.
"Initial Period" shall mean, as to each Class of the Auction Rate Notes, the period commencing on the Closing Date and continuing through the day immediately preceding the Initial Rate Adjustment Date for the Auction Rate Notes.
"Initial Rate" shall mean 1.17% per annum for the Class B-1 Notes and 1.17% per annum for the Class B-2 Notes.
"Initial Rate Adjustment Date" shall mean March 4, 2004 for the Class B-2 Notes and March 11, 2004 for the Class B-2 Notes.
"Interest Rate Adjustment Date" shall mean (a) with respect to the Class B-1 Notes, the date on which an Class B-1 Notes Interest Rate is effective, and shall mean, with respect to the Class B-1 Notes, the date of commencement of each Auction Period for the Class B-1 Notes and (b) with respect to the Class B-2 Notes, the date on which an Class B-1 Notes Interest Rate is effective, and shall mean, with respect to the Class B-2 Notes, the date of commencement of each Auction Period for the Class B-2 Notes.
"Interest Rate Determination Date" shall mean, with respect to each Class of
B-6
Exhibit 4.11
the Auction Rate Notes, the Auction Date for such Class, or if no Auction Date is applicable to such Class of the Auction Rate Notes, the Business Day immediately preceding the date of commencement of an Auction Period for such Class.
"Interest Rate Limitation" shall mean, on any date of determination, the lesser of (a) the highest rate the Issuer may legally pay from time to time or (b) 17%.
"Maximum Rate" on any date of determination shall mean the least of:
(a) the Applicable LIBOR Rate plus 1.00%;
(b) the Interest Rate Limitation;
(c) for Auctions after the initial Auction Date, the T-Bill Cap;
(d) for Auctions after the initial Auction Date, the CP Cap; and
(e) during the Net Loan Rate Period, the Net Loan Rate.
"90-Day Financial Commercial Paper Rate" shall mean the 90-Day AA Financial Commercial Paper rate posted on the Federal Reserve Release entitled "Commercial Paper Rates and Outstandings," which rate may be available on the Internet at www.federalreserve.gov/releases/cp.
"Net Loan Rate" shall mean, with respect to any Accrual Period applicable to the Class of the Auction Rate Notes, the weighted average return on the Financed Eligible Loans, including all Revenues derived from such Financed Eligible Loans, less all Program Expenses expressed as a percentage of the average outstanding principal balance of such Financed Eligible Loans, which percentage shall be calculated by the Issuer on a quarterly basis, in arrears and provided to the Indenture Trustee and the Auction Agent. In making the determination of the Net Loan Rate, the Issuer shall take into account any Counterparty Payments received and/or any Issuer Derivative Payments made.
"Net Loan Rate Period" shall mean, with respect to a Class of the Auction Rate Notes, the period commencing on the Net Loan Rate Trigger Date for such Class of the Auction Rate Notes and continuing until all of such Class of the Auction Rate Notes have been paid in full; provided that such Net Loan Rate Period may be suspended with a Rating Confirmation.
"Net Loan Rate Trigger Date" shall mean, with respect to a Class of the Auction Rate Notes, the first day of an Auction Period for such Class which immediately follows six consecutive Auction Dates for such Class of the Auction Rate Notes where the Auction Rate established on each such Auction Date for such Class exceeded the Net Loan Rate.
"Non-Payment Rate" shall mean One-Month LIBOR plus 1.50%.
"One-Month LIBOR," "Three-Month LIBOR," "Six-Month LIBOR" or "One-Year LIBOR," shall mean the offered rate, as determined by the Auction Agent or Indenture Trustee, as applicable, of the Applicable LIBOR Rate for United States dollar deposits which appears on Telerate Page 3750, as reported by Bloomberg Financial Markets Commodities News (or such
B-7
Exhibit 4.11
other page as may replace Telerate Page 3750 for the purpose of displaying comparable rates) as of approximately 11:00 a.m., London time, on the LIBOR Determination Date; provided, that if on any calculation date, no rate appears on Telerate Page 3750 as specified above, the Auction Agent or the Indenture Trustee, as applicable, shall determine the arithmetic mean of the offered quotations of four major banks in the London interbank market, for deposits in United States dollars for the respective periods specified above to the banks in the London interbank market as of approximately 11:00 a.m., London time, on such calculation date and in a principal amount of not less than $1,000,000 that is representative of a single transaction in such market and at such time, unless fewer than two such quotations are provided, in which case, the Applicable LIBOR Rate shall be the arithmetic mean of the offered quotations that leading banks in New York City selected by the Auction Agent or the Indenture Trustee, as applicable, are quoting on the relevant LIBOR Determination Date for loans in United States dollars to leading European banks in a principal amount of not less than $1,000,000 that is representative of a single transaction in such market at such time. All percentages resulting from such calculations shall be rounded upwards, if necessary, to the nearest one-hundredth of one percent.
"Order" has the meaning set forth in Section 2.02(a)(i)(A) of this Appendix B.
"Payment Default" shall mean, with respect to the Auction Rate Notes,
(a) a default in the due and punctual payment of any installment of interest on such Auction Rate Notes, other than as a result of the occurrence or continuation of the Subordinate Interest Trigger, or (b) a default in the due and punctual payment of any interest on and principal of such Auction Rate Notes at their maturity.
"Potential Owner" shall mean any Person (including an Existing Owner that is (a) a Broker-Dealer when dealing with the Auction Agent and (b) a potential beneficial owner when dealing with a Broker-Dealer) who may be interested in acquiring Auction Rate Notes (or, in the case of an Existing Owner thereof, an additional principal amount of Auction Rate Notes).
"PSA" shall mean the Public Securities Association, its successors and assigns.
"Quarterly Average Auction Rate" shall mean the simple average of the Auction Rates for Auction Dates preceding the current Auction Date by 91 days or less, including the current Auction Date.
"Quarterly Average CP Rate" shall mean the simple average of the Bond Equivalent Yield of 90-Day Financial Commercial Paper Rates for the 91 days preceding (but not including) the current Auction Date.
"Quarterly Average T-Bill Rate" shall mean the simple average of the Bond Equivalent Yield of 91-day Treasury bills auctioned in the 91 days preceding (but not including) the current Auction Date.
"Record Date" shall mean, with respect to the Auction Rate Notes, the Business Day next preceding the applicable Auction Rate Distribution Date.
"S&P" shall mean Standard & Poor's Ratings Services, a Division of The McGraw-Hill Companies, Inc., its successors and assigns.
B-8
Exhibit 4.11
"Sell Order" has the meaning set forth in Section 2.02(a)(i)(A) of this Appendix B.
"Submission Deadline" shall mean 1:00 p.m., eastern time, on any Auction Date or such other time on any Auction Date by which Broker-Dealers are required to submit Orders to the Auction Agent as specified by the Auction Agent from time to time.
"Submitted Bid" has the meaning set forth in Section 2.02(a)(iii)(A) of this Appendix B.
"Submitted Hold Order" has the meaning set forth in Section 2.02(a)(iii)(A) of this Appendix B.

         "Submitted Order" has the meaning set forth in Section  2.02(a)(iii)(A)
of this Appendix B.

         "Submitted   Sell   Order"  has  the   meaning  set  forth  in  Section
2.02(a)(iii)(A) of this Appendix B.	

"Substitute Auction Agent" shall mean the Person with whom the Issuer and the Indenture Trustee enter into a Substitute Auction Agent Agreement.
"Substitute Auction Agent Agreement" shall mean an auction agent agreement containing terms substantially similar to the terms of the Initial Auction Agent Agreement, whereby a Person having the qualifications required by
Section 2.02(e) of this Appendix B agrees with the Indenture Trustee and the Issuer to perform the duties of the Auction Agent under this Appendix B.
"Sufficient Bids" has the meaning set forth in Section 2.02(a)(iii)(A) of this Appendix B.
"T-Bill Cap" shall mean, for any Auction Date, the rate (for the then current auction) at which the Quarterly Average Auction Rate equals the Quarterly Average T-Bill Rate plus the Applicable T-Bill Spread, such rate to be determined by the formula:
N x (T+S) - R,
where N is the number of Auction Dates which precede the current Auction Date by 91 days or less, including the current Auction Date; T is the Quarterly Average T-Bill Rate; S is the Applicable T-Bill Spread; and R is the sum of the Auction Rates for Auction Dates preceding the current Auction Date by 91 days or less, excluding the current Auction.
ARTICLE II
TERMS AND ISSUANCE
Section 2.01. Auction Rate Notes Interest Rate and Auction Rate Notes Carry-over Amounts. During the Initial Period, the Auction Rate Notes shall bear interest at the Initial Rate for such Class. Thereafter, and except with respect to an Auction Period Adjustment, the Auction Rate Notes shall bear interest at an Auction Rate Notes Interest Rate based on a 28-day
B-9
Exhibit 4.11
Auction Period for the Auction Rate Notes, as determined pursuant to this
Section and Section 2.02 of this Appendix B.
For the Auction Rate Notes during the Initial Period and each Auction Period thereafter, interest at the applicable Auction Rate Notes Interest Rate shall accrue daily and shall be computed for the actual number of days elapsed on the basis of a year consisting of 360 days.
The Auction Rate Notes Interest Rate to be borne by the Auction Rate Notes after such Initial Period for each Auction Period until an Auction Period Adjustment, if any, shall be determined as described below. Unless otherwise specified in an Issuer Order, each such Auction Period after the Initial Period shall commence on and include the day following the expiration of the immediately preceding Auction Period and terminate on and include the Wednesday (unless such day is not followed by a Business Day, in which case on the next succeeding day that is followed by a Business Day) of the following fourth week; provided, however, that in the case of the Auction Period that immediately follows the Initial Period for the Auction Rate Notes, such Auction Period shall commence on the Initial Rate Adjustment Date. The Auction Rate Notes Interest Rate on the Auction Rate Notes for each Auction Period shall be the Auction Rate in effect for such Auction Period as determined in accordance with Section 2.02(a) of this Appendix B. By way of example, if an Auction Period ordinarily would end on a Wednesday, but the following Thursday is not a Business Day, the Auction Period will end on that Thursday and the new Auction Period will begin on Friday.
Notwithstanding the foregoing, unless otherwise specified in an Issuer Order, if an Auction is scheduled to occur for the next Auction Period on a date that was reasonably expected to be a Business Day, but such Auction does not occur because such date is later not considered to be a Business Day, the Auction shall nevertheless be deemed to have occurred, and the applicable Auction Rate Notes Interest Rate in effect for the next Auction Period will be the Auction Rate Notes Interest Rate in effect for the preceding Auction Period and such Auction Period will generally be 28 days in duration, beginning on the calendar day following the date of the deemed Auction and ending on (and including) the applicable Wednesday (unless such day is not followed by a Business Day, in which case on the next succeeding day that is followed by a Business Day) of the following fourth week. If the preceding Auction Period was other than generally 28 days in duration, the Auction Rate Notes Interest Rate for the deemed Auction will instead be the rate of interest determined by the applicable Broker-Dealer on equivalently rated auction securities with a comparable length of auction period.
Notwithstanding the foregoing:
(a) if the ownership of an Auction Rate Note is no longer maintained in Book-entry Form, the Auction Rate Notes Interest Rate on the Auction Rate Notes for any Accrual Period commencing after the delivery of certificates representing Auction Rate Notes pursuant to the Indenture shall equal the Maximum Rate on the Business Day immediately preceding the first day of such subsequent Accrual Period; or
(b) if a Payment Default shall have occurred, the Auction Rate Notes Interest Rate on the Auction Rate Notes for the Accrual Period commencing on or immediately after such Payment Default, and for each Accrual Period thereafter, to and including the
B-10
Exhibit 4.11
Accrual Period, if any, during which, or commencing less than two Business Days after, such Payment Default is cured, shall equal the applicable Non-Payment Rate on the first day of each such Accrual Period.
In accordance with Section 2.02(a)(iii)(B) and (C) of this Appendix B, the Auction Agent shall promptly give written notice to the Indenture Trustee and the Issuer of each Auction Rate Notes Interest Rate (unless the Auction Rate Notes Interest Rate is the applicable Non-Payment Rate) and the Maximum Rate when such rate is not the Auction Rate Notes Interest Rate, applicable to the Class of the Auction Rate Notes. The Indenture Trustee shall notify the Registered Owners and the Issuer of Auction Rate Notes of the applicable Auction Rate Notes Interest Rate applicable to such Auction Rate Notes for each Auction Period not later than the third Business Day of such Auction Period. Notwithstanding any other provision of the Auction Rate Notes or the Indenture and except for the occurrence of a Payment Default, interest payable on the Auction Rate Notes for an Auction Period shall never exceed for such Auction Period the amount of interest payable at the applicable Maximum Rate in effect for such Auction Period.
If the Auction Rate for a Class of the Auction Rate Notes is greater than the Maximum Rate, then the Auction Rate Notes Interest Rate for such Class for that Accrual Period will be the Maximum Rate. If the Auction Rate Notes Interest Rate applicable to such Class of the Auction Rate Notes for any Accrual Period is the Net Loan Rate, the Indenture Trustee shall determine the Auction Rate Notes Carry-over Amount, if any, with respect to such Class of the Auction Rate Notes for such Accrual Period. If interest on a Class of the Auction Rate Notes for any Accrual Period is not paid due to the occurrence and continuation of the Subordinate Interest Trigger, the Indenture Trustee shall determine the Auction Rate Notes Carry-over Amount, if any, with respect to such Class of the Auction Rate Notes for such Accrual Period. Such Auction Rate Notes Carry-over Amount shall bear interest calculated at a rate equal to One-Month LIBOR (as determined by the Auction Agent, provided the Indenture Trustee has received notice of One-Month LIBOR from the Auction Agent, and if the Indenture Trustee shall not have received such notice from the Auction Agent, then as determined by the Indenture Trustee) from the Auction Rate Distribution Date for the Accrual Period with respect to which such Auction Rate Notes Carry-over Amount was calculated, until paid. Any payment in respect of Auction Rate Notes Carry-over Amount shall be applied, first, to any accrued interest payable thereon and, second, in reduction of such Auction Rate Notes Carry-over Amount. For purposes of the Indenture and this Appendix B, any reference to "principal" or "interest" herein shall not include within the meaning of such words Auction Rate Notes Carry-over Amount or any interest accrued on any such Auction Rate Notes Carry-over Amount. Such Auction Rate Notes Carry-over Amount shall be separately calculated for each Auction Rate Note by the Indenture Trustee during such Accrual Period in sufficient time for the Indenture Trustee to give notice to each Registered Owner of such Auction Rate Notes Carry-over Amount as required in the next succeeding sentence. Not less than four days before the Auction Rate Distribution Date for such Class of the Auction Rate Notes for an Accrual Period with respect to which such Auction Rate Notes Carry-over Amount has been calculated by the Indenture Trustee, the Indenture Trustee shall give written notice to each Registered Owner, the Auction Agent and the Issuer of the Auction Rate Notes Carry-over Amount applicable to each Registered Owner's Auction Rate Note, which written notice may accompany the payment of interest made to each such Registered Owner on such Auction Rate Distribution Date or otherwise shall be mailed on such Auction Rate Distribution Date by first-class mail, postage prepaid, to each such Registered
B-11
Exhibit 4.11
Owner at such Registered Owner's address as it appears on the registration records maintained by the Indenture Trustee. In addition to such Auction Rate Notes Carry-over Amount, such notice shall state, that, unless and until an Auction Rate Note has been redeemed (other than by optional redemption), after which redemption all accrued Auction Rate Notes Carry-over Amounts (and all accrued interest thereon) that remain unpaid shall be canceled and no Auction Rate Notes Carry-over Amount (or interest accrued thereon) shall be paid with respect to any redeemed Auction Rate Note, (a) the Auction Rate Notes Carry-over Amount (and interest accrued thereon calculated at a rate equal to One-Month LIBOR) shall be paid or, in case of a defeasance, provided for by the Indenture Trustee on an Auction Rate Note on the earliest of (i) the date of defeasance or optional redemption of the Auction Rate Notes, or (ii) the first occurring Auction Rate Distribution Date for such Class of the Auction Rate Notes if and to the extent that (x) the Eligible Auction Rate Notes Carry-over Make-Up Amount with respect to such subsequent Accrual Period is greater than zero, and (y) moneys are available pursuant to the terms of the Indenture in an amount sufficient to pay all or a portion of such Auction Rate Notes Carry-over Amount (and interest accrued thereon); and (b) interest shall accrue on the Auction Rate Notes Carry-over Amount at a rate equal to One-Month LIBOR until such Auction Rate Notes Carry-over Amount is paid in full or is cancelled.
The Auction Rate Notes Carry-over Amount (and interest accrued thereon) for Auction Rate Notes shall be paid or, in case of a defeasance, provided for by the Indenture Trustee on Outstanding Auction Rate Notes on the earliest of
(a) the date of defeasance or optional redemption of any of the Auction Rate Notes or (b) the first occurring Auction Rate Distribution Date for such Class of the Auction Rate Notes if and to the extent that (i) the Eligible Auction Rate Notes Carry-over Make-Up Amount with respect to such Accrual Period is greater than zero, and (ii) on such Auction Rate Distribution Date there are sufficient moneys in the Collection Fund to pay all interest due on the Auction Rate Notes on such Auction Rate Distribution Date. Any Auction Rate Notes Carry-over Amount (and any interest accrued thereon) on any Auction Rate Note which is due and payable on an Auction Rate Distribution Date, which Auction Rate Note is to be redeemed (other than by optional redemption) on said Auction Rate Distribution Date, shall be paid to the Registered Owner thereof on said Auction Rate Distribution Date to the extent that moneys are available therefor in accordance with the provisions of this Appendix B; provided, however, that any Auction Rate Notes Carry-over Amount (and any interest accrued thereon) which is not yet due and payable on said Auction Rate Distribution Date shall be cancelled with respect to said Auction Rate Note that is to be redeemed (other than by optional redemption) on said Auction Rate Distribution Date and shall not be paid on any succeeding Auction Rate Distribution Date. To the extent that any portion of the Auction Rate Notes Carry-over Amount (and any interest accrued thereon) remains unpaid after payment of a portion thereof, such unpaid portion shall be paid in whole or in part as required hereunder until fully paid or, in case of a defeasance, provided for by the Indenture Trustee on the earliest of (a) the date of defeasance or optional redemption of any of the Auction Rate Notes or (b) the next occurring Auction Rate Distribution Date or Dates, as necessary, if and to the extent that the conditions in the second preceding sentence are satisfied. On any Auction Rate Distribution Date on which the Indenture Trustee pays only a portion of the Auction Rate Notes Carry-over Amount (and any interest accrued thereon) on Auction Rate Notes, the Indenture Trustee shall give written notice in the manner set forth in the immediately preceding paragraph to the Registered Owner of such Auction Rate Note receiving such partial
B-12
Exhibit 4.11
payment of the Auction Rate Notes Carry-over Amount remaining unpaid on such Auction Rate Note.
The Auction Rate Distribution Date for a Class of the Auction Rate Notes or other date on which such Auction Rate Notes Carry-over Amount (or any interest accrued thereon) for Auction Rate Notes shall be paid shall be determined by the Indenture Trustee in accordance with the provisions of the immediately preceding paragraph, and the Indenture Trustee shall make payment of the Auction Rate Notes Carry-over Amount (and any interest accrued thereon) in the same manner as, and from the same Account from which, it pays interest on the Auction Rate Notes on an Auction Rate Distribution Date for the appropriate Class of the Auction Rate Notes. Any payment of Auction Rate Notes Carry-over Amounts (and interest accrued thereon) shall reduce the amount of Eligible Auction Rate Notes Carry-over Make-Up Amount.
In the event that the Auction Agent no longer determines, or fails to determine, when required, the Auction Rate Notes Interest Rate with respect to Auction Rate Notes, or, if for any reason such manner of determination shall be held to be invalid or unenforceable, the Auction Rate Notes Interest Rate for the next succeeding Accrual Period, which Accrual Period shall be an Auction Period, for Auction Rate Notes shall be the Maximum Rate as determined by the Auction Agent for such next succeeding Auction Period, and if the Auction Agent shall fail or refuse to determine the Maximum Rate, the Maximum Rate shall be determined by the securities dealer appointed by the Issuer capable of making such a determination in accordance with the provisions of this Appendix B and written notice of such determination shall be given by such securities dealer to the Indenture Trustee.
Section 2.02. Auction Rate.
(a) Determining the Auction Rate. By purchasing Auction Rate Notes, whether in an Auction or otherwise, each purchaser of the Auction Rate Notes, or its Broker-Dealer, must agree and shall be deemed by such purchase to have agreed (x) to participate in Auctions on the terms described herein, (y) to have its beneficial ownership of the Auction Rate Notes maintained at all times in Book-entry Form for the account of its Participant, which in turn will maintain records of such beneficial ownership and (z) to authorize such Participant to disclose to the Auction Agent such information with respect to such beneficial ownership as the Auction Agent may request.
So long as the ownership of Auction Rate Notes is maintained in Book-entry Form by the Securities Depository, an Existing Owner may sell, transfer or otherwise dispose of Auction Rate Notes only pursuant to a Bid or Sell Order placed in an Auction or otherwise sell, transfer or dispose of Auction Rate Notes through a Broker-Dealer, provided that, in the case of all transfers other than pursuant to Auctions, such Existing Owner, its Broker-Dealer or its Participant advises the Auction Agent of such transfer. Auctions shall be conducted on each Auction Date, if there is an Auction Agent on such Auction Date, in the following manner (the Auction Rate Notes Interest Rates shall be determined separately for each Class of the Auction Rate Notes):
B-13
Exhibit 4.11
(i) (A) Prior to the Submission Deadline on each Auction Date;
(1) each Existing Owner of Auction Rate Notes may submit to a Broker-Dealer by telephone or otherwise any information as to:
a. the principal amount of Outstanding Auction Rate Notes, if any, owned by such Existing Owner which such Existing Owner desires to continue to own without regard to the Auction Rate Notes Interest Rate for the next succeeding Auction Period;
b. the principal amount of Outstanding Auction Rate Notes, if any, which such Existing Owner offers to sell if the Auction Rate Notes Interest Rate for the next succeeding Auction Period shall be less than the rate per annum specified by such Existing Owner; and/or
c. the principal amount of Outstanding Auction Rate Notes, if any, owned by such Existing Owner which such Existing Owner offers to sell without regard to the Auction Rate Notes Interest Rate for the next succeeding Auction Period;
and
(2) one or more Broker-Dealers may contact Potential Owners to determine the principal amount of Auction Rate Notes which each Potential Owner offers to purchase, if the Auction Rate Notes Interest Rate for the next succeeding Auction Period shall not be less than the rate per annum specified by such Potential Owner.
The statement of an Existing Owner or a Potential Owner referred to in (1) or (2) of this paragraph (A) is herein referred to as an "Order," and each Existing Owner and each Potential Owner placing an Order is herein referred to as a "Bidder"; an Order described in clause (1)a is herein referred to as a "Hold Order"; an Order described in clauses
(1)b and (2) is herein referred to as a "Bid"; and an Order described in clause (1)c is herein referred to as a "Sell Order."
(B) (1) Subject to the provisions of Section 2.02(a)(ii) of this Appendix B, a Bid by an Existing Owner shall constitute an irrevocable offer to sell:
a. the principal amount of Outstanding Auction Rate Notes specified in such Bid if the Auction Rate Notes
B-14
Exhibit 4.11
Interest Rate determined as
provided in this Section 2.02(a)
shall be less than the rate
specified therein; or
b. such principal amount, or a lesser principal amount of Outstanding Auction Rate Notes to be determined as set forth in
Section 2.02(a)(iv)(A)(4) of this Appendix B, if the Auction Rate Notes Interest Rate determined as provided in this Section 2.02(a) shall be equal to the rate specified therein; or
c. such principal amount, or a lesser principal amount of Outstanding Auction Rate Notes to be determined as set forth in
Section 2.02(a)(iv)(B)(3) of this Appendix B, if the rate specified therein shall be higher than the applicable Maximum Rate and Sufficient Bids have not been made.
(2) Subject to the provisions of
Section 2.02(a)(ii) of this Appendix B, a Sell Order by an Existing Owner shall constitute an irrevocable offer to sell:
a. the principal amount of Outstanding Auction Rate Notes specified in such Sell Order; or
b. such principal amount, or a lesser principal amount of Outstanding Auction Rate Notes set forth in Section 2.02(a)(iv)(B)(3) of this Appendix B, if Sufficient Bids have not been made.
(3) Subject to the provisions of
Section 2.02(a)(ii) of this Appendix B, a Bid by a Potential Owner shall constitute an irrevocable offer to purchase:
a. the principal amount of Outstanding Auction Rate Notes specified in such Bid if the Auction Rate Notes Interest Rate determined as provided in this
Section 2.02(a) shall be higher than the rate specified in such Bid; or
b. such principal amount, or a lesser principal amount of Outstanding Auction Rate Notes set forth in Section 2.02(a)(iv)(A)(5) of this Appendix B, if the Auction Rate Notes Interest Rate determined as provided in this Section 2.02(a) shall be equal to the rate specified in such Bid.
(ii) (A) Each Broker-Dealer shall submit in writing to the Auction Agent prior to the Submission Deadline on each Auction Date all Orders
B-15
Exhibit 4.11
obtained by such Broker-Dealer and shall specify with
respect to each such Order:
(1) the name of the Bidder placing such Order;
(2) the aggregate principal amount of Auction Rate Notes that are the subject of such Order;
(3) to the extent that such Bidder is an Existing Owner:
a. the principal amount of Auction Rate Notes, if any, subject to any Hold Order placed by such Existing Owner;
b. the principal amount of Auction Rate Notes, if any, subject to any Bid placed by such Existing Owner and the rate specified in such Bid; and
c. the principal amount of Auction Rate Notes, if any, subject to any Sell Order placed by such Existing Owner;
and
(4) to the extent such Bidder is a Potential Owner, the rate specified in such Potential Owner's Bid.
(B) If any rate specified in any Bid contains more than three figures to the right of the decimal point, the Auction Agent shall round such rate up to the next higher one thousandth of 1%.
(C) If an Order or Orders covering all Outstanding Auction Rate Notes owned by an Existing Owner is not submitted to the Auction Agent prior to the Submission Deadline, the Auction Agent shall deem a Hold Order to have been submitted on behalf of such Existing Owner covering the principal amount of Outstanding Auction Rate Notes owned by such Existing Owner and not subject to an Order submitted to the Auction Agent.
(D) None of the Issuer, the Indenture Trustee or the Auction Agent shall be responsible for any failure of a Broker-Dealer to submit an Order to the Auction Agent on behalf of any Existing Owner or Potential Owner.
(E) If any Existing Owner submits through a Broker-Dealer to the Auction Agent one or more Orders covering in the aggregate more than the principal amount of Outstanding Auction Rate Notes owned by
B-16
Exhibit 4.11
such Existing Owner, such Orders shall be considered valid as follows and in the following order of priority:
(1) All Hold Orders shall be considered valid, but only up to the aggregate principal amount of Outstanding Auction Rate Notes owned by such Existing Owner, and if the aggregate principal amount of Auction Rate Notes subject to such Hold Orders exceeds the aggregate principal amount of Auction Rate Notes owned by such Existing Owner, the aggregate principal amount of Auction Rate Notes subject to each such Hold Order shall be reduced pro rata so that the aggregate principal amount of Auction Rate Notes subject to such Hold Order equals the aggregate principal amount of Outstanding Auction Rate Notes owned by such Existing Owner.
(2) a. Any Bid shall be considered valid up to an amount equal to the excess of the principal amount of Outstanding Auction Rate Notes owned by such Existing Owner over the aggregate principal amount of Auction Rate Notes subject to any Hold Order referred to in clause (A) of this paragraph (v);
b. subject to subclause
(1) of this clause (B), if more than one Bid with the same rate is submitted on behalf of such Existing Owner and the aggregate principal amount of Outstanding Auction Rate Notes subject to such Bids is greater than such excess, such Bids shall be considered valid up to an amount equal to such excess;
c. subject to subclauses
(1) and (2) of this clause (B), if more than one Bid with different rates are submitted on behalf of such Existing Owner, such Bids shall be considered valid first in the ascending order of their respective rates until the highest rate is reached at which such excess exists and then at such rate up to the amount of such excess; and
d. in any such event, the amount of Outstanding Auction Rate Notes, if any, subject to Bids not valid under this clause (B) shall be treated as the subject of a Bid by a Potential Owner at the rate therein specified; and
(3) All Sell Orders shall be considered valid up to an amount equal to the excess of the principal amount of Outstanding Auction Rate Notes owned by such Existing Owner over the aggregate principal amount of Auction Rate Notes subject to Hold
B-17
Exhibit 4.11
Orders referred to in clause (1) of this
paragraph (v) and valid Bids referred to in
clause (2) of this paragraph (E).
(F) If more than one Bid for Auction Rate Notes is submitted on behalf of any Potential Owner, each Bid submitted shall be a separate Bid with the rate and principal amount therein specified.
(G) An Existing Owner that offers to purchase additional Auction Rate Notes is, for purposes of such offer, treated as a Potential Owner.
(H) Any Bid or Sell Order submitted by an Existing Owner covering an aggregate principal amount of Auction Rate Notes not equal to an Authorized Denomination shall be rejected and shall be deemed a Hold Order. Any Bid submitted by a Potential Owner covering an aggregate principal amount of Auction Rate Notes not equal to an Authorized Denomination shall be rejected.
(I) Any Bid specifying a rate higher than the applicable Maximum Rate will (1) be treated as a Sell Order if submitted by an Existing Owner and (2) not be accepted if submitted by a Potential Owner.
(J) Any Order submitted in an Auction by a Broker-Dealer to the Auction Agent prior to the Submission Deadline on any Auction Date shall be irrevocable.
(iii) (A) Not earlier than the Submission Deadline on each Auction Date, the Auction Agent shall assemble all valid Orders submitted or deemed submitted to it by the Broker-Dealers (each such Order as submitted or deemed submitted by a Broker-Dealer being herein referred to individually as a "Submitted Hold Order," a "Submitted Bid" or a "Submitted Sell Order," as the case may be, or as a "Submitted Order," and collectively as "Submitted Hold Orders," "Submitted Bids" or "Submitted Sell Orders," as the case may be, or as "Submitted Orders") and shall determine:
(1) the excess of the total principal amount of Outstanding Auction Rate Notes over the sum of the aggregate principal amount of Outstanding Auction Rate Notes subject to Submitted Hold Orders (such excess being herein referred to as the "Available Auction Rate Notes"), and
(2) from the Submitted Orders whether:
a. the aggregate principal amount of Outstanding Auction Rate Notes subject to Submitted Bids by Potential Owners specifying one or more rates equal to or lower than the applicable Maximum Rate;
B-18
Exhibit 4.11
exceeds or is equal to the sum of:
b. the aggregate principal amount of Outstanding Auction Rate Notes subject to Submitted Bids by Existing Owners specifying one or more rates higher than the applicable Maximum Rate; and
c. the aggregate principal amount of Outstanding Auction Rate Notes subject to Submitted Sell Orders;
(in the event such excess or such equality exists, other than because all of the Outstanding Auction Rate Notes are subject to Submitted Hold Orders, such Submitted Bids described in subclause a. above shall be referred to collectively as "Sufficient Bids"); and
(3) if Sufficient Bids exist, the Bid Auction Rate, which shall be the lowest rate specified in such Submitted Bids such that if:
a. (x) each Submitted Bid from Existing Owners specifying such lowest rate and (y) all other Submitted Bids from Existing Owners specifying lower rates were rejected, thus entitling such Existing Owners to continue to own the principal amount of Auction Rate Notes subject to such Submitted Bids; and
b. (x) each such Submitted Bid from Potential Owners specifying such lowest rate and (y) all other Submitted Bids from Potential Owners specifying lower rates were accepted;
the result would be that such Existing Owners described in subclause a. above would continue to own an aggregate principal amount of Outstanding Auction Rate Notes which, when added to the aggregate principal amount of Outstanding Auction Rate Notes to be purchased by such Potential Owners described in subclause b. above, would equal not less than the Available Auction Rate Notes.
(B) Promptly after the Auction Agent has made the determinations pursuant to Section 2.02(a)(iii)(A) of this Appendix B, the Auction Agent shall advise the Indenture Trustee, the Broker-Dealers and the Issuer of the Maximum Rate and the All-Hold Rate and the components thereof on the Auction Date and, based on such determinations, the Auction Rate for the next succeeding Accrual Period as follows:
B-19
Exhibit 4.11
(1) if Sufficient Bids exist, that the Auction Rate for the next succeeding Accrual Period shall be equal to the Bid Auction Rate so determined;
(2) if Sufficient Bids do not exist (other than because all of the Outstanding Auction Rate Notes are subject to Submitted Hold Orders), that the Auction Rate for the next succeeding Accrual Period shall be equal to the applicable Maximum Rate; or
(3) if all Outstanding Auction Rate Notes are subject to Submitted Hold Orders, that the Auction Rate for the next succeeding Accrual Period shall be equal to the applicable All-Hold Rate.
(C) Promptly after the Auction Agent has determined the Auction Rate, the Auction Agent shall determine and advise the Indenture Trustee of the Auction Rate Notes Interest Rate.
(iv) Existing Owners shall continue to own the principal amount of Auction Rate Notes that are subject to Submitted Hold Orders. If the Maximum Rate is equal to or greater than the Bid Auction Rate and if Sufficient Bids have been received by the Auction Agent, the Bid Auction Rate will be the Auction Rate Notes Interest Rate, and Submitted Bids and Submitted Sell Orders will be accepted or rejected and the Auction Agent will take such other action as described below in subparagraph (A).
If the Maximum Rate is less than the Auction Rate, the Auction Rate Notes Interest Rate shall be the Maximum Rate. If the Auction Agent has not received Sufficient Bids (other than because all of the Outstanding Auction Rate Notes are subject to Submitted Hold Orders), the Auction Rate Notes Interest Rate will be the Maximum Rate. In any of the cases described above, Submitted Orders will be accepted or rejected and the Auction Agent will take such other action as described below in subparagraph (B).
(A) If Sufficient Bids have been made and the Maximum Rate is equal to or greater than the Bid Auction Rate, and if the Maximum Rate does not apply (in which case the Auction Rate Notes Interest Rate shall be the Bid Auction Rate), all Submitted Sell Orders shall be accepted and, subject to the provisions of clauses (4) and (5) of this Section 2.02(a)(iv), Submitted Bids shall be accepted or rejected as follows in the following order of priority, and all other Submitted Bids shall be rejected:
(1) Existing Owners' Submitted Bids specifying any rate that is higher than the Auction Rate Notes Interest Rate shall be accepted, thus requiring each such Existing Owner to sell the aggregate principal amount of Auction Rate Notes subject to such Submitted Bids;
B-20

                                Exhibit 4.11

         (2) Existing Owners' Submitted Bids
specifying  any rate that is lower  than the
Auction  Rate Notes  Interest  Rate shall be
rejected,  thus entitling each such Existing
Owner  to  continue  to  own  the  aggregate
principal   amount  of  Auction  Rate  Notes
subject to such Submitted Bids;

         (3)  Potential   Owners'  Submitted
Bids  specifying any rate that is lower than
the Auction Rate Notes  Interest  Rate shall
be accepted;

         (4) Each Existing Owners' Submitted
Bid  specifying  a rate that is equal to the
Auction  Rate Notes  Interest  Rate shall be
rejected, thus entitling such Existing Owner
to continue to own the  aggregate  principal
amount of Auction Rate Notes subject to such
Submitted   Bid,    unless   the   aggregate
principal amount of Outstanding Auction Rate
Notes  subject  to all such  Submitted  Bids
shall be greater than the  principal  amount
of  Auction   Rate  Notes  (the   "remaining
principal  amount")  equal to the  excess of
the  Available  Auction  Rate Notes over the
aggregate  principal  amount of Auction Rate
Notes subject to Submitted Bids described in
clauses   (2)  and   (3)  of  this   Section
2.02(a)(iv)(A),    in   which   event   such
Submitted Bid of such  Existing  Owner shall
be rejected in part, and such Existing Owner
shall be  entitled  to  continue  to own the
principal   amount  of  Auction  Rate  Notes
subject to such  Submitted  Bid, but only in
an amount equal to the  aggregate  principal
amount of  Auction  Rate Notes  obtained  by
multiplying the remaining  principal  amount
by a fraction,  the numerator of which shall
be  the  principal   amount  of  Outstanding
Auction  Rate Notes  owned by such  Existing
Owner subject to such  Submitted Bid and the
denominator of which shall be the sum of the
principal amount of Outstanding Auction Rate
Notes subject to such Submitted Bids made by
all such  Existing  Owners that  specified a
rate  equal  to  the   Auction   Rate  Notes
Interest Rate,  subject to the provisions of
Section  2.02(a)(iv)(D)  of this Appendix B;
and	

(5) Each Potential Owner's Submitted Bid specifying a rate that is equal to the Auction Rate Notes Interest Rate shall be accepted, but only in an amount equal to the principal amount of Auction Rate Notes obtained by multiplying the excess of the aggregate principal amount of Available Auction Rate Notes over the aggregate principal amount of Auction Rate Notes subject to Submitted Bids described in clauses (2), (3) and (4) of this Section 2.02(a)(iv)(A) by a fraction the numerator of which shall be the aggregate principal amount of Outstanding Auction Rate Notes subject to such Submitted Bid and the denominator of which shall be the sum of the principal amount of Outstanding Auction Rate Notes subject to Submitted Bids made by all such Potential
B-21
Exhibit 4.11
Owners that specified a rate equal to the
Auction Rate Notes Interest Rate, subject to
the provisions of Section 2.02(a)(iv)(D) of
this Appendix B.
(B) If Sufficient Bids have not been made (other than because all of the Outstanding Auction Rate Notes are subject to Submitted Hold Orders), or if the Maximum Rate is less than the Bid Auction Rate (in which case the Auction Rate Notes Interest Rate shall be the Maximum Rate), subject to the provisions of Section 2.02(a)(iv)(D) of this Appendix B, Submitted Orders shall be accepted or rejected as follows in the following order of priority and all other Submitted Bids shall be rejected:
(1) Existing Owners' Submitted Bids specifying any rate that is equal to or lower than the Auction Rate Notes Interest Rate shall be rejected, thus entitling such Existing Owners to continue to own the aggregate principal amount of Auction Rate Notes subject to such Submitted Bids;
(2) Potential Owners' Submitted Bids specifying (x) any rate that is equal to or lower than the Auction Rate Notes Interest Rate shall be accepted and (y) any rate that is higher than the Auction Rate Notes Interest Rate shall be rejected; and
(3) each Existing Owner's Submitted Bid specifying any rate that is higher than the Auction Rate Notes Interest Rate and the Submitted Sell Order of each Existing Owner shall be accepted, thus entitling each Existing Owner that submitted any such Submitted Bid or Submitted Sell Order to sell the Auction Rate Notes subject to such Submitted Bid or Submitted Sell Order, but in both cases only in an amount equal to the aggregate principal amount of Auction Rate Notes obtained by multiplying the aggregate principal amount of Auction Rate Notes subject to Submitted Bids described in clause (2)(x) of this Section 2.02(a)(iv)(B) by a fraction, the numerator of which shall be the aggregate principal amount of Outstanding Auction Rate Notes owned by such Existing Owner subject to such Submitted Bid or Submitted Sell Order and the denominator of which shall be the aggregate principal amount of Outstanding Auction Rate Notes subject to all such Submitted Bids and Submitted Sell Orders.
(C) If all Auction Rate Notes are subject to Submitted Hold Orders, all Submitted Bids shall be rejected.
(D) If, as a result of the procedures described in paragraph (A) or (B) of this Section 2.02(a)(iv), any Existing Owner would be entitled or required to sell, or any Potential Owner would be entitled or required to
B-22
Exhibit 4.11
purchase, a principal amount of Auction Rate Notes that is not equal to an Authorized Denomination, the Auction Agent shall, in such manner as in its sole discretion it shall determine, round up or down the principal amount of Auction Rate Notes to be purchased or sold by any Existing Owner or Potential Owner so that the principal amount of Auction Rate Notes purchased or sold by each Existing Owner or Potential Owner shall be equal to an Authorized Denomination.
(E) If, as a result of the procedures described in paragraph (B) of this Section 2.02(a)(iv), any Potential Owner would be entitled or required to purchase less than an Authorized Denomination of Auction Rate Notes, the Auction Agent shall, in such manner as in its sole discretion it shall determine, allocate Auction Rate Notes for purchase among Potential Owners so that only Auction Rate Notes in Authorized Denominations are purchased by any Potential Owner, even if such allocation results in one or more of such Potential Owners not purchasing any Auction Rate Notes.
(v) Based on the result of each Auction, the Auction Agent shall determine the aggregate principal amount of Auction Rate Notes to be purchased and the aggregate principal amount of Auction Rate Notes to be sold by Potential Owners and Existing Owners on whose behalf each Broker-Dealer submitted Bids or Sell Orders and, with respect to each Broker-Dealer, to the extent that such aggregate principal amount of Auction Rate Notes to be sold differs from such aggregate principal amount of Auction Rate Notes to be purchased, determine to which other Broker-Dealer or Broker-Dealers acting for one or more purchasers such Broker-Dealer shall deliver, or from which other Broker-Dealer or Broker-Dealers acting for one or more sellers such Broker-Dealer shall receive, as the case may be, Auction Rate Notes.
(vi) Any calculation by the Auction Agent or the Indenture Trustee, as applicable, of the Auction Rate Notes Interest Rate, the Maximum Rate, the All-Hold Rate and the Non-Payment Rate shall, in the absence of manifest error, be binding on all other parties.
(vii) Notwithstanding anything in this Appendix B to the contrary, (A) no Auction for the Auction Rate Notes for an Auction Period of less than 180 days will be held on any Auction Date hereunder on which there are insufficient moneys in the Collection Fund to pay, or otherwise held by the Indenture Trustee under the Indenture and available to pay, the principal of and interest due on the Auction Rate Notes on the Auction Rate Distribution Date for the appropriate Class of the Auction Rate Notes immediately following such Auction Date, and (B) no Auction will be held on any Auction Date hereunder during the continuance of a Payment Default. The Indenture Trustee shall promptly notify the Auction Agent of any such occurrence.
B-23
Exhibit 4.11
(b) Application of Interest Payments for the Auction Rate Notes.
(i) The Indenture Trustee shall determine not later than 2:00 p.m., eastern time, on the Business Day next succeeding an Auction Rate Distribution Date, whether a Payment Default has occurred. If a Payment Default has occurred, the Indenture Trustee shall, not later than 2:15
p.m., eastern time, on such Business Day, send a notice thereof in substantially the form of Exhibit C attached hereto to the Auction Agent by telecopy or similar means and, if such Payment Default is cured, the Indenture Trustee shall immediately send a notice in substantially the form of Exhibit D attached hereto to the Auction Agent by telecopy or similar means.
(ii) Not later than 2:00 p.m., eastern time, on each anniversary of the Closing Date, the Indenture Trustee shall pay to the Auction Agent, in immediately available funds out of amounts in the Collection Fund, an amount equal to the Auction Agent Fee as set forth in the Auction Agent Agreement. Not later than 2:00 p.m., eastern time, on each Auction Date, the Indenture Trustee shall pay to the Auction Agent, in immediately available funds out of amounts in the Collection Fund, an amount equal to the Broker-Dealer Fee as calculated in the Broker-Dealer Agreement. The Indenture Trustee shall, from time to time at the request of the Auction Agent and at the direction of an Authorized Officer, reimburse the Auction Agent for its reasonable expenses as provided in the Auction Agent Agreement, such expenses to be paid out of amounts in the Collection Fund.
(c) Calculation of Maximum Rate, All-Hold Rate, Applicable LIBOR Rate, and Non-Payment Rate. The Auction Agent shall calculate the Maximum Rate, Applicable LIBOR Rate, and All-Hold Rate, as the case may be, on each Auction Date and shall notify the Indenture Trustee and the Broker-Dealers of the Maximum Rate, Applicable LIBOR Rate and All-Hold Rate, as the case may be, as provided in the Auction Agent Agreement; provided, that if the ownership of the Auction Rate Notes is no longer maintained in Book-entry Form, or if a Payment Default has occurred, then the Indenture Trustee shall determine the Maximum Rate, Applicable LIBOR Rate, All-Hold Rate and Non-Payment Rate for each such Accrual Period. If the ownership of the Auction Rate Notes is no longer maintained in Book-entry Form by the Securities Depository, the Indenture Trustee shall calculate the Maximum Rate on the Business Day immediately preceding the first day of each Accrual Period after the delivery of certificates representing the Auction Rate Notes pursuant to the Indenture. If a Payment Default shall have occurred, the Indenture Trustee shall calculate the Non-Payment Rate on the Interest Rate Determination Date for (i) each Accrual Period commencing after the occurrence and during the continuance of such Payment Default and
(ii) any Accrual Period commencing less than two Business Days after the cure of any Payment Default. The determination by the Indenture Trustee or the Auction Agent, as the case may be, of the Maximum Rate, Applicable LIBOR Rate, All-Hold Rate and Non-Payment Rate shall (in the absence of manifest error) be final and binding upon all parties. If calculated or determined by the Auction Agent, the Auction Agent shall promptly advise the Indenture Trustee of the Maximum Rate, Applicable LIBOR Rate and All-Hold Rate.
B-24
Exhibit 4.11
(d) Notification of Rates, Amounts and Auction Rate Distribution Dates.
(i) By 12:00 noon, eastern time, on the Business Day following each Record Date, the Indenture Trustee shall determine the aggregate amounts of interest distributable on the next succeeding Auction Rate Distribution Date for each Class of the Auction Rate Notes to the beneficial owners of Auction Rate Notes.

         (ii) At least  four days  prior to any  Auction  Rate
Distribution Date, the Indenture Trustee shall:

                  (A) confirm with the Auction Agent,  so long
         as no Payment  Default has occurred and is continuing
         and  the  ownership  of the  Auction  Rate  Notes  is
         maintained  in  Book-entry  Form  by  the  Securities
         Depository,  (1) the date of such next  Auction  Rate
         Distribution  Date for such Class of the Auction Rate
         Notes and (2) the amount payable to the Auction Agent
         on the Auction Date  pursuant to Section  2.02(b)(ii)
         of this Appendix B;	

(B) pursuant to Section 2.01 of this Appendix B, advise the Registered Owners of each Class of the Auction Rate Notes of any Auction Rate Notes Carry-over Amount accruing on such Class of the Auction Rate Notes; and
(C) advise the Securities Depository, so long as the ownership of the Auction Rate Notes is maintained in Book-entry Form by the Securities Depository, upon request, of the aggregate amount of interest distributable on such next Auction Rate Distribution Date for such Class of the Auction Rate Notes to the beneficial owners thereof.
If any day scheduled to be an Auction Rate Distribution Date shall be changed after the Indenture Trustee shall have given the notice or confirmation referred to in clause (i) of the preceding sentence, the Indenture Trustee shall, not later than 11:15 a.m., eastern time, on the Business Day next preceding the earlier of the new Auction Rate Distribution Date or the old Auction Rate Distribution Date, by such means as the Indenture Trustee deems practicable, give notice of such change to the Auction Agent, so long as no Payment Default has occurred and is continuing and the ownership of the Auction Rate Notes is maintained in Book-entry Form by the Securities Depository.
(e) Auction Agent.
(i) Deutsche Bank Trust Company Americas is hereby appointed as Initial Auction Agent to serve as agent for the Issuer in connection with Auctions. The Indenture Trustee and the Issuer will, and the Indenture Trustee is hereby directed to, enter into the Initial Auction Agent Agreement with Deutsche Bank Trust Company Americas, as the Initial Auction Agent. Any Substitute Auction Agent shall be (A) a bank, national banking association or trust company duly organized under the laws of the United States of America or any state or territory
B-25
Exhibit 4.11
thereof having its principal place of business in the Borough of Manhattan, New York, or such other location as approved by the Indenture Trustee in writing and having a combined capital stock or surplus of at least $50,000,000, or (B) a member of the National Association of Securities Dealers, Inc., having a capitalization of at least $50,000,000, and, in either case, authorized by law to perform all the duties imposed upon it hereunder and under the Auction Agent Agreement. The Auction Agent may at any time resign and be discharged of the duties and obligations created by this Appendix B by giving at least 90 days' notice to the Indenture Trustee, each Broker-Dealer and the Issuer. The Auction Agent may be removed at any time by the Indenture Trustee upon the written direction of an Authorized Officer or the Registered Owners of 51% of the aggregate principal amount of the Auction Rate Notes then Outstanding, and if by such Registered Owners, by an instrument signed by such Registered Owners or their attorneys and filed with the Auction Agent, the Issuer and the Indenture Trustee upon at least 90 days' written notice. Neither resignation nor removal of the Auction Agent pursuant to the preceding two sentences shall be effective until and unless a Substitute Auction Agent has been appointed and has accepted such appointment. If required by the Issuer, a Substitute Auction Agent Agreement shall be entered into with a Substitute Auction Agent. Notwithstanding the foregoing, the Auction Agent may terminate the Auction Agent Agreement if, within 25 days after notifying the Indenture Trustee, each Broker-Dealer and the Issuer in writing that it has not received payment of any Auction Agent Fee due it in accordance with the terms of the Auction Agent Agreement, the Auction Agent does not receive such payment.
(ii) If the Auction Agent shall resign or be removed or be dissolved, or if the property or affairs of the Auction Agent shall be taken under the control of any state or federal court or administrative body because of bankruptcy or insolvency, or for any other reason, the Indenture Trustee at the direction of an Authorized Officer, shall use its best efforts to appoint a Substitute Auction Agent.
(iii) The Auction Agent is acting as agent for the Issuer in connection with Auctions. In the absence of bad faith, negligent failure to act or negligence on its part, the Auction Agent shall not be liable for any action taken, suffered or omitted or any error of judgment made by it in the performance of its duties under the Auction Agent Agreement and shall not be liable for any error of judgment made in good faith unless the Auction Agent shall have been negligent in ascertaining (or failing to ascertain) the pertinent facts.
(f) Broker-Dealers.
(i) The Auction Agent will enter into Broker-Dealer Agreements with Credit Suisse First Boston LLC and Deutsche Bank Securities Inc. as the initial Broker-Dealers. An Authorized Officer may, from time to time, approve one or more additional persons to serve as Broker-Dealers under Broker-Dealer
B-26
Exhibit 4.11
Agreements and shall be responsible for providing such Broker-Dealer Agreements to the Indenture Trustee and the Auction Agent.
(ii) Any Broker-Dealer may be removed at any time, at the request of an Authorized Officer, but there shall, at all times, be at least one Broker-Dealer appointed and acting as such.
(g) Changes in Auction Period or Periods and Certain Percentages.
(i) While any of the Auction Rate Notes are Outstanding, the Issuer may, from time to time, change the length of one or more Auction Periods (an "Auction Period Adjustment") for a Class of the Auction Rate Notes, in order to conform with then current market practice with respect to similar securities or to accommodate economic and financial factors that may affect or be relevant to the length of the Auction Period and the interest rate borne by the Auction Rate Notes. The Issuer shall not initiate an Auction Period Adjustment unless it shall have received the written consent of the applicable Broker-Dealer, which consent shall not be unreasonably withheld, not later than nine days prior to the Auction Date for such Auction Period. The Issuer shall initiate the Auction Period Adjustment by giving written notice by Issuer Order to the Indenture Trustee, the Auction Agent, the applicable Broker-Dealer, each Rating Agency and the Securities Depository in substantially the form of, or containing substantially the information contained in, Exhibit E attached hereto at least 10 days prior to the Auction Date for such Auction Period.
(ii) Any such adjusted Auction Period shall not be less than 7 days.
(iii) An Auction Period Adjustment shall take effect only if (A) the Indenture Trustee and the Auction Agent receive, by 11:00 a.m., eastern time, on the Business Day before the Auction Date for the first such Auction Period, an Issuer Certificate in substantially the form attached as, or containing substantially the same information contained in, Exhibit F attached hereto, authorizing the Auction Period Adjustment specified in such certificate along with a copy of the written consent of the applicable Broker-Dealer and, (B) Sufficient Bids exist as of the Auction on the Auction Date for such first Auction Period. If the condition referred to in (A) above is not met, the applicable Auction Rate Notes Interest Rate for the next Auction Period shall be determined pursuant to the above provisions of this Section and the Auction Period shall be the Auction Period determined without reference to the proposed change. If the condition referred to in (A) is met but the condition referred in (B) above is not met, the applicable Auction Rate Notes Interest Rate for the next Auction Period shall be the Maximum Rate and the Auction Period shall be the Auction Period determined without reference to the proposed change.
In connection with any Auction Period Adjustment, the Auction Agent shall provide such further notice to such parties as is specified in Section 2.06 of the Auction Agent Agreement.
B-27
Exhibit 4.11
(h) Changes in the Auction Date. The applicable Broker-Dealer, with the written consent of an Authorized Officer, may specify an earlier Auction Date (but in no event more than five Business Days earlier) than the Auction Date that would otherwise be determined in accordance with the definition of "Auction Date" in Section 1.01 of this Appendix B with respect to one or more specified Auction Periods in order to conform with then current market practice with respect to similar securities or to accommodate economic and financial factors that may affect or be relevant to the day of the week constituting an Auction Date and the interest rate borne on the Auction Rate Notes. The applicable Broker-Dealer shall deliver a written request for consent to such change in the length of the Auction Date to the Issuer at least 14 days prior to the effective date of such change. If the Issuer shall have delivered such written consent to the applicable Broker-Dealer, such Broker-Dealer shall provide notice of its determination to specify an earlier Auction Date for one or more Auction Periods by means of a written notice delivered at least 10 days prior to the proposed changed Auction Date to the Indenture Trustee, the Auction Agent, the Issuer, each Rating Agency and the Securities Depository. Such notice shall be substantially in the form of, or contain substantially the information contained in, Exhibit G attached hereto.
In connection with any change described in this subsection
(h), the Auction Agent shall provide such further notice to such parties as is specified in Section 2.06 of the Auction Agent Agreement.
Section 2.03. Additional Provisions Regarding the Interest Rates on the Auction Rate Notes. The determination of an Auction Rate Notes Interest Rate by the Auction Agent or any other Person pursuant to the provisions of the applicable Section of this Article II shall be conclusive and binding on the Registered Owners of the Auction Rate Notes to which such Auction Rate Notes Interest Rate applies, and the Issuer and the Indenture Trustee may rely thereon for all purposes.
In no event shall the cumulative amount of interest paid or payable on the Auction Rate Notes (including interest calculated as provided herein, plus any other amounts that constitute interest on the Auction Rate Notes under applicable law, which are contracted for, charged, reserved, taken or received pursuant to the Auction Rate Notes or related documents) calculated from the Date of Closing of the Auction Rate Notes through any subsequent day during the term of the Auction Rate Notes or otherwise prior to payment in full of the Auction Rate Notes exceed the amount permitted by applicable law. If the applicable law is ever judicially interpreted so as to render usurious any amount called for under the Auction Rate Notes or related documents or otherwise contracted for, charged, reserved, taken or received in connection with the Auction Rate Notes, or if the redemption or acceleration of the maturity of the Auction Rate Notes results in payment to or receipt by the Registered Owner or any former Registered Owner of the Auction Rate Notes of any interest in excess of that permitted by applicable law, then, notwithstanding any provision of the Auction Rate Notes or related documents to the contrary, all excess amounts theretofore paid or received with respect to the Auction Rate Notes shall be credited on the principal balance of the Auction Rate Notes (or, if the Auction Rate Notes have been paid or would thereby be paid in full, refunded by the recipient thereof), and the provisions of the Auction Rate Notes and related documents shall automatically and immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced,
B-28
Exhibit 4.11
without the necessity of the execution of any new document, so as to comply with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for under the Auction Rate Notes and under the related documents.
B-29
Exhibit 4.11
APPENDIX C
TRANSFER RESTRICTIONS FOR
THE SERIES 2004-1 NOTES
1. Except as otherwise specified herein or as the context may otherwise require, capitalized terms used but not otherwise defined in this Appendix C are defined in the Indenture, which also contains rules as to usage that shall be applicable herein.
2. The Indenture Trustee, as registrar for the Series 2004-1 Notes, shall provide for the registration of the Series 2004-1 Notes and of transfers and exchanges of the Series 2004-1 Notes pursuant to Section 2.03 of the Indenture.
3. The Series 2004-1 Notes will be initially represented by registered notes of such Class in global form and shall be issued in the manner set forth in Section 2.01 of the Indenture. The global notes may be reissued and represented by Series 2004-1 Notes of such Class in definitive form pursuant to
Section 2.01(d) of the Indenture.
4. Any transfer made in violation of Section 2.03 of the Indenture or this Appendix C of Reset Rate Notes that represent a beneficial interest in a Rule 144A Certificate such that the beneficial interest is then held in Regulation S Certificate, or vice versa, shall be null and void and of no effect.
5. Each purchaser of the Series 2004-1 Notes that represent a beneficial interest in a Global Certificate will be deemed to have represented and agreed, and each purchaser of a Definitive Certificate will be required to certify in writing, that:
(i) in connection with the purchase of the Series 2004-1 Notes, (1) none of the Issuer, the Indenture Trustee, the Initial Purchasers or any of their respective affiliates is acting as a fiduciary or financial or investment advisor for such beneficial owner;
(2) such beneficial owner is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Indenture Trustee or the Initial Purchasers or any of their respective affiliates other than any statements in the final offering memorandum for such notes, and such beneficial owner has read and understands such final offering circular; (3) such beneficial owner has consulted with its own legal, regulatory, tax, business, investment, financial and accounting advisors to the extent it has deemed necessary and has made its own investment decisions (including decisions regarding the suitability of any transaction pursuant to the indenture) based upon its own judgment and upon any advice from such advisors as it has deemed necessary and not upon any view expressed by the Issuer, the Indenture Trustee, or the Initial Purchasers or any of their respective affiliates; and
(4)(A) the purchaser is a Qualified Institutional Buyer and is acquiring such Series 2004-1 Notes for its own account or as a fiduciary or agent for others (which others also must be Qualified Institutional Buyers), for investment purposes and not for distribution in violation of the Securities Act, and it is able to bear the economic risk of an investment in the Series 2004-1 Notes and has such knowledge and experience in
Exhibit 4.11
financial and business matters as to be capable of evaluating the merits and risks of purchasing the Series 2004-1 Notes or (B) with respect to the Reset Rate Notes, the purchaser is a Non-U.S. Person outside the United States of America, acquiring the Reset Rate Notes pursuant to an exemption from registration in accordance with Rule 903 or Rule 904 of Regulation S;
(ii) the purchaser understands that the Series 2004-1 Notes are being offered only in a transaction that does not require registration under the Securities Act and, if such purchaser decides to resell or otherwise transfer such Series 2004-1 Notes, then it agrees that it will resell or transfer such Series 2004-1 Notes only (A) so long as such Series 2004-1 Notes are eligible for resale pursuant to Rule 144A, to a person whom the seller reasonably believes is a Qualified Institutional Buyer acquiring the Series 2004-1 Notes for its own account or as a fiduciary or agent for others (which others must also be Qualified Institutional Buyers) to whom notice is given that the resale or other transfer is being made in reliance on Rule 144A, (B) pursuant to an effective registration statement under the Securities Act, or (C) with respect to the Reset Rate Notes, to a purchaser who is a Non-U.S. Person outside the United States of America, acquiring the Reset Rate Notes pursuant to an exemption from registration under the Securities Act in accordance with Rule 903 or Rule 904 of Regulation S, in each case in accordance with any applicable United States state securities or "blue sky" laws or any securities laws of any other jurisdiction;
(iii) unless the relevant legend set out below has been removed from the Series 2004-1 Notes such purchaser shall notify each transferee of the Series 2004-1 Notes that (A) such Series 2004-1 Notes have not been registered under the Securities Act, (B) the holder of such Series 2004-1 Notes is subject to the restrictions on the resale or other transfer thereof described in paragraph (ii) above, (C) such transferee shall be deemed to have represented (1) as to its status as a Qualified Institutional Buyer or, with respect to the Reset Rate Notes, a purchaser acquiring the Reset Rate Notes in an offshore transaction pursuant to the requirements of Regulation S, as the case may be, (2) if such transferee is a Qualified Institutional Buyer, that such transferee is acquiring the Series 2004-1 Notes for its own account or as a fiduciary or agent for others (which others also must be Qualified Institutional Buyers) (or that such transferee is acquiring such Series 2004-1 Notes pursuant to an effective registration statement under the Securities Act), (3) if such transferee is a Non-U.S. Person outside the United States of America, that such transferee is acquiring the Reset Rate Notes pursuant to an exemption from registration under the Securities Act in accordance with the requirements of Rule 903 or Rule 904 of Regulation S, (4) that such transferee is not an underwriter within the meaning of Section 2(11) of the Securities Act, and (5) that such transferee shall be deemed to have agreed to notify its subsequent transferees as to the foregoing;
(iv) the acquisition or purchase by an employee benefit plan or other retirement arrangements ("Plan") of a Series 2004-1 Note will not constitute or otherwise result in: (A) in the case of a Plan subject to Section 406 of Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code, a non-exempt prohibited transaction in violation of Section 406 of ERISA or Section 4975 of the Code which is not covered by a class or other applicable exemption and (B) in the
C-2
Exhibit 4.11
case of a Plan subject to a substantially similar federal, state, local or foreign law ("Similar Law"), a non-exempt violation of such substantially Similar Law; and
(v) it is aware that, except as otherwise provided in the indenture, any Series 2004-1 Notes being sold to it in reliance on Regulation S will be represented by one or more Regulation S Certificates and that beneficial interests therein may be held only through DTC for the respective accounts of Euroclear or Clearstream.
6. By acceptance of a Series 2004-1 Note, whether upon original issuance or subsequent transfer, each Registered Owner of such Series 2004-1 Note (or a beneficial interest therein), acknowledges or is deemed to acknowledge, as the case may be, the restrictions on the transfer of such Series 2004-1 Notes and that the following securities legend (the "Securities Legend") shall be affixed to each Rule 144A Certificate, each Regulation S Certificate and each Definitive Certificate unless determined otherwise in accordance with applicable law:
THIS [RESET RATE NOTE] [AUCTION RATE NOTE] HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY UNITED STATES STATE SECURITIES OR "BLUE SKY" LAWS OR ANY SECURITIES LAWS OF ANY OTHER JURISDICTION, AND, AS A MATTER OF U.S. LAW, MAY NOT BE OFFERED OR SOLD IN VIOLATION OF THE SECURITIES ACT OR SUCH OTHER LAWS. THIS NOTE MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF NOT LESS THAN [$100,000 AND ANY INTEGRAL MULTIPLE OF $1,000 IN EXCESS THEREOF] [$50,000 AND ANY INTEGRAL MULTIPLE THEREOF]. THE HOLDER HEREOF, BY PURCHASING OR ACCEPTING THIS [RESET RATE NOTE] [AUCTION RATE NOTE] IS HEREBY DEEMED TO HAVE AGREED FOR THE BENEFIT OF THE ISSUER AND THE INITIAL PURCHASERS THAT IT WILL RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE, AS A MATTER OF U.S. LAW, ONLY (A)(1) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE, PURSUANT TO RULE 144A PROMULGATED UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN RULE 144A (A "QUALIFIED INSTITUTIONAL BUYER"), THAT IS ACQUIRING THIS [RESET RATE NOTE] 
[AUCTION RATE NOTE] FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR
OTHERS (WHICH OTHERS MUST ALSO BE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, [(2) TO A PERSON WHO IS NOT A U.S. PERSON (AS DEFINED IN REGULATION S PROMULGATED UNDER THE SECURITIES ACT ) OUTSIDE THE UNITED STATES OF AMERICA ACQUIRING THIS RESET RATE NOTE IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S PROMULGATED UNDER THE SECURITIES ACT] OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY UNITED STATES STATE SECURITIES OR "BLUE SKY" LAWS OR ANY SECURITIES LAWS OF ANY OTHER JURISDICTION.
C-3
Exhibit 4.11
UPON ACQUISITION OR TRANSFER OF [A RESET RATE NOTE] [AN AUCTION RATE NOTE] OR A BENEFICIAL INTEREST IN [A RESET RATE NOTE] [AN AUCTION RATE NOTE], AS THE CASE MAY BE, BY, FOR OR WITH THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (A "PLAN"), SUCH [RESET RATE NOTE] [AUCTION RATE NOTE] OWNER SHALL BE DEEMED TO HAVE REPRESENTED THAT SUCH ACQUISITION OR PURCHASE WILL NOT CONSTITUTE OR OTHERWISE RESULT IN: (I) IN THE CASE OF A PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A NON-EXEMPT PROHIBITED TRANSACTION IN VIOLATION OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WHICH IS NOT COVERED BY A CLASS OR OTHER APPLICABLE EXEMPTION AND (II) IN THE CASE OF A PLAN SUBJECT TO A SUBSTANTIALLY SIMILAR FEDERAL, STATE, LOCAL OR FOREIGN LAW ("SIMILAR LAW"), A NON-EXEMPT VIOLATION OF SUCH SUBSTANTIALLY SIMILAR LAW. ANY TRANSFER FOUND TO HAVE BEEN MADE IN VIOLATION OF SUCH DEEMED REPRESENTATION SHALL BE NULL AND VOID AND OF NO EFFECT.
THIS [RESET RATE NOTE] [AUCTION RATE NOTE] AND RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES UNDERTAKEN OR REPRESENTED BY THE HOLDER, FOR RESALES AND OTHER TRANSFERS OF THIS [RESET RATE NOTE] 
[AUCTION RATE NOTE], TO REFLECT ANY CHANGE IN APPLICABLE LAWS OR
REGULATIONS (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO RESALES OR OTHER TRANSFERS OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS NOTE AND ANY BENEFICIAL OWNER OF ANY INTEREST THEREIN SHALL BE DEEMED, BY ITS ACCEPTANCE OR PURCHASE HEREOF, TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT (EACH OF WHICH SHALL BE CONCLUSIVE AND BINDING ON THE HOLDER HEREOF AND ALL FUTURE HOLDERS OF THIS [RESET RATE NOTE] [AUCTION RATE NOTE] AND ANY [RESET RATE NOTE] [AUCTION RATE NOTE] ISSUED IN EXCHANGE OR SUBSTITUTION HEREFOR, WHETHER OR NOT ANY NOTATION THEREOF IS MADE HEREON) AND AGREES TO TRANSFER THIS [RESET RATE NOTE] [AUCTION RATE NOTE] ONLY IN ACCORDANCE WITH ANY SUCH AMENDMENT OR SUPPLEMENT IN ACCORDANCE WITH APPLICABLE LAW IN EFFECT AT THE DATE OF SUCH TRANSFER.
Upon the transfer, exchange or replacement of a Rule 144A Certificate or a Regulation S Certificate bearing the legend set forth above, or upon specific request for removal of the legends, the Issuer or the Indenture Trustee will deliver only replacement Rule 144A Certificates or Regulation S Certificates, as the case may be, that bear such applicable legends, or will refuse to remove such applicable legends, unless there is delivered to the Issuer and the Indenture Trustee such satisfactory evidence (which may include a legal opinion) as may reasonably be required by the Trust and the Indenture Trustee that neither the applicable legends nor the
C-4
Exhibit 4.11
restrictions on transfer set forth therein are required to ensure compliance with the provisions of the Securities Act.
Whenever a Global Certificate is to be exchanged for Definitive Certificates, such Definitive Certificates will be issued within five business days of delivery to the Indenture Trustee of the information and any required certification described in the preceding paragraph against the surrender of the relevant Global Certificate at the specified office of the Indenture Trustee. Such exchange shall be effected in accordance with the regulations concerning the transfer and registration from time to time relating to the Series 2004-1 Notes and shall be effected without charge, but against such indemnity as the Indenture Trustee may require in respect of any tax or other duty of whatsoever nature which may be levied or imposed in connection with such exchange.
Each Registered Owner of such Series 2004-1 Note, by its acceptance of a Series 2004-1 Note or a beneficial interest therein, respectively, also agrees that it will transfer such Series 2004-1 Note or beneficial interest therein, as the case may be, only as provided in this Appendix C and in accordance with the Indenture. In addition, by acceptance of any Series 2004-1 Note or beneficial interest therein, as applicable, each proposed transferee thereof is hereby deemed to have agreed with the conditions set forth in the Securities Legend and agreed, by virtue of its acceptance of such Series 2004-1 Note or beneficial interest therein, as the case may be, to indemnify the Administrator, the Servicer, the Indenture Trustee the Eligible Lender Trustee, the Remarketing Agents (in the event such transfer is made pursuant to a successful remarketing on a Reset Date) and the Issuer against any and all liability that may result if such transfer is not made in a manner consistent with the restrictions set forth in the Securities Legend. In addition to any applicable restrictions in the Indenture, with respect to the transfer and registration of transfer of any Series 2004-1 Note registered in the name of a Registered Owner other than DTC or its nominee, to a transferee that takes delivery in the form of a Definitive Certificate, in a transaction other than pursuant to an effective registration statement under the Securities Act, the Indenture Trustee shall register the transfer of such Definitive Certificate if (i)(A) the requested transfer is being made to a transferee who has provided the Indenture Trustee and the Administrator with a Rule 144A and Related Matters Certificate, substantially in the form attached as Annex 1 to this Appendix C, (B) such transferee has provided comparable evidence as to its Qualified Institutional Buyer status, or
(C) such transfer is being made in compliance with Regulation S and such transferee has provided the Indenture Trustee and the Administrator with a Regulation S and Related Matters Certificate, substantially in the form attached as Annex 2 to this Appendix C, and (ii) the applicable transferor has provided the Indenture Trustee and the Administrator with a Transferor Letter, substantially in the form of Annex 3 to this Appendix C.
C-5
Exhibit 4.11
ANNEX 1 TO APPENDIX C
FORM OF RULE 144A AND RELATED MATTERS CERTIFICATE
[Date]
Wells Fargo Bank Minnesota, National Association, as Indenture Trustee
Sixth and Marquette, N9303-110
Minneapolis, Minnesota 55479
Attention: Corporate Trust Department
National Education Loan Network, Inc.,
as Administrator
121 South 13th Street, Suite 201
Lincoln, Nebraska 68508
Re: Nelnet Education Loan Funding, Inc., Student Loan Asset-Backed Notes [Class 2004A-1A Reset Rate Notes] [Class 2004A-1B Reset Rate Notes] [Class 2004A-2 Reset Rate Notes] [Class 2004A-3 Reset Rate Notes] [Class 2004B-1 Auction Rate Notes] [Class 2004B-2 Auction Rate Notes].
Ladies and Gentlemen:
In connection with our purchase of the [Reset Rate Notes] [Auction Rate Notes] of the above-referenced series, the undersigned certifies to each of the parties to whom this letter is addressed that it is a Qualified Institutional Buyer (as defined in Rule 144A under the Securities Act of 1933, as amended (the "Act")) as follows:
(A) It owned and/or invested on a discretionary basis eligible securities (excluding affiliate's securities, bank deposit notes and CD's, loan participations, repurchase agreements, securities owned but subject to a repurchase agreement and swaps), as described below:
Date: ______________, 20__ (must be on or after the close of its most recent fiscal year)
Amount: $_________________; and
(B) The dollar amount set forth above is:
1. [ ] greater than $100 million and the undersigned is one of the following entities:
[ ] an insurance company as defined in Section 2(13) of the Securities Act; or
C-A-1-1
Exhibit 4.11
[ ] an investment company registered under the Investment Company Act or any business development company as defined in Section 2(a)(48) of the Investment Company Act of 1940; or
[ ] a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958; or
[ ] a plan (i) established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, the laws of which permit the purchase of securities of this type, for the benefit of its employees and (ii) the governing investment guidelines of which permit the purchase of securities of this type; or
[ ] a business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940; or
[ ] a corporation (other than a U.S. bank, savings and loan association or equivalent foreign institution), partnership, Massachusetts or similar business trust, or an organization described in Section 501(c)(3) of the Internal Revenue Code; or
[ ] a U.S. bank, savings and loan association or equivalent foreign institution, which has an audited net worth of at least $25 million as demonstrated in its latest annual financial statements; or
[ ] an investment adviser registered under the Investment Advisers Act; or
2. [ ] greater than $10 million, and the undersigned is a broker-dealer registered with the SEC; or
3. [ ] less than $10 million, and the undersigned is a broker-dealer registered with the SEC and will only purchase Rule 144A securities in transactions in which it acts as a riskless principal (as defined in Rule 144A); or
4. [ ] less than $100 million, and the undersigned is an investment company registered under the Investment Company Act of 1940, which, together with one or more registered investment companies having the same or an affiliated investment adviser, owns at least $100 million of eligible securities; or
5. [ ] less than $100 million, and the undersigned is an entity, all the equity owners of which are Qualified Institutional Buyers.
The undersigned further certifies that it is purchasing the Series 2004-1 Notes for its own account or for the account of others that independently qualify as "Qualified Institutional Buyers" as defined in Rule 144A (a "Qualified Institutional Buyer"). It is aware that the sale of
C-A-1-2
Exhibit 4.11
the Series 2004-1 Notes is being made in reliance on its continued compliance with Rule 144A. It is aware that the transferor may rely on the exemption from the provisions of Section 5 of the Securities Act provided by Rule 144A. The undersigned understands that the Series 2004-1 Notes may transferred only (A) so long as such Reset Rate Notes are eligible for resale pursuant to Rule 144A, to a person whom the seller reasonably believes is a Qualified Institutional Buyer acquiring the Reset Rate Notes for its own account or as a fiduciary or agent for others (which others must also be Qualified Institutional Buyers) to whom notice is given that the transfer is being made in reliance on Rule 144A, (B) pursuant to an effective registration statement under the Securities Act, or (C) with respect to Reset Rate Notes, to a purchaser who is a Non-U.S. Person (as defined in Regulation S) outside the United States of America, acquiring the Reset Rate Notes pursuant to an exemption from registration under the Securities Act in accordance with Rule 903 or Rule 904 of Regulation S, in each case in accordance with any applicable United States state securities or "blue sky" laws or any securities laws of any other jurisdiction.
The undersigned agrees that if at some future time it wishes to dispose of or exchange any of the Series 2004-1 Notes, it will not transfer or exchange any of the Series 2004-1 Notes unless: (1) the sale is to an Eligible Purchaser (as defined below), (2) all offers or solicitations in connection with the sale, whether directly or through any agent acting on our behalf, are limited only to Eligible Purchasers and are not made by means of any form of general solicitation or general advertising whatsoever, and (3) such transferee shall deliver a Rule 144A and Related Matters Certificate to substantially the same effect as this letter to the addressees hereof or a Regulation S and Related Matters Certificate substantially in the same form as Annex 2 to Appendix C to the Indenture, or such other evidence as may be reasonably acceptable to the Administrator.
The undersigned hereby represents and warrants that the undersigned is accepting ownership of the Series 2004-1 Notes in compliance with the restrictions set forth in Section 5 of Appendix C to the Indenture of Trust, dated as of January 1, 2004 (the "Indenture"), among Nelnet Education Loan Funding, Inc., Wells Fargo Bank Minnesota, National Association, as eligible lender trustee, and Wells Fargo Bank Minnesota, National Association, as indenture trustee, and acknowledges that the Series 2004-1 Notes will be issued with the legends set forth in Section 6 of Appendix C to the Indenture.
"Eligible Purchaser" means a corporation, partnership or other entity which we have reasonable grounds to believe and do believe (A)(i) can make representations with respect to itself to substantially the same effect as the representations set forth herein, and (ii) is a Qualified Institutional Buyer as defined under Rule 144A of the Securities Act or any entity in which all of the equity owners come within such paragraphs, (B) can make representations with respect to itself to substantially the same effect as the representations set forth in the Regulation S and Related Matters Certificate in the same form as Annex 2 to Appendix C to the Indenture, or (C)(i) can make representations with respect to itself substantially to the same effect as the representations set forth herein (other than to its status as a Qualified Institutional Buyer), and
(ii) is acquiring such Series 2004-1 Notes in reliance on an exemption to the Securities Act other than Rule 144A in accordance with any applicable United States state securities or "Blue Sky" laws.
C-A-1-3
Exhibit 4.11
If the Purchaser proposes that its Series 2004-1 Notes be registered in the name of a nominee on its behalf, the Purchaser has identified such nominee below, and has caused such nominee to complete the Nominee Acknowledgment at the end of this letter.
Name of Nominee (if any): _____________________
IN WITNESS WHEREOF, this document has been executed by the undersigned who is duly authorized to do so on behalf of the undersigned Qualified Institutional Buyer on the ____ day of ___________, 20__.
Name of Institution

Signature

Name

Title
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Series 2004-1 Notes being registered in its name, the sole beneficial owner thereof is and shall be the Purchaser identified above, for whom the undersigned is acting as nominee.
By:

Duly Authorized
C-A-1-4
Exhibit 4.11
ANNEX 2 TO APPENDIX C
FORM OF REGULATION S AND RELATED MATTERS CERTIFICATE
[Date]
Wells Fargo Bank Minnesota, National Association, as Indenture Trustee
Sixth and Marquette, N9303-110
Minneapolis, Minnesota 55479
Attention: Corporate Trust Department
National Education Loan Network, Inc.,
as Administrator
121 South 13th Street, Suite 201
Lincoln, Nebraska 68508
Re: Nelnet Education Loan Funding, Inc., Student Loan Asset-Backed Notes [Class 2004A-1A Reset Rate Notes] [Class 2004A-1B Reset Rate Notes] [Class 2004A-2 Reset Rate Notes] [Class 2004A-3 Reset Rate Notes]
Ladies and Gentlemen:
In connection with our purchase of the Reset Rate Notes of the above-referenced series, the undersigned certifies to each of the parties to whom this letter is addressed that it is a Non-U.S. Person (as defined in Regulation S) outside the United States of America, acquiring the Reset Rate Notes pursuant to an exemption from registration in accordance with Rule 903 or Rule 904 of Regulation S.
The undersigned further certifies that it is purchasing the Reset Rate Notes for its own account or for the account of others that independently qualify as Non-U.S. Persons (as defined in Regulation S) outside the United States of America. It is aware that the sale of the Reset Rate Notes is being made in reliance on its continued compliance with Rule 903 or Rule 904 of Regulation S. The undersigned understands that the Reset Rate Notes may resold or transferred only (A) so long as such Reset Rate Notes are eligible for resale pursuant to Rule 144A, to a person whom the seller reasonably believes is a Qualified Institutional Buyer acquiring the Reset Rate Notes for its own account or as a fiduciary or agent for others (which others must also be Qualified Institutional Buyers) to whom notice is given that the resale or other transfer is being made in reliance on Rule 144A, (B) pursuant to an effective registration statement under the Securities Act, or (C) to a purchaser who is a Non-U.S. Person (as defined in Regulation S) outside the United States of America, acquiring the Reset Rate Notes pursuant to an exemption from registration under the Securities Act in accordance with Rule 903 or Rule 904 of Regulation S, in each case in accordance with any applicable United States state securities or "blue sky" laws or any securities laws of any other jurisdiction.
The undersigned agrees that if at some future time it wishes to dispose of or exchange any of the Reset Rate Notes, it will not transfer or exchange any of the Reset Rate Notes unless:
C-A-2-1
Exhibit 4.11
(1) the sale is to an Eligible Purchaser (as defined below), (2) all offers or solicitations in connection with the sale, whether directly or through any agent acting on our behalf, are limited only to Eligible Purchasers and are not made by means of any form of general solicitation or general advertising whatsoever, and (3) such transferee shall deliver a Rule 144A and Related Matters Certificate substantially in the same form as Annex 1 to Appendix C to the Indenture, or a Regulation S and Related Matters Certificate to substantially the same effect as this letter to the addressees hereof or such other evidence as may be reasonably acceptable to the Administrator and the Indenture Trustee.
The undersigned hereby represents and warrants that the undersigned is accepting ownership of the Reset Rate Notes in compliance with the restrictions set forth in Section 5 of Appendix C to the Indenture of Trust, dated as of January 1, 2004 (the "Indenture"), among Nelnet Education Loan Funding, Inc., Wells Fargo Bank Minnesota, National Association, as eligible lender trustee, and Wells Fargo Bank Minnesota, National Association, as indenture trustee, and acknowledges that the Reset Rate Notes will be issued with the legends set forth in Section 6 to Appendix C to the Indenture.
"Eligible Purchaser" means a corporation, partnership or other entity which we have reasonable grounds to believe and do believe (A)(i) can make representations with respect to itself to substantially the same effect as the representations set forth herein, and (ii) is a Qualified Institutional Buyer as defined under Rule 144A of the Securities Act or any entity in which all of the equity owners come within such paragraphs, (B)(i) can make representations with respect to itself to substantially the same effect as the representations set forth in the Regulation S and Related Matters Certificate in the same form as Annex 2 to Appendix C to the Indenture, and (ii) is acquiring such Reset Rate Notes pursuant to an exemption from registration in accordance with Rule 903 or Rule 904 of Regulation S, or (C)(i) can make representations with respect to itself substantially to the same effect as the representations set forth herein (other than to its status as a Qualified Institutional Buyer), and (ii) is acquiring such Reset Rate Notes in reliance on an exemption to the Securities Act other than Rule 144A in accordance with any applicable United States state securities or "Blue Sky" laws.
If the Purchaser proposes that its Reset Rate Notes be registered in the name of a nominee on its behalf, the Purchaser has identified such nominee below, and has caused such nominee to complete the Nominee Acknowledgment at the end of this letter.
Name of Nominee (if any): _____________________
IN WITNESS WHEREOF, this document has been executed by the undersigned who is duly authorized to do so on behalf of the undersigned Qualified Institutional Buyer on the ____ day of ___________, 20__.
Name of Institution

Signature

Name

Title
C-A-1-2
Exhibit 4.11
Nominee Acknowledgment
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Reset Rate Notes being registered in its name, the sole beneficial owner thereof is and shall be the Purchaser identified above, for whom the undersigned is acting as nominee.
By:

Duly Authorized
C-A-1-3
Exhibit 4.11
ANNEX 3 TO APPENDIX C
FORM OF TRANSFEROR LETTER
[Date]
Wells Fargo Bank Minnesota, National Association, as Indenture Trustee
Sixth and Marquette, N9303-110
Minneapolis, Minnesota 55479
Attention: Corporate Trust Department
National Education Loan Network, Inc.,
as Administrator
121 South 13th Street, Suite 201
Lincoln, Nebraska 68508
Re: Nelnet Education Loan Funding, Inc., Student Loan Asset-Backed Notes [Class 2004A-1A Reset Rate Notes] [Class 2004A-1B Reset Rate Notes] [Class 2004A-2 Reset Rate Notes] [Class 2004A-3 Reset Rate Notes] [Class 2004B-1 Auction Rate Notes] [Class 2004B-2 Auction Rate Notes].
Ladies and Gentlemen:
In connection with our disposition of the Series 2004-1 Notes of the above-referenced class owned by us, we certify that (a) we understand that the Series 2004-1 Notes have not been registered under the Securities Act of 1933, as amended (the "Securities Act"), and are being disposed by us in a transaction that is exempt from the registration requirements of the Securities Act, and (b) we have not offered or sold any Series 2004-1 Notes to, or solicited offers to buy any Series 2004-1 Notes from, any person, or otherwise approached or negotiated with any person with respect thereto, in a manner that would be deemed, or taken any other action would result in, a violation of Section 5 of the Securities Act.
Very truly yours,

Print Name of Transferor

By:
 Authorized Officer
C-A-3-1
Exhibit 4.11
EXHIBIT A
FORM OF RESET RATE NOTES
THIS RESET RATE NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY UNITED STATES STATE SECURITIES OR "BLUE SKY" LAWS OR ANY SECURITIES LAWS OF ANY OTHER JURISDICTION, AND, AS A MATTER OF U.S. LAW, MAY NOT BE OFFERED OR SOLD IN VIOLATION OF THE SECURITIES ACT OR SUCH OTHER LAWS. THIS NOTE MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF NOT LESS THAN $100,000 AND ANY INTEGRAL MULTIPLE OF $1,000 IN EXCESS THEREOF. THE HOLDER HEREOF, BY PURCHASING OR ACCEPTING THIS RESET RATE NOTE IS HEREBY DEEMED TO HAVE AGREED FOR THE BENEFIT OF THE ISSUER AND THE INITIAL PURCHASERS THAT IT WILL RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE, AS A MATTER OF U.S. LAW, ONLY (A)(1) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE, PURSUANT TO RULE 144A PROMULGATED UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN RULE 144A (A "QUALIFIED INSTITUTIONAL BUYER"), THAT IS ACQUIRING THIS RESET RATE NOTE FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO A PERSON WHO IS NOT A U.S. PERSON (AS DEFINED IN REGULATION S PROMULGATED UNDER THE SECURITIES ACT ) OUTSIDE THE UNITED STATES OF AMERICA ACQUIRING THIS RESET RATE NOTE IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S PROMULGATED UNDER THE SECURITIES ACT OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY UNITED STATES STATE SECURITIES OR "BLUE SKY" LAWS OR ANY SECURITIES LAWS OF ANY OTHER JURISDICTION.
UPON ACQUISITION OR TRANSFER OF A RESET RATE NOTE OR A BENEFICIAL INTEREST IN A RESET RATE NOTE, AS THE CASE MAY BE, BY, FOR OR WITH THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (A "PLAN"), SUCH RESET RATE NOTE OWNER SHALL BE DEEMED TO HAVE REPRESENTED THAT SUCH ACQUISITION OR PURCHASE WILL NOT CONSTITUTE OR OTHERWISE RESULT IN: (I) IN THE CASE OF A PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A NON-EXEMPT PROHIBITED TRANSACTION IN VIOLATION OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WHICH IS NOT
A-1
Exhibit 4.11
COVERED BY A CLASS OR OTHER APPLICABLE EXEMPTION AND (II) IN THE CASE OF A PLAN SUBJECT TO A SUBSTANTIALLY SIMILAR FEDERAL, STATE, LOCAL OR FOREIGN LAW ("SIMILAR LAW"), A NON-EXEMPT VIOLATION OF SUCH SUBSTANTIALLY SIMILAR LAW. ANY TRANSFER FOUND TO HAVE BEEN MADE IN VIOLATION OF SUCH DEEMED REPRESENTATION SHALL BE NULL AND VOID AND OF NO EFFECT.
THIS RESET RATE NOTE AND RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES UNDERTAKEN OR REPRESENTED BY THE HOLDER, FOR RESALES AND OTHER TRANSFERS OF THIS RESET RATE NOTE, TO REFLECT ANY CHANGE IN APPLICABLE LAWS OR REGULATIONS (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO RESALES OR OTHER TRANSFERS OF RESTRICTED
SECURITIES GENERALLY. THE HOLDER OF THIS NOTE AND ANY BENEFICIAL OWNER OF ANY INTEREST THEREIN SHALL BE DEEMED, BY ITS ACCEPTANCE OR PURCHASE HEREOF, TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT (EACH OF WHICH SHALL BE CONCLUSIVE AND BINDING ON THE HOLDER HEREOF AND ALL FUTURE HOLDERS OF THIS RESET RATE NOTE AND ANY RESET RATE NOTE ISSUED IN EXCHANGE OR SUBSTITUTION HEREFOR, WHETHER OR NOT ANY NOTATION THEREOF IS MADE HEREON) AND AGREES TO TRANSFER THIS RESET RATE NOTE ONLY IN ACCORDANCE WITH ANY SUCH AMENDMENT OR SUPPLEMENT IN ACCORDANCE WITH APPLICABLE LAW IN EFFECT AT THE DATE OF SUCH TRANSFER.
NELNET EDUCATION LOAN FUNDING, INC.
STUDENT LOAN ASSET-BACKED NOTE
SENIOR CLASS 2004A[-1A][A-1B][-2][-3]
RESET RATE NOTES
REGISTERED NO. R-__ REGISTERED $________________

           Maturity Date                 Interest Rate           Original Issue Date               CUSIP No.

Quarterly Distribution Date in ____         Variable              January 30, 2004                 _________	

PRINCIPAL SUM: _______________________________________ AND 00/100 DOLLARS
REGISTERED OWNER: CEDE & CO.
NELNET EDUCATION LOAN FUNDING, INC., a corporation organized under the corporation laws of the State of Nebraska (the "Issuer," which term includes any successor corporation under the Indenture of Trust, dated as of January 1, 2004 (the "Indenture"), among the Issuer, Wells Fargo Bank Minnesota, National Association, as eligible lender trustee, and Wells Fargo Bank Minnesota, National Association, as trustee (the "Indenture Trustee," which
A-2
Exhibit 4.11
term includes any successor trustee under the Indenture)) for value received, hereby promises to pay to the Registered Owner (stated above) or registered assigns, the Principal Sum hereof (payable on each Distribution Date in an amount equal to the result obtained by multiplying (i) a fraction the numerator of which is the Principal Sum hereof (as modified by Annex 2 attached hereto) and denominator of which is $__________ by (ii) the aggregate amount, if any, payable on the Class A[-1A][-1B][-2][-3] Notes on such Quarterly Distribution Date in accordance with the Indenture), but solely from the revenues and receipts hereinafter specified and not otherwise, on the Maturity Date specified above (subject to the right of prior redemption hereinafter described), at the designated corporate trust office of the Indenture Trustee, as paying agent, trustee, authenticating agent and registrar for the Series 2004-1 Notes, or a duly appointed successor paying agent, and to pay interest in arrears on said Principal Sum, but solely from the revenues and receipts hereinafter specified and not otherwise, to the Registered Owner hereof from the most recent Quarterly Distribution Date to which interest has been paid hereon, until the payment of said principal sum in full.
Any capitalized words and terms used as defined words and terms in this note and not otherwise defined herein shall have the meanings given them in the Indenture.
The Issuer shall pay interest on this note at the rate set forth in Annex 1, on each Quarterly Distribution Date until the principal of this note is paid or made available for payment, on the principal amount of this note outstanding on the preceding Quarterly Distribution Date (after giving effect to all payments of principal made on the preceding Quarterly Distribution Date). Interest on this note shall accrue from and including the preceding Quarterly Distribution Date (or, in the case of the first Accrual Period, the Closing Date) to but excluding the following Quarterly Distribution Date (each an "Accrual Period") as set forth in Annex 1.
The principal of and interest on this note are payable in lawful money of the United States of America. If the specified date for any payment of principal or interest accrued to such specified date shall be a day other than a Business Day then such payment may be made on the next succeeding Business Day, with the same force and effect as if made on the specified date for such payment without additional interest.
Principal of the Class A[-1A][-1B][-2][-3] Notes shall be allocable on each Quarterly Distribution Date and payable as set forth in Annex 1 to the extent moneys have been allocated therefor pursuant to the Indenture and as set froth in Annex 1. "Distribution Date" means the 25th day of each February, May, August and November , commencing August 25, 2004, or, if any such date is not a Business Day, the next succeeding Business Day.
If during any Reset Period (including the initial Reset Period) the Class A[-1A][-1B][-2][-3] Notes constitute Non-Amortizing Reset Rate Notes (as defined in the Indenture and as set forh), the registered owners of the Class A[-1A][-1B][-2][-3] Notes will not be paid principal on any related Quarterly Distribution Date when principal is allocated to the Class A[-1A][-1B][-2][-3] Notes. All such allocated principal will be deposited into the related Class A[-1A][-1B][-2][-3] Redemption Account for payment on the Class A[-1A][-1B][-2][-3] Notes, generally, on the next related Reset Date in accordance with the procedures set forth in Appendix A to the Indenture. All principal payments on the Class A[-1A][-1B][-2][-3] Notes shall be made pro rata to the registered owners thereof.
A-3
Exhibit 4.11
Interest on the Class A[-1A][-1B][-2][-3] Notes shall be payable on each Quarterly Distribution Date on the principal amount outstanding of the Class A[-1A][-1B][-2][-3] Notes until the principal amount thereof is paid in full, at a rate per annum equal to the Class A[-1A][-1B][-2][-3] Notes Interest Rate. The Class A[-1A][-1B][-2][-3] Notes Interest Rate will be reset on each related Reset Date set forth in Annex 1 in accordance with the provisions of Appendix A to the Indenture. The initial Reset Date for the Class A[-1A][-1B][-2][-3] Notes is the Quarterly Distribution Date in __________ of ____. [The "Class A[-1A][-2][-3] Notes Interest Rate" for each Accrual Period during the initial Reset Period, shall be equal to an annual rate of Three-Month LIBOR + ____%, calculated on the basis of the actual number of days elapsed and a 360 day year.] [The "Class A-1B Notes Interest Rate" for each Accrual Period during the initial Reset Period, shall be equal to an annual rate of ____%, calculated on the basis of a 360 day year consisting of twelve 30-day months.]
On each Reset Date for the Class A[-1A][-1B][-2][-3] Notes, the Indenture Trustee, in its capacity as DTC Custodian, will attach (or will send to the Registered Owner of this note if not then held in book-entry form) a revised Annex 1 setting forth the reset terms of this note and copies of the related Remarketing Terms Notice and Spread Determination Notice, which shall be considered an integral part of this note applicable during the related Reset Period.
This note is one of a class of notes of the Issuer designated Student Loan Asset-Backed Notes, Senior Class A[-1A][-1B][-2][-3] Reset Rate Notes, dated the Original Issue Date, in the aggregate original principal amount of $_______________ (the "Class A[-1A][-1B][-2][-3] Notes") which have been authorized by the Issuer under a certain resolution, and issued by the Issuer pursuant to the Indenture. The Issuer is, simultaneously with the Class A[-1A][-1B][-2][-3] Notes, issuing $_______________ of its Student Loan Asset-Backed Notes, Senior Class 2004A[-1A][-1B][-2][-3] Notes (together with the Class A[-1A][-1B][-2][-3] Notes, the "Class A Notes") and $30,300,000 of its Student Loan Asset-Backed Notes, Subordinate Class 2004B Auction Rate Notes in 2 classes (the "Class B Notes," and together with the Class A Notes, the "Series 2004-1 Notes"). The proceeds of such notes have been used by the Issuer, together with other moneys of the Issuer, for the purpose of providing funds to finance the acquisition of student loans, fund a reserve fund and to pay certain costs and expenses in connection with such notes.
Optional and Mandatory Principal Reduction Payments and Extraordinary Redemption. This note is subject to optional and mandatory redemption, mandatory Principal Reduction Payments and extraordinary redemption, all as described in the Indenture.
Notice of Redemption or Principal Reduction Payments. All Series 2004-1 Notes called for redemption will cease to bear interest after the specified redemption or purchase date, provided funds for their payment are on deposit at the place of payment at the time. Preferably five, but not less than two Business Days prior to each Quarterly Distribution Date on which Principal Reduction Payments will be made on the Class A Notes or on which the Reset Rate Notes are to be redeemed, the Indenture Trustee shall cause notice of any Principal Reduction Payments or redemption to be given by mailing a copy of the notice by first class mail to the Administrator and registered owners of the Class of the Class A Notes designated for reduction or redemption in whole or in part, at their address as the same shall last appear upon the registration books on such date; provided, however, that failure to give such notice, or any defect
A-4
Exhibit 4.11
therein, shall not affect the validity of any proceedings for the reduction or redemption of such Class A Notes.
In addition, preferably five, but not less than two Business Days prior to each Quarterly Distribution Date, the Indenture Trustee shall send the Securities Depository written notice with respect to the dollar amount per $1,000 original principal amount of the Class of the Class A Notes that the Indenture Trustee will be paying to the Securities Depository on the Quarterly Distribution Date. The Indenture Trustee may, to the extent necessary to avoid payments of fractional cents, reduce scheduled payments by up to $1,000 for each Class.
The Indenture provides that the Issuer may enter into a derivative product (a "Derivative Product") between the Issuer and a derivative provider (a "Counterparty"), as originally executed and as amended or supplemented, or other interest rate hedge agreement between the Issuer and a Counterparty, as originally executed and as amended or supplemented. Payments due to a Counterparty from the Issuer pursuant to the applicable Derivative Product are referred to herein as "Issuer Derivative Payments," and may be paid on a parity with interest on any class of Series 2004-1 Notes.
The principal of and interest on the Class A Notes and any Issuer Derivative Payments which are paid on a parity with interest on the Class A Notes are payable on a superior basis to such payments on the Class B Notes and any Issuer Derivative Payments which are paid on a parity with interest on the Class B Notes; provided, however, that current principal and interest may be paid on the Class B Notes and any Issuer Derivative Payments which are paid on a parity with interest on the Class B Notes if all principal and interest payments due and owing at such time on the Class A Notes and any Issuer Derivative Payments which are paid on a parity with interest on the Class A Notes have been previously made or provided for as provided in the Indenture. Principal allocated to pay the Class A Notes will be use to provide for payment, on a pro rata basis, of the Class A-1A and Class A-1B notes, then to provide for payment of the Class A-2 notes and then to provide for payment of the Class A-3 notes
Reference is hereby made to the Indenture, copies of which are on file at the designated corporate trust office of the Indenture Trustee, and to all of the provisions of which any Registered Owner of this note by his acceptance hereof hereby assents, for definitions of terms; the description of and the nature and extent of the security for the Series 2004-1 Notes; the Issuer's student loan origination and acquisition program; the revenues and other money pledged to the payment of the principal of and interest on the Series 2004-1 Notes; the nature and extent and manner of enforcement of the pledge; the conditions upon which the Indenture may be amended or supplemented with or without the consent of the Registered Owners of the Series 2004-1 Notes and any Counterparty; the rights and remedies of the Registered Owner hereof with respect hereto and thereto, including the limitations upon the right of a Registered Owner hereof to institute any suit, action, or proceeding in equity or at law with respect hereto and thereto; the rights, duties, and obligations of the Issuer and the Indenture Trustee thereunder; the terms and provisions upon which the liens, pledges, charges, trusts, and covenants made therein may be discharged at or prior to the stated maturity or earlier redemption of this note, and this note thereafter shall no longer be secured by the Indenture or be deemed to be Outstanding, as defined in the Indenture, thereunder; and for the other terms and provisions thereof.
A-5
Exhibit 4.11
THE NOTES ARE LIMITED OBLIGATIONS OF THE ISSUER, PAYABLE SOLELY FROM,
AND FURTHER SECURED BY, THE TRUST ESTATE, AS DEFINED IN THE INDENTURE.
No recourse, either directly or indirectly, shall be had for the payment of the principal of and interest on this note or any claim based hereon or in respect hereof or of the Indenture, against the Indenture Trustee, or any incorporator, director, officer, employee, or agent of the Issuer, nor against the State of Nebraska, or any official thereof, but the obligation to pay all amounts required by the Indenture securing this note and the obligation to do and perform the covenants and acts required of the Issuer therein and herein shall be and remain the responsibility and obligation of said Issuer, limited as herein set forth.
Subject to the restrictions specified in the Indenture, this note is transferable on the note register kept for that purpose by the Indenture Trustee, as registrar, upon surrender of this note for transfer at the designated corporate trust office of the Indenture Trustee, duly endorsed by, or accompanied by a written instrument of transfer, including Annex 1 and Annex 3 to Appendix C to the Indenture, in form satisfactory to the Indenture Trustee duly executed by, the Registered Owner hereof or his attorney duly authorized in writing, and thereupon one or more new Series 2004-1 Notes of the same class, Stated Maturity, of authorized denominations, bearing interest at the same rate, and for the same aggregate principal amount will be issued to the designated transferee or transferees. At the option of the Registered Owner, any Series 2004-1 Note may be exchanged for other Series 2004-1 Notes in authorized denominations upon surrender of the Series 2004-1 Note to be exchanged at the designated corporate trust office of the Indenture Trustee. Upon any such presentation for exchange, one or more new Series 2004-1 Notes of the same class, Stated Maturity, in authorized denominations, bearing interest at the same rate, and for the same aggregate principal amount as the Series 2004-1 Note or Series 2004-1 Notes so surrendered will be issued to the Registered Owner of the Series 2004-1 Note or Series 2004-1 Notes so surrendered; and the Series 2004-1 Note or Series 2004-1 Notes so surrendered shall thereupon be cancelled by the Indenture Trustee.
The Class A[-1A][-1B][-2][-3] Notes have not been registered or qualified under the Securities Act of 1933, as amended (the "Securities Act"), or any state securities law. No transfer, sale, pledge or other disposition of any Class A[-1A][-1B][-2][-3] Note, or any interest therein, shall be made unless the transfer is made pursuant to an effective registration statement under the Securities Act, or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. In the event that a transfer is made without registration or qualification, the Indenture Trustee shall require, in order to assure compliance with such laws, that the prospective transferor and transferee each certify to the Administrator and the Indenture Trustee in writing the facts surrounding the transfer. Such certifications shall be substantially in the forms of Annex 1 and Annex 3 to Appendix C to the Indenture. Such certifications shall be deemed to have been made by the transferor and transferee with respect to any transfer of an interest in a Class A[-1A][-1B][-2][-3] Note that is in book-entry form. None of the Issuer, the Administrator, the Eligible Lender Trustee or the Indenture Trustee is obligated to register or qualify the Class A[-1A][-1B][-2][-3] Notes under the Securities Act or any other securities law or to take any action not otherwise required under the Indenture to permit the transfer of Class A[-1A][-1B][-2][-3] Notes, or interests therein, without registration or qualification. Any registered owner of a Class A[-1A][-1B][-2][-3] Note
A-6
Exhibit 4.11
desiring to effect such transfer is hereby deemed to have indemnified the Issuer, the Administrator, the Eligible Lender Trustee and the Indenture Trustee against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal or state laws.
Notwithstanding the foregoing, so long as the ownership of the Series 2004-1 Notes is maintained in book-entry form by The Depository Trust Company (the "Securities Depository") or a nominee thereof, this note may be transferred in whole but not in part only to the Securities Depository or a nominee thereof or to a successor Securities Depository or its nominee.
The Issuer, the Indenture Trustee, and any agent of either of them shall treat the Person in whose name this note is registered as the Registered Owner hereof (a) on the record date for purposes of receiving timely payment of interest hereon, and (b) on the date of surrender of this note for purposes of receiving payment of principal hereof at its stated maturity and (c) for all other purposes, whether or not this note is overdue, and none of the Issuer, the Indenture Trustee, or any such agent shall be affected by notice to the contrary.
To the extent permitted by the Indenture, modifications or alterations of the Indenture and any supplemental indenture may be made with the consent of less than all of the Registered Owners of the Series 2004-1 Notes then outstanding or without the consent of any of such Registered Owners (by reason of a change in the Higher Education Act or Regulation or to cure ambiguities or conflicts), but such modification or alteration is not permitted to affect the maturity date, Stated Maturity, amount, Quarterly Distribution Date, or rate of interest on any outstanding Series 2004-1 Notes or affect the rights of the Registered Owners of less than all of the Series 2004-1 Notes outstanding.
The Registered Owner hereof shall not have the right to demand payment of this note or any interest hereon out of funds raised or to be raised by taxation.
Any capitalized term used herein and not otherwise defined herein shall have the same meaning ascribed to such term in the herein defined Indenture unless the context shall clearly indicate otherwise.
It is hereby certified and recited that all acts and things required by the laws of the State of Nebraska to happen, exist, and be performed precedent to and in the issuance of this note, and the passage of said resolution and the execution of said Indenture, have happened, exist and have been performed as so required.
A-7
Exhibit 4.11
IN TESTIMONY WHEREOF, the Board of Directors of NELNET EDUCATION LOAN FUNDING, INC. has caused this note to be executed by the manual or facsimile signatures of the President and Secretary of the Issuer all as of the Original Issue Date.
NELNET EDUCATION LOAN FUNDING, INC.
By
 President

By
 Secretary

A-8
Exhibit 4.11
CERTIFICATE OF AUTHENTICATION
This note is one of the Class 2004A[-1A][-1B][-2][-3] Notes designated therein and described in the within-mentioned Indenture.
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Indenture Trustee
By
 Authorized Signatory
Authentication Date:

A-9
Exhibit 4.11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto __________ (Social Security or other identifying number __________) the within note and all rights thereunder and hereby irrevocably appoints __________ attorney to transfer the within note on the books kept for registration thereof, with full power of substitution in the premises.

Dated:                              SIGNED:
       ---------------------               -------------------------------------
                                    NOTICE:  The  signature  on this  Assignment	

must correspond with the name of the Registered Owner as it appears on the face of the within note in every particular.
Signature Guaranteed by:

Signature(s) must be
guaranteed by an eligible
guarantor institution pursuant
to Securities and Exchange
Commission Rule 17Ad-15 that
is a participant in a
signature guarantor program
recognized by the Indenture
Trustee

A-10
Exhibit 4.11
ANNEX 1
REMARKETING TERMS NOTICE AND
SPREAD DETERMINATION NOTICE
A-11
 
Exhibit 4.11
ANNEX 2
SCHEDULE OF EXCHANGES IN GLOBAL NOTE
The following exchanges of a part of this Global Certificate have been made:

---------------- -------------------------- ------------------------ -------------------------- ----------------------
                                                                     Principal  Amount of this
                   Amount of Decrease in     Amount of Increase in      Global Certificate          Signature of
    Date of      Principal Amount of this     Principal Amount of     following such Decrease     Authorized Officer
   Exchange         Global Certificate       this Global Certificate      (or Increase)          of Indenture Trustee
---------------- -------------------------- ------------------------ -------------------------- ----------------------	

A-12
Exhibit 4.11
EXHIBIT B
FORM OF AUCTION RATE NOTES
THIS AUCTION RATE NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY UNITED STATES STATE SECURITIES OR "BLUE SKY" LAWS OR ANY SECURITIES LAWS OF ANY OTHER JURISDICTION, AND, AS A MATTER OF U.S. LAW, MAY NOT BE OFFERED OR SOLD IN VIOLATION OF THE SECURITIES ACT OR SUCH OTHER LAWS. THIS NOTE MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF NOT LESS THAN $50,000 AND ANY INTEGRAL MULTIPLE THEREOF. THE HOLDER HEREOF, BY PURCHASING OR ACCEPTING THIS AUCTION RATE NOTE IS HEREBY DEEMED TO HAVE AGREED FOR THE BENEFIT OF THE ISSUER AND THE INITIAL PURCHASERS THAT IT WILL RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE, AS A MATTER OF U.S. LAW, ONLY (A)(1) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE, PURSUANT TO RULE 144A PROMULGATED UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN RULE 144A (A "QUALIFIED INSTITUTIONAL BUYER"), THAT IS ACQUIRING THIS AUCTION RATE NOTE FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY UNITED STATES STATE SECURITIES OR "BLUE SKY" LAWS OR ANY SECURITIES LAWS OF ANY OTHER JURISDICTION.
UPON ACQUISITION OR TRANSFER OF AN AUCTION RATE NOTE OR A BENEFICIAL INTEREST IN AN AUCTION RATE NOTE, AS THE CASE MAY BE, BY, FOR OR WITH THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (A "PLAN"), SUCH AUCTION RATE NOTE OWNER SHALL BE DEEMED TO HAVE REPRESENTED THAT SUCH ACQUISITION OR PURCHASE WILL NOT CONSTITUTE OR OTHERWISE RESULT IN: (I) IN THE CASE OF A PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A NON-EXEMPT PROHIBITED TRANSACTION IN VIOLATION OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WHICH IS NOT COVERED BY A CLASS OR OTHER APPLICABLE EXEMPTION AND (II) IN THE CASE OF A PLAN SUBJECT TO A SUBSTANTIALLY SIMILAR FEDERAL, STATE, LOCAL OR FOREIGN LAW ("SIMILAR LAW"), A NON-EXEMPT VIOLATION OF SUCH SUBSTANTIALLY SIMILAR LAW. ANY
Exhibit 4.11
TRANSFER FOUND TO HAVE BEEN MADE IN VIOLATION OF SUCH DEEMED
REPRESENTATION SHALL BE NULL AND VOID AND OF NO EFFECT.
THIS AUCTION RATE NOTE AND RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES UNDERTAKEN OR REPRESENTED BY THE HOLDER, FOR RESALES AND OTHER TRANSFERS OF THIS AUCTION RATE NOTE, TO REFLECT ANY CHANGE IN APPLICABLE LAWS OR REGULATIONS (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO RESALES OR OTHER TRANSFERS OF RESTRICTED
SECURITIES GENERALLY. THE HOLDER OF THIS NOTE AND ANY BENEFICIAL OWNER OF ANY INTEREST THEREIN SHALL BE DEEMED, BY ITS ACCEPTANCE OR PURCHASE HEREOF, TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT (EACH OF WHICH SHALL BE CONCLUSIVE AND BINDING ON THE HOLDER HEREOF AND ALL FUTURE HOLDERS OF THIS AUCTION RATE NOTE AND ANY AUCTION RATE NOTE ISSUED IN EXCHANGE OR SUBSTITUTION HEREFOR, WHETHER OR NOT ANY NOTATION THEREOF IS MADE HEREON) AND AGREES TO TRANSFER THIS AUCTION RATE NOTE ONLY IN ACCORDANCE WITH ANY SUCH AMENDMENT OR SUPPLEMENT IN ACCORDANCE WITH APPLICABLE LAW IN EFFECT AT THE DATE OF SUCH TRANSFER.
NELNET EDUCATION LOAN FUNDING, INC.
STUDENT LOAN ASSET-BACKED NOTE
SUBORDINATE CLASS 2004B[-1][-2]
AUCTION RATE NOTES
REGISTERED NO. R-__ REGISTERED $15,150,000

  Maturity Date                  Interest Rate             Original Issue Date               CUSIP No.

February 25, 2036                  Variable                 January 30, 2004                 _________	

PRINCIPAL SUM: **FIFTEEN MILLION ONE HUNDRED AND FIFTY THOUSAND AND 00/100 DOLLARS**
REGISTERED OWNER: CEDE & CO.
NELNET EDUCATION LOAN FUNDING, INC., a corporation organized under the corporation laws of the State of Nebraska (the "Issuer," which term includes any successor corporation under the Indenture of Trust, dated as of January 1, 2004 (the "Indenture"), among the Issuer, Wells Fargo Bank Minnesota, National Association, as eligible lender trustee, and Wells Fargo Bank Minnesota, National Association, as trustee (the "Indenture Trustee," which term includes any successor trustee under the Indenture)) for value received, hereby promises to pay to the Registered Owner (stated above) or registered assigns, the Principal Sum (stated above), but solely from the revenues and receipts hereinafter specified and not otherwise, on the Maturity Date specified above (subject to the right of prior redemption hereinafter described),
B-2
Exhibit 4.11
upon presentation and surrender of this note at the designated corporate trust office of the Indenture Trustee, as paying agent, trustee, authenticating agent and registrar for the Series 2004-1 Notes, or a duly appointed successor paying agent, and to pay interest in arrears on said Principal Sum, but solely from the revenues and receipts hereinafter specified and not otherwise, to the Registered Owner hereof from the most recent Auction Rate Distribution Date to which interest has been paid hereon, until the payment of said principal sum in full.
Any capitalized words and terms used as defined words and terms in this note and not otherwise defined herein shall have the meanings given them in the Indenture.
This note shall bear interest at an Auction Rate, all as determined in Appendix B to the Indenture.
The principal of and interest on this note are payable in lawful money of the United States of America. If the specified date for any payment of principal or interest accrued to such specified date shall be a day other than a Business Day then such payment may be made on the next succeeding Business Day, with the same force and effect as if made on the specified date for such payment without additional interest.
Interest payable on this note shall be computed on the assumption that each year contains 360 days and actual days elapsed.
This note is one of a class of notes of the Issuer designated Student Loan Asset-Backed Notes, Subordinate Class 2004B[-1][-2] Auction Rate Notes, dated the Original Issue Date, in the aggregate original principal amount of $15,150,000 (the "Class B[-1][-2] Notes") which have been authorized by the Issuer under a certain resolution, and issued by the Issuer pursuant to the Indenture. The Issuer is, simultaneously with the Class B[-1][-2] Notes, issuing $15,150,000 of its Student Loan Asset-Backed Notes, Subordinate Class 2004B[-1][-2] Auction Rate Notes (the "Class B[-1][-2] Notes, and together with the Class B[-1][-2] Notes, the "Class B Notes") and $979,700,000 of its Student Loan Asset-Backed Notes, Senior Class 2004A Reset Rate Notes in 4 classes (collectively, the "Class A Notes," and together with the Class B Notes, the "Series 2004-1 Notes"). The proceeds of such notes have been used by the Issuer, together with other moneys of the Issuer, for the purpose of providing funds to finance the acquisition of student loans, fund a reserve fund and to pay certain costs and expenses in connection with such notes.
Optional, Mandatory and Extraordinary Redemption. This note is subject to optional, mandatory and extraordinary redemption, all as described in the Indenture.
Notice of Redemption. Notice of the call for redemption shall be given by the Indenture Trustee by mailing a copy of the notice at least 10 days prior to the redemption date to the Registered Owners of the Class B Notes to be redeemed in whole or in part at the address of such Registered Owner last showing on the registration books. Failure to give such notice or any defect therein shall not affect the validity of any proceedings for the redemption of such Class B Notes for which no such failure or defect occurs. All Class B Notes called for redemption will cease to bear interest after the specified redemption date, provided funds for their payment are on
B-3
Exhibit 4.11
deposit at the place of payment at the time. If less than all Class B Notes are to be redeemed, Class B Notes shall be selected for redemption or purchase as provided in the Indenture.
The Indenture provides that the Issuer may enter into a derivative product (a "Derivative Product") between the Issuer and a derivative provider (a "Counterparty"), as originally executed and as amended or supplemented, or other interest rate hedge agreement between the Issuer and a Counterparty, as originally executed and as amended or supplemented. Payments due to a Counterparty from the Issuer pursuant to the applicable Derivative Product are referred to herein as "Issuer Derivative Payments," and may be paid on a parity with interest on any class of Series 2004-1 Notes.
The principal of and interest on the Class A Notes and any Issuer Derivative Payments which are paid on a parity with interest on the Class A Notes are payable on a superior basis to such payments on the Class B Notes and any Issuer Derivative Payments which are paid on a parity with interest on the Class B Notes; provided, however, that current principal and interest may be paid on the Class B Notes and any Issuer Derivative Payments which are paid on a parity with interest on the Class B Notes if all principal and interest payments due and owing at such time on the Class A Notes and any Issuer Derivative Payments which are paid on a parity with interest on the Class A Notes have been previously made or provided for as provided in the Indenture. Except as provided in the Indenture, principal allocated to pay the Series 2004-1 Notes will be use to provide for payment, on a pro rata basis, of the Class A-1A and Class A-1B notes, then to provide for payment of the Class A-2 notes, then to provide for payment of the Class A-3 notes and then to provide for payment, on a pro rata basis, of the Class B notes.
Reference is hereby made to the Indenture, copies of which are on file at the designated corporate trust office of the Indenture Trustee, and to all of the provisions of which any Registered Owner of this note by his acceptance hereof hereby assents, for definitions of terms; the description of and the nature and extent of the security for the Series 2004-1 Notes; the Issuer's student loan origination and acquisition program; the revenues and other money pledged to the payment of the principal of and interest on the Series 2004-1 Notes; the nature and extent and manner of enforcement of the pledge; the conditions upon which the Indenture may be amended or supplemented with or without the consent of the Registered Owners of the Series 2004-1 Notes and any Counterparty; the rights and remedies of the Registered Owner hereof with respect hereto and thereto, including the limitations upon the right of a Registered Owner hereof to institute any suit, action, or proceeding in equity or at law with respect hereto and thereto; the rights, duties, and obligations of the Issuer and the Indenture Trustee thereunder; the terms and provisions upon which the liens, pledges, charges, trusts, and covenants made therein may be discharged at or prior to the stated maturity or earlier redemption of this note, and this note thereafter shall no longer be secured by the Indenture or be deemed to be Outstanding, as defined in the Indenture, thereunder; and for the other terms and provisions thereof.
THE NOTES ARE LIMITED OBLIGATIONS OF THE ISSUER, PAYABLE SOLELY FROM,
AND FURTHER SECURED BY, THE TRUST ESTATE, AS DEFINED IN THE INDENTURE.
No recourse, either directly or indirectly, shall be had for the payment of the principal of and interest on this note or any claim based hereon or in respect hereof or of the Indenture,
B-4
Exhibit 4.11
against the Indenture Trustee, or any incorporator, director, officer, employee, or agent of the Issuer, nor against the State of Nebraska, or any official thereof, but the obligation to pay all amounts required by the Indenture securing this note and the obligation to do and perform the covenants and acts required of the Issuer therein and herein shall be and remain the responsibility and obligation of said Issuer, limited as herein set forth.
Subject to the restrictions specified in the Indenture, this note is transferable on the note register kept for that purpose by the Indenture Trustee, as registrar, upon surrender of this note for transfer at the designated corporate trust office of the Indenture Trustee, duly endorsed by, or accompanied by a written instrument of transfer, including Annex 1 and Annex 3 to Appendix C to the Indenture, in form satisfactory to the Indenture Trustee duly executed by, the Registered Owner hereof or his attorney duly authorized in writing, and thereupon one or more new Series 2004-1 Notes of the same class, Stated Maturity, of authorized denominations, bearing interest at the same rate, and for the same aggregate principal amount will be issued to the designated transferee or transferees. At the option of the Registered Owner, any Series 2004-1 Note may be exchanged for other Series 2004-1 Notes in authorized denominations upon surrender of the Series 2004-1 Note to be exchanged at the designated corporate trust office of the Indenture Trustee. Upon any such presentation for exchange, one or more new Series 2004-1 Notes of the same class, Stated Maturity, in authorized denominations, bearing interest at the same rate, and for the same aggregate principal amount as the Series 2004-1 Note or Series 2004-1 Notes so surrendered will be issued to the Registered Owner of the Series 2004-1 Note or Series 2004-1 Notes so surrendered; and the Series 2004-1 Note or Series 2004-1 Notes so surrendered shall thereupon be cancelled by the Indenture Trustee.
The Class B Notes have not been registered or qualified under Securities Act of 1933, as amended (the "Securities Act"), or any state securities law. No transfer, sale, pledge or other disposition of any Class B Note, or any interest therein, shall be made unless the transfer is made pursuant to an effective registration statement under the Securities Act, or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. In the event that a transfer is made without registration or qualification, the Indenture Trustee shall require, in order to assure compliance with such laws, that the prospective transferor and transferee each certify to the Administrator and the Indenture Trustee in writing the facts surrounding the transfer. Such certifications shall be substantially in the forms of Annex 1 and Annex 3 to Appendix C to the Indenture. Such certifications shall be deemed to have been made by the transferor and transferee with respect to any transfer of an interest in a Class B Note that is in book-entry form. None of the Issuer, the Administrator, the Eligible Lender Trustee or the Indenture Trustee is obligated to register or qualify the Class B Notes under the Securities Act or any other securities law or to take any action not otherwise required under the Indenture to permit the transfer of Class B Notes, or interests therein, without registration or qualification. Any registered owner of a Class B Note desiring to effect such transfer is hereby deemed to have indemnified the Issuer, the Administrator, the Eligible Lender Trustee and the Indenture Trustee against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal or state laws.
Notwithstanding the foregoing, so long as the ownership of the Series 2004-1 Notes is maintained in book-entry form by The Depository Trust Company
(the "Securities Depository")
B-5
Exhibit 4.11
or a nominee thereof, this note may be transferred in whole but not in part only to the Securities Depository or a nominee thereof or to a successor Securities Depository or its nominee.
The Issuer, the Indenture Trustee, and any agent of either of them shall treat the Person in whose name this note is registered as the Registered Owner hereof (a) on the record date for purposes of receiving timely payment of interest hereon, and (b) on the date of surrender of this note for purposes of receiving payment of principal hereof at its stated maturity and (c) for all other purposes, whether or not this note is overdue, and none of the Issuer, the Indenture Trustee, or any such agent shall be affected by notice to the contrary.
To the extent permitted by the Indenture, modifications or alterations of the Indenture and any supplemental indenture may be made with the consent of less than all of the Registered Owners of the Series 2004-1 Notes then outstanding or without the consent of any of such Registered Owners (by reason of a change in the Higher Education Act or Regulation or to cure ambiguities or conflicts), but such modification or alteration is not permitted to affect the maturity date, Stated Maturity, amount, Auction Rate Distribution Date, or rate of interest on any outstanding Series 2004-1 Notes or affect the rights of the Registered Owners of less than all of the Series 2004-1 Notes outstanding.
The Registered Owner hereof shall not have the right to demand payment of this note or any interest hereon out of funds raised or to be raised by taxation.
Any capitalized term used herein and not otherwise defined herein shall have the same meaning ascribed to such term in the herein defined Indenture unless the context shall clearly indicate otherwise.
It is hereby certified and recited that all acts and things required by the laws of the State of Nebraska to happen, exist, and be performed precedent to and in the issuance of this note, and the passage of said resolution and the execution of said Indenture, have happened, exist and have been performed as so required.
B-6
Exhibit 4.11
IN TESTIMONY WHEREOF, the Board of Directors of NELNET EDUCATION LOAN FUNDING, INC. has caused this note to be executed by the manual or facsimile signatures of the President and Secretary of the Issuer all as of the Original Issue Date.
NELNET EDUCATION LOAN FUNDING, INC.
By
 President

By
 Secretary

B-7
Exhibit 4.11
CERTIFICATE OF AUTHENTICATION
This note is one of the Series 2004B[-1][-2] Notes designated therein and described in the within-mentioned Indenture.
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Indenture Trustee
By
 Authorized Signatory
Authentication Date:

B-8
Exhibit 4.11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto __________ (Social Security or other identifying number __________) the within note and all rights thereunder and hereby irrevocably appoints __________ attorney to transfer the within note on the books kept for registration thereof, with full power of substitution in the premises.

Dated:                             SIGNED:
       -----------------------            --------------------------------------
                                   NOTICE: The signature on this Assignment must	

correspond with the name of the Registered Owner as it appears on the face of the within note in every particular.
Signature Guaranteed by:

Signature(s) must be
guaranteed by an eligible
guarantor institution pursuant
to Securities and Exchange
Commission Rule 17Ad-15 that
is a participant in a
signature guarantor program
recognized by the Indenture
Trustee

B-9
Exhibit 4.11
EXHIBIT C
NOTICE OF PAYMENT DEFAULT
NELNET EDUCATION LOAN FUNDING, INC.
STUDENT LOAN ASSET-BACKED NOTES
SUBORDINATE CLASS 2004B[-1][-2]
AUCTION RATE NOTES
NOTICE IS HEREBY GIVEN that a Payment Default has occurred and is continuing with respect to the Auction Rate Notes identified above. The next Auction for the Auction Rate Notes will not be held. The Auction Rate for the Auction Rate Notes for the next succeeding Accrual Period shall be the Non-Payment Rate.
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Indenture Trustee
Dated: _______________________ By _______________________________________
Exhibit 4.11
EXHIBIT D
NOTICE OF CURE OF PAYMENT DEFAULT
NELNET EDUCATION LOAN FUNDING, INC.
STUDENT LOAN ASSET-BACKED NOTES
SUBORDINATE CLASS 2004B[-1][-2]
AUCTION RATE NOTES
NOTICE IS HEREBY GIVEN that a Payment Default with respect to the Auction Rate Notes identified above has been waived or cured. The next Auction Rate Distribution Date is __________________________ and the Auction Date is __________________________.
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Indenture Trustee
Dated: ________________ By __________________________________________
Exhibit 4.11
EXHIBIT E
NOTICE OF PROPOSED CHANGE IN LENGTH
OF ONE OR MORE AUCTION PERIODS
NELNET EDUCATION LOAN FUNDING, INC.
STUDENT LOAN ASSET-BACKED NOTES
SUBORDINATE CLASS 2004B[-1][-2]
AUCTION RATE NOTES
Notice is hereby given that the Issuer proposes to change the length of one or more Auction Periods pursuant to the Indenture of Trust, as amended (the "Indenture") as follows:
1. The change shall take effect on _______________, the Interest Rate Adjustment Date for the next Auction Period (the "Effective Date").
2. The Auction Period Adjustment in Paragraph 1 shall take place only if (a) the Indenture Trustee and the Auction Agent receive, by 11:00 a.m., eastern time, on the Business Day before the Auction Date for the Auction Period commencing on the Effective Date, a certificate from the Issuer, as required by the Indenture authorizing the change in length of one or more Auction Periods and (b) Sufficient Bids exist on the Auction Date for the Auction Period commencing on the Effective Date.
3. If the condition referred to in (a) above is not met, the Auction Rate for the Auction Period commencing on the Effective Date will be determined pursuant to the Auction Procedures and the Auction Period shall be the Auction Period determined without reference to the proposed change. If the condition referred to in (a) is met but the condition referred to in (b) above is not met, the Auction Rate for the Auction Period commencing on the Effective Date shall be the Maximum Rate and the Auction Period shall be the Auction Period determined without reference to the proposed change.
4. It is hereby represented, upon advice of the Auction Agent for the Class 2004B[-1][-2] Notes described herein, that there were Sufficient Bids for such Class 2004B[-1][-2] Notes at the Auction immediately preceding the date of this Notice.
5. Terms not defined in this Notice shall have the meanings set forth in the Indenture entered into in connection with the Class 2004B[-1][-2] Notes.
NELNET EDUCATION LOAN FUNDING, INC.
Dated: __________________ By _________________________________
Exhibit 4.11
EXHIBIT F
NOTICE ESTABLISHING CHANGE IN LENGTH
OF ONE OR MORE AUCTION PERIODS
NELNET EDUCATION LOAN FUNDING, INC.
STUDENT LOAN ASSET-BACKED NOTES
SUBORDINATE CLASS 2004B[-1][-2]
AUCTION RATE NOTES
Notice is hereby given that the Issuer hereby establishes new lengths for one or more Auction Periods pursuant to the Indenture of Trust, as amended:
1. The change shall take effect on _______________, the Interest Rate Adjustment Date for the next Auction Period (the "Effective Date").
2. For the Auction Period commencing on the Effective Date, the Interest Rate Adjustment Date shall be _______________, or the next succeeding Business Day if such date is not a Business Day.
3. For Auction Periods occurring after the Auction Period commencing on the Effective Date, the Interest Rate Adjustment Date shall be
[_______________(date) and every ______________(number) ______________(day of week) thereafter] [every ______________(number) ______________(day of week) after the date set forth in paragraph 2 above], or the next Business Day if any such day is not a Business Day; provided, however, that the length of subsequent Auction Periods shall be subject to further change hereafter as provided in the Indenture of Trust.
4. The changes described in paragraphs 2 and 3 above shall take place only upon delivery of this Notice and the satisfaction of other conditions set forth in the Indenture of Trust and our prior notice dated _______________ regarding the proposed change.
5. Terms not defined in this Notice shall have the meanings set forth in the Indenture of Trust relating to the Class 2004B[-1][-2] Notes.
NELNET EDUCATION LOAN FUNDING, INC.
Dated: By

Exhibit 4.11
EXHIBIT G
NOTICE OF CHANGE IN AUCTION DATE
NELNET EDUCATION LOAN FUNDING, INC.
STUDENT LOAN ASSET-BACKED NOTES
SUBORDINATE CLASS 2004B[-1][-2]
AUCTION RATE NOTES
Notice is hereby given by [ ], as Broker-Dealer for the Auction Rate Notes, that with respect to the Auction Rate Notes, the Auction Date is hereby changed as follows:
1. With respect to Class 2004B[-1][-2] Notes, the definition of "Auction Date" shall be deemed amended by substituting "_______________(number) Business Day" in the second line thereof and by substituting "_______________(number) Business Days" for "two Business Days" in subsection
(d) thereof.
2. This change shall take effect on _______________ which shall be the Auction Date for the Auction Period commencing on _______________.
3. The Auction Date for the Class 2004B[-1][-2] Notes shall be subject to further change hereafter as provided in the Indenture of Trust.
4. Terms not defined in this Notice shall have the meaning set forth in the Indenture of Trust, as amended, relating to the Class 2004B[-1][-2] Notes.
[BROKER-DEALER], as Broker-Dealer
Dated: By

Exhibit 4.11
EXHIBIT H
ELIGIBLE LOAN ACQUISITION CERTIFICATE
This Eligible Loan Acquisition Certificate is submitted pursuant to the provisions of Section 5.02 of the Indenture of Trust, dated as of January 1, 2004, as amended (the "Indenture"), among Nelnet Student Loan Funding, Inc. (the "Issuer"), Wells Fargo Bank Minnesota, National Association, as indenture trustee (the "Indenture Trustee"), and Wells Fargo Bank Minnesota, National Association, as eligible lender trustee. All capitalized terms used in this Certificate and not otherwise defined herein shall have the same meanings given to such terms in the Indenture and the Student Loan Purchase Agreement. In your capacity as Indenture Trustee, you are hereby authorized and requested to disburse to _________________ (the "Lender") the sum of $____________ (or, in the case of an exchange, the Eligible Loans listed in Exhibit A hereto) for the acquisition of Eligible Loans. With respect to such Eligible Loans to be acquired, the Issuer hereby certifies as follows:
1. The Eligible Loans are those specified in Schedule A attached hereto (the "Acquired Eligible Loans"). The remaining unpaid principal amount of each Acquired Eligible Loan is as shown on such Schedule A.
2. The amount to be disbursed pursuant to this Certificate does not exceed the amount permitted by Section 5.02 of the Indenture (or, if a Financed Eligible Loan is being pledged or sold in exchange for an Acquired Eligible Loan under the Indenture, the aggregate unpaid principal amount of, and accrued interest on, such Financed Eligible Loan does not exceed the amount permitted by
Section 5.02 of the Indenture) and is being acquired at a price which permits the results of the cash flow analysis provided to each Rating Agency to be sustained.
3. Each Acquired Eligible Loan is an Eligible Loan authorized to be acquired by and is in compliance with the provisions of the Indenture.
4. You have been previously, or are herewith, provided with the following items (the items listed in paragraphs (a), (c), (d), (e), (g) and (h) have been received and are being retained, on your behalf, by the Issuer or a Servicer):
(a) a copy of the Student Loan Purchase Agreement, if applicable, between the Issuer and the Eligible Lender with respect to the Acquired Eligible Loans;
(b) a request for and release of lien from an eligible lender trustee and evidence of pledge to the Indenture, if applicable, as attached hereto as Annex A;
(c) with respect to each Insured Loan included among the Acquired Eligible Loans, the Certificate of Insurance relating thereto;
(d) with respect to each Guaranteed Loan included among the Acquired Eligible Loans, a certified copy of the Guarantee Agreement relating thereto;
H-1
Exhibit 4.11
(e) an opinion of counsel to the Issuer specifying each action necessary to perfect a security interest in all Eligible Loans to be acquired by the Issuer pursuant to the Student Loan Purchase Agreements in favor of the Indenture Trustee in the manner provided for by the provisions of 20 U.S.C. ss. 1087-2(d)(3) or 20 U.S.C. ss. 1082(m)(1)(D)(iv), as applicable, (you are authorized to rely on the advice of a single blanket opinion of counsel to the Issuer until such time as the Issuer shall provide any amended opinion to you);
(f) a certificate of an Authorized Representative of the Issuer to the effect that (i) the Issuer is not in default in the performance of any of its covenants and agreements made in the Student Loan Purchase Agreement relating to the Acquired Eligible Loans; (ii) with respect to all Acquired Eligible Loans which are Insured, Insurance is in effect with respect thereto, and with respect to all Acquired Eligible Loans which are Guaranteed, the corresponding Guarantee Agreement is in effect with respect thereto; (iii) the Issuer is not in default in the performance of any of its covenants and agreements made in any Contract of Insurance or the Guarantee Agreement applicable to the Acquired Eligible Loans; (iv) the acquisition of the Acquired Eligible Loans does not contravene the provisions of Section 5.02 of the Indenture; and (v) the purchase price paid for the Acquired Eligible Loans is reasonably equal to the fair market value of such Acquired Eligible Loans.
(g) evidence that the promissory notes evidencing the Acquired Eligible Loans have had stamped thereon or affixed thereto (individually or by blanket endorsement) a notice specifying that they have been assigned to the Indenture Trustee with all necessary endorsements; and
(h) instruments duly assigning the Acquired Eligible Loans to the Indenture Trustee.
5. The Issuer is not, on the date hereof, in default under the Indenture or, if applicable, in the performance of any of its covenants and agreements made in the Student Loan Purchase Agreement relating to the Acquired Eligible Loans. The Issuer is not aware of any default existing on the date hereof under any of the other documents referred to in paragraph 4 hereof, nor of any circumstances which would reasonably prevent reliance upon the opinion of counsel referred to in paragraphs 4(e) hereof.
6. If applicable, all of the conditions specified in the Student Loan Purchase Agreement applicable to the Acquired Eligible Loans and the Indenture for the acquisition of the Acquired Eligible Loans and the disbursement hereby authorized and requested have been satisfied; provided that the Issuer may waive the requirement of receiving an opinion of counsel from the counsel to the Lender.
7. If a Financed Eligible Loan is being sold or pledged in exchange for an Acquired Eligible Loan such sale and exchange shall not adversely affect the ability of the Trust Estate to make timely principal and interest payments on its Obligations.
H-2
Exhibit 4.11
8. With respect to all Acquired Eligible Loans which are Insured, Insurance is in effect with respect thereto, and with respect to all Acquired Eligible Loans which are Guaranteed, the corresponding Guarantee Agreement is in effect with respect thereto.
9. The Issuer is not in default in the performance of any of its covenants and agreements made in any Contract of Insurance or the Guarantee Agreement applicable to the Acquired Eligible Loans.
10. The proposed use of moneys in the Acquisition Fund is in compliance with the provisions of the Indenture.
11. The undersigned is authorized to sign and submit this Certificate on behalf of the Issuer.
12. Eligible Loans are being acquired at a price which permits the results of the cash flow analyses provided to the Rating Agencies on the Closing Date to be sustained.
WITNESS my hand this _____ day of ___________.
NELNET EDUCATION LOAN FUNDING, INC.
By
 Name
Title

H-3
Exhibit 4.11
SCHEDULE A
ELIGIBLE Loans To Be Acquired
H-4
Exhibit 4.11
ANNEX A
REQUEST FOR AND NOTICE OF RELEASE OF PREVIOUS PLEDGE
AND ACKNOWLEDGMENT OF NEW PLEDGE
Reference is made to the Indenture of Trust, dated as of January 1, 2004 (as amended, the "Indenture"), among Nelnet Education Loan Funding, Inc. as issuer (the "Issuer"), Wells Fargo Bank Minnesota, National Association, as indenture trustee (the "Indenture Trustee") and Wells Fargo Bank Minnesota, National Association, as eligible lender trustee (the "Eligible Lender Trustee"). Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Indenture.
By delivery of the Eligible Loan Acquisition Certificate, the Issuer has directed the Indenture Trustee to finance the Eligible Loans identified in Schedule A to the Eligible Loan Acquisition Certificate (the "Acquired Eligible Loans"). The Issuer hereby directs the Indenture Trustee to release the Acquired Eligible Loans from the security interest granted by the Issuer to Wells Fargo Bank Minnesota, National Association pursuant to that certain [DESCRIPTION OF FINANCING DOCUMENT] dated as of ____________ (the "Prior Financing") between the Issuer, as issuer under the Prior Financing, and Wells Fargo Bank Minnesota, National Association, as trustee under the Prior Financing (the "Prior Financing Trustee"). The Issuer has satisfied the applicable conditions for release of such Eligible Loans from the Prior Financing. The Prior Financing Trustee hereby releases the Acquired Eligible Loans from the pledge of the Prior Financing as of the date specified below.
By delivery of the Eligible Loan Acquisition Certificate, the Issuer has also directed the Indenture Trustee to acquire the Acquired Eligible Loans as Financed Eligible Loans pursuant to the Indenture immediately upon their release from the Prior Financing. The Indenture Trustee hereby acknowledges that such Acquired Eligible Loans have been pledged by the Issuer as a part of the Trust Estate from and after the date specified below to secure the payment of Series 2004-1 Notes issued under the Indenture.
H-5
Exhibit 4.11
IN WITNESS WHEREOF, the undersigned have caused this Request for and Notice of Release of Previous Pledge and Acknowledgment of New Pledge to be executed by their duly authorized offices as of the date specified below.
NELNET EDUCATION LOAN FUNDING, INC.,
 as issuer under the
Prior Financing and as
Issuer under the Indenture
By:

Title:
WELLS FARGO BANK MINNESOTA,
 NATIONAL ASSOCIATION, as the Prior
Financing Trustee under the
Prior Financing and as Indenture Trustee
under the Indenture
By:

Title:

Date:

H-6
Exhibit 4.11
EXHIBIT I
FORM OF ADMINISTRATOR'S MONTHLY
SERVICING PAYMENT DATE CERTIFICATE
This Administrator's Monthly Servicing Payment Date Certificate (this "Certificate") is being provided by National Education Loan Network, Inc., as Administrator (the "Administrator") to Nelnet Education Loan Funding, Inc. (the "Issuer") pursuant to Section 5.04(b) of the Indenture of Trust, dated as of January 1, 2004 (the "Indenture"), among the Issuer, Wells Fargo Bank Minnesota, National Association, as eligible lender trustee, and Wells Fargo Bank Minnesota, National Association, as trustee (the "Indenture Trustee"). All capitalized terms used in this Certificate and not otherwise defined shall have the same meanings as assigned to such terms in the Indenture.
Pursuant to this Certificate, the Administrator hereby directs the Indenture Trustee to distribute to ____________________, by 1:00 p.m. (New York time) on __________, __________ (the "Monthly Servicing Payment Date"), from and to the extent of the Revenues on deposit in the Collection Fund, the $__________ Servicing Fee due with respect to the preceding calendar month.
The Revenues available to pay the Servicing Fee on this Monthly Servicing Payment Date are equal to $----------.
The Administrator hereby certifies that the information herein is true and accurate in all material respects and that the Indenture Trustee may conclusively rely on this Certificate with no further duty to examine or determine the information contained herein.
IN WITNESS WHEREOF, the Administrator has caused this Certificate to be duly executed and delivered as of the date written below.
NATIONAL EDUCATION LOAN
NETWORK, INC., as Administrator
By
 Authorized Signatory
[DATE]
Exhibit 4.11
EXHIBIT J
FORM OF ADMINISTRATOR'S DISTRIBUTION DATE CERTIFICATE
This Administrator's Distribution Date Certificate (this "Certificate") is being provided by National Education Loan Network, Inc., as Administrator
(the "Administrator") to Nelnet Education Loan Funding, Inc. (the "Issuer")
pursuant to Section 5.04(c) of the Indenture of Trust, dated as of January 1, 2004 (the "Indenture"), among the Issuer, Wells Fargo Bank Minnesota, National Association, as eligible lender trustee, and Wells Fargo Bank Minnesota, National Association, as trustee (the "Indenture Trustee"). All capitalized terms used in this Certificate and not otherwise defined shall have the same meanings as assigned to such terms in the Indenture.
Pursuant to this Certificate, the Administrator hereby directs the Indenture Trustee to make the following deposits and distributions to the Persons or to the account specified below by 1:00 p.m. (New York time) on __________ __, _____ (the "Distribution Date"), to the extent of (1) the amount of Revenues in the Collection Fund, (2) the amount, if any, required to be transferred to the Collection Fund from the Class B Supplemental Reserve Fund pursuant to Section 5.03(b) of the Indenture (3) the amount, if any, required to be transferred to the Collection Fund from the Acquisition Fund pursuant to
Section 5.02(b) of the Indenture and (4) the amount, if any, required to be transferred to the Collection Fund from the Note Payment Fund pursuant to
Section 5.05(b) of the Indenture and (5) the amount, if any, required to be transferred to the Collection Fund from the Reserve Fund pursuant to Section 5.07(b) of the Indenture. The Indenture Trustee shall make the following deposits and distributions in the following order of priority, and the Indenture Trustee shall comply with such instructions:

(i)      (a)  The Servicing Fee to the Servicer,                                                  $      -
                                                                                                  ---------------
         (b)  The Indenture Trustee Fee to the Indenture Trustee,                                 $      -
                                                                                                  ---------------
         (c)  The Eligible Lender Trustee Fee to the Eligible Lender Trustee,                     $      -
                                                                                                  ---------------
         (d)  The Auction Agent Fee to the Auction Agent,                                         $      -
                                                                                                  ---------------
         (e)  The Broker-Dealer Fees to the Broker-Dealers,                                       $      -
                                                                                                  ---------------
         (f)  The Remarketing Fees to the Remarketing Agents;                                     $      -
                                                                                                  ---------------
         (g)  Other  Program  Expenses to the Person due such Program  Expenses;                  $      -
              and                                                                                 ---------------

         (h)  The Quarterly Funding Amount to the Remarketing Fee Fund;                           $      -
                                                                                                  ---------------
(ii)     (a)  The Administration Fee to the Administrator; and                                    $      -
                                                                                                  ---------------
         (b)  Any unpaid  Administration  Fees,  if any,  from  prior  Quarterly                  $      -
              Distribution  Dates  to the  Administrator  due  on the  Quarterly                  ---------------
              Distribution Date;	

Exhibit 4.11

(iii)    (a)  The Class A-1A Notes  Interest  Distribution  Amount accrued since                  $      -
              the prior Distribution Date to the Class A-1A Interest Account,                     ---------------

         (b)  The Class A-1B Notes  Interest  Distribution  Amount accrued since                  $      -
              the prior  Distribution  Date to the Class A-1B Interest  Account,                  ---------------
              and

         (c)  The Class A-2 Notes Interest Distribution Amount accrued since the                  $      -
              prior Distribution Date to the Class A-2 Interest Account, and                      ---------------

         (d)  The Class A-3 Notes Interest Distribution Amount accrued since the                  $      -
              prior Distribution Date to the Class A-3 Interest Account, and                      ---------------

         (e)  The Issuer  Derivative  Payments  which are paid on a parity  with                  $      -
              interest  on  the  Class  A  Notes  which  have  accrued  on  each                  ---------------
              Derivative  Product  since  the  prior  Distribution  Date  to the
              corresponding Counterparty Payment Account;

(iv)     (a)  The  Outstanding  Amount of the Class A-1A Notes to the Class A-1A                  $      -
              Redemption Account,                                                                 ---------------

         (b)  The  Outstanding  Amount of the Class A-1B Notes to the Class A-1B                  $      -
              Redemption Account;                                                                 ---------------

         (c)  The  Outstanding  Amount  of the  Class A-2 Notes to the Class A-2                  $      -
              Redemption Account;                                                                 ---------------

         (d)  The  Outstanding  Amount  of the  Class A-3 Notes to the Class A-3                  $      -
              Redemption Account;                                                                 ---------------

(v)      (a)  The Class B-1 Notes Interest Distribution Amount accrued since the                  $      -
              prior Distribution Date to the Class B-1 Interest Account,                          ---------------

         (b)  The Class B-2 Notes Interest Distribution Amount accrued since the                  $      -
              prior Distribution Date to the Class B-2 Interest Account, and                      ---------------

         (c)  The Issuer  Derivative  Payments  which are paid on a parity  with                  $      -
              interest  on  the  Class  B  Notes  which  have  accrued  on  each                  ---------------
              Derivative  Product  since  the  prior  Distribution  Date  to the
              corresponding Counterparty Payment Account;

(vi)     (a)  The  Outstanding  Amount  of the  Class B-1 Notes to the Class B-1                  $      -
              Redemption Account, and                                                             ---------------

         (b)  The  Outstanding  Amount  of the  Class B-2 Notes to the Class B-2                  $      -
              Redemption Account; and                                                             ---------------

(vii)    The amount to be distributed to the  Administrator  for transfer to the                  $      -
         appropriate  Seller or trust  estate  from  which  Eligible  Loans were                  ---------------
         purchased  or  transferred,  an  amount  equal to the  unpaid  interest
         accrued on such Eligible Loans Financed with the proceeds of the Series
         2004-1 Notes subsequent to the cut off date for such Eligible Loans but
         prior to the Closing Date, until such amount has been paid in full.

(viii)   (a)  The  Supplemental  Interest  Deposit  Amount  to  the  Class  A-1A                  $      -
              Supplemental Interest Account,                                                      ---------------

         (b)  The  Supplemental  Interest  Deposit  Amount  to  the  Class  A-1B                  $      -
              Supplemental Interest Account;                                                      ---------------	

J-2
 
Exhibit 4.11

         (c)  The  Supplemental   Interest  Deposit  Amount  to  the  Class  A-2                  $      -
              Supplemental Interest Account;                                                      ---------------

         (d)  The  Supplemental   Interest  Deposit  Amount  to  the  Class  A-3                  $      -
              Supplemental Interest Account;                                                      ---------------

(ix)     Amounts to be deposited to the Reserve Fund (if  necessary to reinstate                  $      -
         the balance of the Reserve Fund up to the Reserve Fund Requirement);                     ---------------

(x)      (a)  The Reset Rate Notes  Carry-over  Amount (and any accrued interest                  $      -
              thereon) due and payable on the Class A-1A Notes to the Class A-1A                  ---------------
              Interest Account,

         (b)  The Reset Rate Notes  Carry-over  Amount (and any accrued interest                  $      -
              thereon) due and payable on the Class A-1B Notes to the Class A-1B                  ---------------
              Interest Account;

         (c)  The Reset Rate Notes  Carry-over  Amount (and any accrued interest                  $      -
              thereon)  due and  payable on the Class A-2 Notes to the Class A-2                  ---------------
              Interest Account;

         (d)  The Reset Rate Notes  Carry-over  Amount (and any accrued interest                  $      -
              thereon)  due and  payable on the Class A-3 Notes to the Class A-3                  ---------------
              Interest Account;

(xi)     (a)  The Auction Rate Notes Carry-over Amount (and any accrued interest                  $      -
              thereon)  due and  payable on the Class B-1 Notes to the Class B-1                  ---------------
              Interest Account, and

         (b)  The Auction Rate Notes Carry-over Amount (and any accrued interest                  $      -
              thereon) due   and payable on the Class B-2 Notes to the Class B-2                  ---------------
              Interest Account;

(xii)    The unpaid  amounts  (including  any  Termination  Payments) due on any                  $      -
         Derivative  Products on which Issuer Derivative  Payments are paid on a                  ---------------
         parity with interest on the Class A Notes Amounts to the  corresponding
         Counterparty Payment Account;

(xiii)   The unpaid  amounts  (including  any  Termination  Payments) due on any                  $      -
         Derivative  Products on which Issuer Derivative  Payments are paid on a                  ---------------
         parity with interest on the Class B Notes Amounts to the  corresponding
         Counterparty Payment Account;

(xiv)    The amount to be distributed to the  Administrator  to reimburse it for                  $      -
         any  payments  made by it to the  Remarketing  Agents  pursuant  to the                  ---------------
         Remarketing Agreement.

(xv)     The amount to be  distributed to the Servicer,  to repurchase  Eligible                  $      -
         Loans that the Issuer is required to  repurchase  from the  Servicer in                  ---------------
         accordance with the terms of the Servicing Agreement;	

J-3
 
Exhibit 4.11

(xvi)    Amounts to be deposited to the Class B  Supplemental  Reserve Fund, the                  $      -
         amount, if any, required by Section 5.03(a) hereof;                                      ---------------

(xvii)   The amount to be distributed to the Issuer  pursuant to Section 5.09 of                  $      -
         the Indenture.                                                                           ---------------

(xviii)  The amount to be transferred to the Acquisition  Fund (Prior to the end                  $      -
         of the Revolving  Period) or the Note Payment Fund  (Subsequent  to the                  ---------------
         end of the Revolving Period).

         Total Distributions                                                                      $      -
                                                                                                  ===============
         Amount on deposit in the Collection Fund on this Distribution Date.                      $      -
                                                                                                  ===============	

Pursuant to this Certificate, if applicable, the Administrator further hereby directs the Indenture Trustee to withdraw (a) from the Class B Supplemental Reserve Fund for deposit to the Collection Fund pursuant to Section 5.03(b) of the Indenture an amount equal to $__________, representing the amount of insufficient Revenues in the Collection Account to make the transfers required by Section 5.04(c)(v) and (x), (b) from the Acquisition Fund for deposit to the Collection Fund pursuant to Section 5.02(b) of the Indenture an amount equal to $__________, representing the amount of insufficient Revenues in the Collection Account to make the transfers required by Section 5.04(c)(i) though (ix) (c) from the Note Payment Fund for deposit to the Collection Fund pursuant to Section 5.05(b) of the Indenture an amount equal to $__________, representing the amount of insufficient Revenues in the Collection Account to make the transfers required by Section 5.04(c)(i) though (ix) and (d) from the Reserve Fund for deposit to the Collection Fund pursuant to Section 5.07(b) of the Indenture an amount equal to $__________, representing the amount of insufficient Revenues in the Collection Account to make the transfers required by Section 5.04(c)(i) though (vi).
The Administrator hereby certifies that the information herein is true and accurate in all material respects and that the Indenture Trustee may conclusively rely on this Certificate with no further duty to examine or determine the information contained herein.
IN WITNESS WHEREOF, the Administrator has caused this Certificate to be duly executed and delivered as of the date written below.
NATIONAL EDUCATION LOAN
NETWORK, INC., as Administrator
By

Authorized Signatory Date

J-4
Exhibit 4.11
EXHIBIT K
FORM OF STUDENT LOAN PURCHASE AGREEMENT

LOAN PURCHASE AGREEMENT
by and between
NELNET EDUCATION LOAN FUNDING, INC.
and
[SELLER],
Dated _____________________

Exhibit 4.11

Section 1.            Definitions.................................................................................1
Section 2.            Purchase of FFELP Loans.....................................................................5
Section 3.            Representations, Warranties, Covenants and Agreements of the Seller.........................6
Section 4.            Conditions of Purchase......................................................................7
Section 5.            Rejection of FFELP Loans....................................................................9
Section 6.            Repurchase Obligation.......................................................................9
Section 7.            Notification to Borrowers..................................................................10
Section 8.            Obligations To Forward Payments and Communications.........................................10
Section 9.            Payment of Expenses and Taxes..............................................................11
Section 10.           Indemnification............................................................................11
Section 11.           Special Provisions Relating to MPN Loans...................................................11
Section 12.           Other Provisions...........................................................................12
Section 13.           Security Interest..........................................................................15
Section 14.           Information and Reporting..................................................................16

EXHIBIT A             LOAN TRANSFER ADDENDUM
EXHIBIT B             SELLER'S CLOSING CERTIFICATE
EXHIBIT C             BLANKET ENDORSEMENT OF STUDENT LOAN PROMISSORY NOTES
EXHIBIT D             BILL OF SALE
EXHIBIT E             REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF SELLER
EXHIBIT F             ACKNOWLEDGMENT	

K-2
Exhibit 4.11
LOAN PURCHASE AGREEMENT
THIS LOAN PURCHASE AGREEMENT (the "Loan Purchase Agreement") made and entered into as of this _____ day of _______________, 20__, by and between NELNET EDUCATION LOAN FUNDING, INC., formerly known as NEBHELP, INC., a Nebraska corporation (the "Corporation") acting by and through WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, not individually but as Eligible Lender Trustee (the "Eligible Lender Trustee") under the Trust Agreement or Eligible Lender Trust Agreement, as applicable from time to time (as defined herein) and
[SELLER], a ____________________________ corporation, organized and existing under the laws of the State of Nevada, and having its principal offices at ______________________ (the "Seller").
W I T N E S S E T H :
WHEREAS, the Corporation, by and through the Eligible Lender Trustee, desires to purchase from the Seller certain FFELP Loans, title to which will be held by the Eligible Lender Trustee pursuant to the applicable Trust Agreement or Eligible Lender Trust Agreement (as defined below), as applicable from time to time, and the Seller desires to sell certain FFELP Loans to the Corporation, title to which will be held by and through the Eligible Lender Trustee, in accordance with the terms and conditions of this Loan Purchase Agreement; and
WHEREAS, the Corporation expects to finance from time to time its purchase and ownership of the FFELP Loans purchased hereunder through the funding made available under one or more of the Financing Agreements.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, the parties agree as follows:
Section 1. Definitions.
"Borrower" means the student or parent obligor under an Eligible Loan.
"Certificate of Insurance" means a certificate of federal loan insurance issued with respect to an Eligible Loan by the Secretary of Education pursuant to the provisions of the Higher Education Act.
"Contract of Insurance" means an agreement between the Secretary of Education and either the Eligible Lender Trustee or the Seller providing for the insurance by the Secretary of Education of the principal of and accrued interest on a FFELP Loan to the maximum extent permitted under the Higher Education Act.
"Corporation" means Nelnet Education Loan Funding, Inc., f/k/a NEBHELP, INC., a Nebraska corporation.
"Eligible Lender Trust Agreement" means the Eligible Lender Trust Agreement, dated as of January 1, 2004, between the Eligible Lender Trustee and the Corporation, as amended and supplemented pursuant to the terms thereof.
K-3
Exhibit 4.11
"Eligible Lender Trustee" means Wells Fargo Bank Minnesota, National Association, acting in its capacity as eligible lender trustee under the Trust Agreement or Eligible Lender Trust Agreement, as applicable, and not in its individual capacity.
"Eligible Loan" means a FFELP Loan authorized to be acquired by the Corporation by and through the Indenture Trustee which (a) is either Insured or Guaranteed; (b) if such FFELP Loan is a subsidized Stafford loan, qualifies the holder thereof to receive Interest Subsidy Payments and Special Allowance Payments; if such FFELP Loan is a consolidation loan authorized under Section 428C of the Higher Education Act, qualifies the holder thereof to receive Interest Subsidy Payments and Special Allowance Payments to the extent applicable; and if such FFELP Loan is a PLUS loan authorized under Section 428B of the Higher Education Act, a SLS loan authorized under Section 428A of the Higher Education Act, or an unsubsidized Stafford loan authorized under Section 428H of the Higher Education Act, such FFELP Loan qualifies the holder thereof to receive Special Allowance Payments; (c) complies with each representation and warranty with respect thereto contained herein; and (d) meets the other criteria set forth in the Loan Purchase Regulations and is eligible for purchase under the terms of the applicable Financing Agreement.
"Federal Contracts" means all agreements between a Guaranty Agency and the Secretary of Education providing for the payment by the Secretary of Education of amounts authorized to be paid pursuant to the Higher Education Act, including, but not limited to, reimbursement of amounts paid or payable upon defaulted Eligible Loans and other student loans insured or guaranteed by any Guaranty Agency and federal interest subsidy payments and Special Allowance Payments, if applicable, to holders of qualifying student loans guaranteed by any Guaranty Agency.
"FFELP Loans" means those specific loans acquired by the Eligible Lender Trustee, on behalf of the Corporation, from the Seller pursuant to this Loan Purchase Agreement, inclusive of the promissory notes evidencing such loans and the related documentation in connection with each thereof, which were originated under the Higher Education Act or insured by the Secretary of Health and Human Services pursuant to the Public Health Services Act.
"Financing Agreement" means, collectively and individually, the following: (a) the Amended and Restated Warehouse Loan and Security Agreement dated as of April 28, 2003, by and among the Eligible Lender Trustee, the Corporation as Borrower, NELnet Student Loan Warehouse Corporation-1, as original borrower, Zions First National Bank as trustee, Royal Bank of Canada, as Alternate Lender and Facility Agent, and Thunder Bay Funding Inc., as Lender (the "RBC Warehouse Loan Agreement"); (b) the Warehouse Note Purchase and Security Agreement, dated as of May 1, 2003, among the Corporation, as Borrower, the Eligible Lender Trustee, as eligible lender trustee and indenture trustee thereunder, YC SUSI Trust, as Conduit Lender, Bank of America, N.A., as Alternate Lender and Facility Agent, Gemini Securitization Corp., as Conduit Lender, Deutsche Bank AG, New York Branch, as Alternate Lender and Facility Agent, Barton Capital Corporation, as Conduit Lender, Societe Generale, as Alternate Lender and Facility Agent, and Bank of America, N.A., as Administrative Agent; (c) the Trust Indenture between NEBHELP, INC. as assignee and Wells Fargo Bank Minnesota, National Association, f/k/a Norwest Bank Minnesota, National Association, as successor trustee, dated as of December 1, 1986; (d) the Trust Indenture dated as of June 1, 1993, between
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Exhibit 4.11
NEBHELP, INC. as assignee and Wells Fargo Bank Minnesota, National Association, f/k/a Norwest Bank Minnesota, National Association, as trustee; (e) Trust Indenture between NEBHELP, INC. as assignee and Wells Fargo Bank Minnesota, National Association, f/k/a Norwest Bank Minnesota, National Association, as successor trustee, dated as of November 15, 1985; (f) Trust Indenture between NEBHELP, INC. as assignee and Wells Fargo Bank Minnesota, National Association, f/k/a Norwest Bank Minnesota, National Association, as successor trustee, dated as of July 1, 1988; (g) Trust Indenture between NEBHELP, INC. as assignee and Wells Fargo Bank Minnesota, National Association, f/k/a Norwest Bank Minnesota, National Association, as trustee, dated as of September 1, 1993; (h) Trust Indenture between NEBHELP, INC. as assignee and Wells Fargo Bank Minnesota, National Association, f/k/a Norwest Bank Minnesota, National Association, as trustee, dated as of May 1, 1997; and (i) the Indenture of Trust, dated as of June 1, 2003, among the Corporation, Wells Fargo Bank Minnesota, National Association, as indenture trustee, and Wells Fargo Bank Minnesota, National Association, as eligible lender trustee; as the same may be amended, modified, supplemented, restated or otherwise altered, which is utilized to finance, from time to time, the Corporation's purchase of the FFELP Loans under this Loan Purchase Agreement.
"Guarantee" or "Guaranteed" means, with respect to a FFELP Loan, the guarantee by a Guaranty Agency, in accordance with the terms and conditions of the Guaranty Agency's Guarantee Agreement, of the principal of and accrued interest on the FFELP Loan to the maximum extent permitted under the Higher Education Act on FFELP Loans which have been originated, held and serviced in full compliance with the Higher Education Act, and the coverage of the FFELP Loan by the Federal Contracts providing, among other things, for reimbursement to a Guaranty Agency for losses incurred by it on defaulted Eligible Loans guaranteed by it to the extent of the maximum reimbursement allowed by the Federal Contracts.
"Guaranty Agency" means a state agency or a private nonprofit institution or organization which administers a Guarantee Program within a State or any successors and assignees thereof administering the Guarantee Program which has entered into a Guarantee Agreement with the Eligible Lender Trustee on behalf of the Corporation.
"Guarantee Agreement" means the Federal Contracts, an agreement between a Guaranty Agency and either the Eligible Lender Trustee or the Seller providing for the Guarantee by such Guaranty Agency of the principal of and accrued interest on Eligible Loans to Borrowers, made or acquired by the Eligible Lender Trustee or the Seller from time to time, and any other similar guarantee or agreement issued by a Guaranty Agency to the Corporation or the Eligible Lender Trustee pertaining to Financed Eligible Loans.
"Guaranteed Loans" means FFELP Loans that are Guaranteed.
"Guarantee Program" means a Guaranty Agency's student loan guaranty program pursuant to which such Guaranty Agency guarantees or insures student loans.
"Higher Education Act" shall mean Title IV, Parts B, F and G, of the Higher Education Act of 1965, as amended or supplemented and in effect from time to time, or any successor enactment thereto, and all regulations promulgated thereunder and any directives issued by the Secretary of Education.
K-5
Exhibit 4.11
"Insurance" or "Insured" or "Insuring" means, with respect to a FFELP Loan, the insuring by the Secretary of Education (as evidenced by a Certificate of Insurance or other document or certification issued under the provisions of the Higher Education Act) under the Higher Education Act of the principal of and accrued interest on such FFELP Loan to the maximum extent permitted under the Higher Education Act for FFELP Loans originated, held and serviced in full compliance with the Higher Education Act.
"Insured Loans" means FFELP Loans which are Insured.
"Interest Subsidy Payments" means interest subsidy payments received from the Secretary of Education pursuant to Section 428 of the Higher Education Act or similar payments authorized by federal law or regulation.
"Loan Purchase Agreement" means this Loan Purchase Agreement including all exhibits and schedules attached hereto, and any addenda, supplements or amendments hereto.
"Loan Purchase Date" means the date as described in Section 2(b) hereof.
"Loan Purchase Regulations" means the rules and regulations of the Corporation, as may be adopted by the Corporation from time to time (with the consent of any persons required under the terms of the applicable Financing Agreement), which pertain to the Program, which shall incorporate all requirements specified in any indentures or other financing arrangements to which the Corporation is subject.
"Loan Transfer Schedule" means a written schedule on a form provided by the Corporation or its servicing agent identifying the Borrower on the FFELP Loans to be purchased hereunder.
"Master Note" means a Master Promissory Note in the form mandated by
Section 432(m)(1)(D) of the Higher Education Act, as added by Pub. L. 105-244, ss. 427,112 Stat. 1702 (1998) as amended by Public Law No: 106 554 (enacted December 21, 2000) and as codified at 20 U.S.C. ss. 1082(m)(1).
"MPN Loan" means a FFELP Loan evidenced by a Master Note.
"Program" means the Corporation's Eligible Loan acquisition program under which the Eligible Lender Trustee has acquired and will acquire Eligible Loans to assist students in obtaining a post secondary education.
"Secretary of Education" means the Commissioner of Education and the Secretary of the United States Department of Education (who succeeded to the functions of the Commissioner of Education pursuant to the Department of Education Organization Act), or any officer, board, body, commission or agency succeeding to the functions thereof under the Higher Education Act.
"Seller" means [SELLER], a _____________ [corporation], which is an "eligible lender" under the criteria established by the Higher Education Act that has received an eligible lender designation by the Secretary of Education with respect to Insured Loans or from a Guaranty
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Exhibit 4.11
Agency with respect to Guaranteed Loans, identified in the introduction to this Loan Purchase Agreement, which has sold and is selling FFELP Loans to the Corporation hereunder or, if Seller is not designated as an eligible lender under the Higher Education Act, Seller holds beneficial ownership of FFELP Loans through its eligible lender trustee, which is an eligible lender under the Higher Education Act.
"Special Allowance Payments" means special allowance payments authorized to be made by the Secretary of Education pursuant to Section 438 of the Higher Education Act or similar allowances authorized from time to time by federal law or regulation.
"Trust Agreement" means one of the following, as applicable: (a) the Amended and Restated Warehouse Loan and Security Agreement dated as of April 28, 2003, by and among the Eligible Lender Trustee, the Corporation as Borrower, NELnet Student Loan Warehouse Corporation 1, as original borrower, Zions First National Bank as trustee, Royal Bank of Canada, as Alternate Lender and Facility Agent, and Thunder Bay Funding Inc., as Lender (the "RBC Warehouse Loan Agreement"); (b) the Warehouse Note Purchase and Security Agreement dated as of May 1, 2003, among the Corporation, as Borrower, the Eligible Lender Trustee, as eligible lender trustee and indenture trustee thereunder, Quincy Capital Corporation, as Conduit Lender, Bank of America, N.A., as Alternate Lender and Facility Agent, Gemini Securitization Corp., as Conduit Lender, Deutsche Bank AG, New York Branch, as Alternate Lender and Facility Agent, Barton Capital Corporation, as Conduit Lender, Societe Generale, as Alternate Lender and Facility Agent, and Bank of America, N.A., as Administrative Agent; (c) the Trust Indenture between NEBHELP, INC. as assignee and Wells Fargo Bank Minnesota, National Association, f/k/a Norwest Bank Minnesota, National Association, as successor trustee, dated as of December 1, 1986; (d) the Trust Indenture dated as of June 1, 1993, between NEBHELP, INC. as assignee and Wells Fargo Bank Minnesota, National Association, f/k/a Norwest Bank Minnesota, National Association, as trustee; (e) Trust Indenture between NEBHELP, INC. as assignee and Wells Fargo Bank Minnesota, National Association, f/k/a Norwest Bank Minnesota, National Association, as successor trustee, dated as of November 15, 1985; (f) Trust Indenture between NEBHELP, INC. as assignee and Wells Fargo Bank Minnesota, National Association, f/k/a Norwest Bank Minnesota, National Association, as successor trustee, dated as of July 1, 1988; (g) Trust Indenture between NEBHELP, INC. as assignee and Wells Fargo Bank Minnesota, National Association, f/k/a Norwest Bank Minnesota, National Association, as trustee, dated as of September 1, 1993; (h) Trust Indenture between NEBHELP, INC. as assignee and Wells Fargo Bank Minnesota, National Association, f/k/a Norwest Bank Minnesota, National Association, as trustee, dated as of May 1, 1997; and
(i) the Indenture of Trust, dated as of June 1, 2003, among the Corporation, Wells Fargo Bank Minnesota, National Association, as indenture trustee, and Wells Fargo Bank Minnesota, National Association, as eligible lender trustee.
Section 2. Purchase of FFELP Loans.
(a) Subject to the terms and conditions and in reliance upon the representations, warranties and agreements set forth herein, the Seller (i) has sold to the Eligible Lender Trustee, acting on behalf of the Corporation, and the Corporation, acting by and through the Eligible Lender Trustee under the applicable Trust Agreement or Eligible Loan Trust Agreement, has purchased from the Seller the FFELP Loans which
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Exhibit 4.11
are Eligible Loans and specified in Annex I to this Loan Purchase Agreement; and (ii) agrees to sell to the Eligible Lender Trustee, acting on behalf of the Corporation, and the Corporation, acting by and through the Eligible Lender Trustee under the Trust Agreement or Eligible Lender Trust Agreement, as applicable, on behalf of the Corporation, agrees to buy from the Seller, a portfolio of FFELP Loans which are Eligible Loans in the aggregate unpaid principal amount as set forth in the Loan Transfer Addendum in the form set forth in Exhibit A hereto. Additional portfolios of FFELP Loans may be purchased from the Seller hereunder by the Corporation by and through the Eligible Lender Trustee from time to time in the future, if the parties hereto execute and deliver a subsequent Loan Transfer Addendum for each such purchase of a portfolio in the form set forth in Exhibit A hereto, reflecting the aggregate unpaid principal balance of Eligible Loans contained in such portfolio and the Loan Purchase Date, and if the Seller executes and delivers to the Corporation all documents required under Section 4 hereof as of the applicable Loan Purchase Date. Any subsequent purchase of an additional portfolio of FFELP Loans shall be governed in all respects by this Loan Purchase Agreement together with the Loan Transfer Addendum pertaining to such portfolio. The Seller shall deliver a Loan Transfer Schedule to the Corporation, not less than 30 days prior to the applicable Loan Purchase Date. Consummation of the sale of each FFELP Loan shall require execution and delivery to the Corporation of the Seller's Closing Certificate in the form of Exhibit B hereto (and delivery of the documents described in Exhibit B hereto), the blanket endorsement and bill of sale as well as execution and delivery by the Seller in the forms set forth in Exhibits C and D hereto, respectively. It is the intention of the Seller that the transfer from the Seller to the Eligible Lender Trustee on behalf of the Corporation constitutes a true sale of the FFELP Loans hereunder and that neither the interest in nor title to the FFELP Loans shall become or be deemed property of the Seller for any purpose under applicable law.
(b) Delivery and payment for the FFELP Loans shall take place at a location and on a date (the "Loan Purchase Date") to be specified by the Corporation in the related Loan Transfer Addendum. The applicable Loan Purchase Date shall not be later than the date set forth in the Loan Transfer Addendum pertaining to such FFELP Loans.
(c) Subject to the terms and conditions of this Loan Purchase Agreement, the Corporation agrees to purchase the FFELP Loans by and through the Eligible Lender Trustee at a price equal to _____% of the outstanding unpaid principal amount thereof on the Loan Purchase Date with proceeds from the obligations issued pursuant to the Financing Agreement, or such other amount agreed upon and specified in the Loan Transfer Addendum as set forth in Exhibit A hereto. The Seller shall be responsible for reporting to the Secretary of Education and, if required by the provisions of the Higher Education Act, offsetting against Interest Subsidy Payments and Special Allowance Payments made to the Seller by the Secretary of Education the entire amount of any origination fee which is authorized to be charged by the Higher Education Act with respect to the FFELP Loans sold hereunder. Additionally, the Seller shall, as a condition to the purchase by the Corporation of any FFELP Loan, be required to pay to the Corporation on the Loan Purchase Date the amount of any such origination fee which has not at that time been used to offset such Special Allowance Payments or Interest Subsidy Payments, to the extent that the Special Allowance Payments or Interest Subsidy
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Exhibit 4.11
Payments received by the Eligible Lender Trustee in connection with such FFELP Loans shall be affected. Seller shall continue due diligence servicing in compliance with the Higher Education Act, at Seller's cost, up to the applicable Loan Purchase Date; thereafter, servicing shall be paid for by, and shall be the responsibility of, the Corporation.
(d) Subject to the terms and conditions of this Loan Purchase Agreement, Seller shall sell to the Corporation, by and through the Eligible Lender Trustee, all Eligible Loans made to the same Borrower(s) which are held by or on behalf of Seller (serial loans).
(e) If Seller originates or purchases a FFELP Loan which is a consolidation loan under Section 428C of the Higher Education Act, and the proceeds of such consolidation loan are used to repay the principal and interest due on a FFELP Loan sold by Seller to the Corporation hereunder, then Seller shall rebate the premiums paid by the Corporation to Seller in connection with the purchase of said FFELP Loan by paying to the Corporation an amount equal to the same percentage of the principal balance of said FFELP Loan then outstanding as was originally paid by the Corporation therefor.
Section 3. Representations, Warranties, Covenants and Agreements of the Seller.
(a) With respect to FFELP Loans sold on a Loan Purchase Date, the Seller hereby makes the representations and warranties set forth in Exhibit E hereto as of such Loan Purchase Date. Each representation, warranty, certification, covenant and agreement contained in this Loan Purchase Agreement shall survive the applicable Loan Purchase Date.
(b) The Seller shall not organize under the law of any jurisdiction other than the State under which it is organized as of the date hereof (whether changing its jurisdiction of organization or organizing under an additional jurisdiction) without giving 30 days prior written notice of such action to the Corporation. Before effecting such change, the Seller shall prepare and file in the appropriate filing office any financing statements or other statements necessary to continue the perfection of the Corporation's interests in the FFELP Loans.
Section 4. Conditions of Purchase. The Corporation's obligation to purchase and pay for the FFELP Loans hereunder by and through the Eligible Lender Trustee as of the date hereof and any applicable Loan Purchase Date shall be subject to each of the following conditions precedent:
(a) All representations, warranties and statements by or on behalf of the Seller contained in this Loan Purchase Agreement shall be true on the date hereof and the applicable Loan Purchase Date.
(b) Any notification to or approval by the Secretary of Education or a Guaranty Agency required by the Higher Education Act or a Guarantee Agreement as a condition to the assignment of the FFELP Loans shall have been made or received and evidence thereof delivered to the Corporation.
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Exhibit 4.11
(c) The entire interest of the Seller in each FFELP Loan shall have been duly assigned by endorsement in the form set forth in Exhibit C hereto, such endorsement to be without recourse except as provided in
Section 6 hereof.
(d) Physical custody and possession of the FFELP Loans (including all information and documentation which is described in the Seller's Closing Certificate as specified in Exhibit B hereto) shall be transferred in the manner directed by the Corporation.
(e) The Corporation shall receive an opinion of the Seller's counsel, dated as of the date hereof covering each sale of FFELP Loans, in form and substance satisfactory to the Corporation and the Eligible Lender Trustee with respect to the Trust Agreement or Zions First National Bank as Eligible Lender Trustee with respect to the RBC Warehouse Loan Agreement, as applicable, to the effect that (i) this Loan Purchase Agreement has been duly authorized, executed and delivered by the Seller and constitutes the legal, valid, binding and enforceable obligation of the Seller; (ii) the blanket endorsement and bill of sale required by this Loan Purchase Agreement have been duly authorized, executed and delivered by the Seller; (iii) with respect to all Insured Loans being acquired, the applicable Contract of Insurance has been duly authorized, executed and delivered by the Seller; (iv) with respect to all Guaranteed Loans being acquired, the applicable Guarantee Agreement has been duly authorized, executed and delivered by the Seller; (v) assuming the due execution and delivery thereof, each FFELP Loan constitutes the legal, valid and binding obligation of the Borrower (and of each endorser, if any) thereof, enforceable in accordance with its terms; (vi) to the knowledge of the Seller's counsel, the execution and delivery of this Loan Purchase Agreement, the consummation of the transactions therein contemplated and compliance with the terms, conditions and provisions of this Loan Purchase Agreement do not and will not conflict with or result in a breach of any of the terms, conditions or provisions of the charter, articles or bylaws of the Seller or any agreement or instrument to which the Seller is a party or by which it is bound or constitute a default thereunder; (vii) to the knowledge of the Seller's counsel, the Seller is not a party to or bound by any agreement or instrument or subject to any charter or other corporation restriction or judgment, order, writ, injunction, decree, law, rule or regulation which may materially and adversely affect the ability of the Seller to perform its obligations under this Loan Purchase Agreement; (viii) no consent, approval or authorization of any government or governmental body, including, without limitation, the Federal Deposit Insurance Corporation ("FDIC"), the Comptroller of the Currency, the Board of Governors of the Federal Reserve System or any state bank regulatory agency, is required in connection with the consummation of the transactions contemplated in this Loan Purchase Agreement; (ix) this Loan Purchase Agreement shall constitute a security agreement under Nebraska law and shall be effective to create, in favor of the Corporation, a perfected valid security interest in the FFELP Loans subject to no prior liens; (x) if the Corporation and the Seller are affiliates, that (A) if the Seller became a debtor under the United States Bankruptcy Code, 11 U.S.C. ss.ss. 101 et seq., as amended (the "Bankruptcy Code"), (1) Section 541(a)(1) of the Bankruptcy Code would not apply to deem the FFELP sold by the Seller to the Corporation and the proceeds therefrom as property of the bankruptcy estate of the Seller; and, therefore, (2) Section 362(a) of the bankruptcy Code would not apply to stay payment to the
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Exhibit 4.11
Corporation or its assignees; and (B) if the Seller became a debtor under the Bankruptcy Code, a court would not disregard the separate identity of the Corporation so that the assets of the Seller would be consolidated with and become a part of the Seller's bankruptcy estate; and (xi) if the Seller is a bank or savings association the deposits of which are insured by the FDIC (a "Bank") and the FDIC were appointed as receiver or conservator of such Bank, a court would not recharacterize the transfer and assignment of the FFELP Loans to the Borrower as a pledge to secure a borrowing rather than a sale of the FFELP Loans.
(f) Delivery by the Seller to the Corporation on or before the date hereof of the following documentation: Seller's Closing Certificate in the form of Exhibit B hereto; blanket endorsement in the form of Exhibit C hereto; bill of sale in the form of Exhibit D hereto; UCC 1 Financing Statements evidencing the transfer from the Seller to the Corporation and the Eligible Lender Trustee on behalf of the Corporation, and UCC lien searches sufficiently in advance of the date hereof so as to permit review thereof by the Corporation to its satisfaction, if either or both are requested by the Corporation or a party to the Financing Agreement; and UCC termination statements or releases, if any, releasing any security interest granted by the Seller in any FFELP Loan.
(g) Delivery by the Seller to the Corporation, (i) prior to the date hereof, of a complete Annex I listing the FFELP Loans previously transferred by the Seller to the Corporation; and (ii) prior to the Loan Purchase Date, of a fully executed and completed Loan Transfer Addendum substantially in the form of Exhibit A hereto with respect to FFELP Loans referred to in the bill of sale, and delivery of a Loan Transfer Schedule as required in Section 2(a) hereof.
(h) Adequate funds are available to the Corporation from an indenture, Trust Agreement or other Financing Agreement relating to the Corporation's borrowings which will finance the purchase of FFELP Loans under this Loan Purchase Agreement.
(i) Delivery by the Seller of a closing certificate dated as of the date hereof in form and substance satisfactory to the Corporation and the Eligible Lender Trustee with respect to the Trust Agreement or Zions First National Bank as trustee with respect to the RBC Warehouse Loan Agreement, as applicable, and a certificate dated as of the date hereof of the a certificate in the form attached as Annex A to the true sale/non consolidation opinion of Kutak Rock LLP dated January 30, 2004.
Section 5. Rejection of FFELP Loans.
(a) If (i) the Seller is unable to make or furnish the representations and warranties required to be made or furnished by it pursuant to this Loan Purchase Agreement as to a FFELP Loan; (ii) the Corporation determines that the Seller is unable to fulfill one or more covenants or conditions of this Loan Purchase Agreement as to a FFELP Loan; (iii) the Corporation, in its reasonable judgment, deems that a FFELP Loan does not comply with the terms and conditions of this Loan Purchase Agreement or is not being delivered in compliance with such terms and conditions; or (iv) the Corporation, in its reasonable judgment deems that a FFELP Loan is for any reason unacceptable to it,
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Exhibit 4.11
then the Corporation, within 30 days of the Loan Purchase Date, may refuse to accept and pay for such FFELP Loan (or any substitute FFELP Loan offered by the Seller in lieu thereof).
(b) If the Corporation rejects a FFELP Loan, any such FFELP Loan shall be repurchased by the Seller and returned to the Seller by registered mail (for repurchase pursuant to Section 6 hereof if the student loan has previously been purchased by the Corporation), together with a letter identifying each returned FFELP Loan and stating the basis for its return. The Corporation shall cause any FFELP Loan returned to the Seller which has been endorsed to the Eligible Lender Trustee to be endorsed by the Eligible Lender Trustee to the Seller in the form set forth in Exhibit F hereto.
The liability of the Corporation in connection with the loss of or damage to any FFELP Loan to be returned to the Seller is limited to such loss or damage occurring as a result of its gross negligence or willful misconduct in handling or safekeeping FFELP Loans.
Section 6. Repurchase Obligation. If:
(a) any representation or warranty made or furnished by the Seller in or pursuant to this Loan Purchase Agreement shall prove to have been materially incorrect;
(b) the Secretary of Education or a Guaranty Agency, as the case may be, refuses to honor all or part of a claim filed with respect to a FFELP Loan (including any claim for Interest Subsidy Payments, Special Allowance Payments, Insurance, reinsurance or Guarantee payments) on account of any circumstance or event that occurred prior to the sale of such FFELP Loan to the Corporation by and through the Eligible Lender Trustee;
(c) on account of any circumstance or event that occurred prior to the sale of a FFELP Loan to the Corporation, by and through the Eligible Lender Trustee, a defense is asserted by a Borrower (or endorser, if any) of the FFELP Loan with respect to Borrower's obligation to pay all or any part of the FFELP Loan, and the Corporation, in good faith, believes that the facts reported, if true, raise a reasonable doubt as to the legal enforceability of such FFELP Loan;
(d) a FFELP Loan is required to be repurchased pursuant to
Section 5(b) hereof; or
(e) the instrument which Seller purports to be a FFELP Loan is not, in fact, a FFELP Loan;
then the Seller shall repurchase such FFELP Loan or purported FFELP Loan upon the request of the Corporation by paying to the Corporation the then outstanding principal balance of such FFELP Loan or purported FFELP Loan multiplied by the percentage used to calculate the purchase price specified in the applicable Loan Transfer Addendum, or otherwise (or such greater amount as may be necessary to make the Corporation and the Eligible Lender Trustee whole in light of the purchase price originally paid by the Corporation for such loan), plus interest and applicable Special Allowance Payments with respect to such FFELP Loan or
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Exhibit 4.11
purported FFELP Loan from the Loan Purchase Date to and including the date of repurchase, plus any amounts owed to the Secretary of Education with respect to the repurchased FFELP Loan or purported FFELP Loan, plus any attorneys' fees, legal expenses, court costs, servicing fees or other expenses incurred by the Corporation and the Eligible Lender Trustee in connection with such FFELP Loan or purported FFELP Loan.
Section 7. Notification to Borrowers. The servicing agent on behalf of the Seller shall notify Borrowers under the FFELP Loans as required by the Higher Education Act of the assignment and transfer to the Eligible Lender Trustee of the Seller's interest in such FFELP Loans and the Seller shall direct each Borrower to make all payments thereon directly to the Corporation or as it may otherwise designate.
Section 8. Obligations To Forward Payments and Communications.
(a) The Seller shall promptly remit, or cause to be remitted, to the Corporation all funds received by the Seller after the applicable Loan Purchase Date which constitute payments of principal or interest (including Interest Subsidy Payments) or Special Allowance Payments accrued after the applicable Loan Purchase Date with respect to any FFELP Loan.
(b) The Seller shall immediately transmit to the Corporation any communication received by the Seller after the applicable Loan Purchase Date with respect to a FFELP Loan or the Borrower under such a FFELP Loan. Such communication shall include, but not be limited to, letters, notices of death or disability, adjudication of bankruptcy and similar documents and forms requesting deferment of repayment or loan cancellations.
Section 9. Payment of Expenses and Taxes. Each party to this Loan Purchase Agreement shall pay its own expenses incurred in connection with the preparation, execution and delivery of this Loan Purchase Agreement and the transactions herein contemplated, including, but not limited to, the fees and disbursements of counsel; provided, however, that Seller shall pay any transfer or other taxes and recording or filing fees payable in connection with the sale and purchase of the FFELP Loans.
Section 10. Indemnification. The Seller specifically acknowledges that the Corporation, in obtaining financing, will be making representations and warranties regarding the FFELP Loans based in part on the accuracy of the Seller's representations and warranties in this Loan Purchase Agreement. The Seller agrees to indemnify and save the Eligible Lender Trustee, the Corporation, the parties to the Financing Agreement and noteholders under the Financing Agreement (together with each of their respective successors, assignees, officers, directors, agents and employees) harmless of, from and against any and all loss, liability, cost, damage or expense, including reasonable attorneys' fees and costs of litigation, incurred by reason of any breach of the Seller's warranties, representations or covenants hereunder or any false or misleading representations of the Seller or any failure to disclose any matter which makes the warranties and representations herein misleading or any inaccuracy in any information furnished by the Seller in connection herewith.
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Exhibit 4.11
Section 11. Special Provisions Relating to MPN Loans.
(a) The Seller hereby represents and warrants that the Seller is transferring all of its right title and interest in the MPN Loans to the Corporation, that it has not assigned any interest in such MPN Loans (other than security interests that have been released or ownership interests that the Seller has reacquired) to any person other than the Corporation, and that no prior holder of the MPN Loans has assigned any interest in such MPN Loans (other than security interests that have been released or ownership interests that such prior holder has reacquired) to any person other than a predecessor in title to the Seller. The Seller hereby covenants that the Seller shall not attempt to transfer to any other person any interest in any MPN Loan assigned hereunder.
(b) The Seller hereby authorizes the Corporation to file a UCC-1 financing statement identifying the Seller as debtor and the Corporation as secured party and describing the MPN Loans sold pursuant to this Loan Purchase Agreement. The preparation or filing of such UCC-1 financing statement is solely for additional protection of the Corporation's interest in the MPN Loans and shall not be deemed to contradict the express intent of the Seller and the Corporation that the transfer of MPN Loans under this Loan Purchase Agreement is an absolute assignment of such MPN Loans and is not a transfer of such MPN Loans as security for a debt.
Section 12. Other Provisions.
(a) The Seller shall, at its expense, furnish to the Corporation such additional information concerning the Seller's student loan portfolio as the Corporation may reasonably request.
(b) The Seller shall, at its expense, execute all other documents and take all other steps as may be requested by the Corporation or the Eligible Lender Trustee from time to time to effect the sale hereunder of the FFELP Loans.
(c) The provisions of this Loan Purchase Agreement cannot be waived or modified unless such waiver or modification is in writing and signed by the parties hereto. Inaction or failure to demand strict performance shall not be deemed a waiver.
(d) This Loan Purchase Agreement shall be governed by the laws of the State of Nebraska.
(e) All covenants and agreements herein contained shall extend to and be obligatory upon all successors of the respective parties hereto.
(f) This Loan Purchase Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
(g) If any provision of this Loan Purchase Agreement shall be held, deemed to be or shall, in fact, be inoperative or unenforceable as applied in any particular situation, such circumstances shall not have the effect of rendering the provision in question
K-14
Exhibit 4.11
inoperative or unenforceable in any other situation or of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to any extent whatsoever. The invalidity of any one or more phrases, sentences, clauses or paragraphs herein contained shall not affect the remaining portions of this Loan Purchase Agreement or any part hereof.
(h) All notices, requests, demands or other instruments which may or are required to be given by either party to the other shall be in writing, and each shall be deemed to have been properly given when served personally on an officer of the party to whom such notice is given or upon expiration of a period of 48 hours from and after the postmark thereof when mailed, postage prepaid, by registered or certified mail, requesting return receipt, by overnight courier, or by facsimile, addressed as follows:

If to the Corporation:               Nelnet Education Loan Funding, Inc.
                                     121 South 13th Street, Suite 201
                                     Lincoln, NE  68508
                                     Attention:  Terry J. Heimes
                                     Telephone:  (402) 458 2301
                                     Facsimile:  (402) 458 2399

with a copy to the Eligible
Lender Trustee at:                   Wells Fargo Bank Minnesota, National
                                        Association
                                     Corporate Trust Services
                                     6th and Marquette, N9303 110
                                     Minneapolis, MN  55479
                                     Attention:  Corporate Trust Department
                                     Telephone:  (612) 667 4802
                                     Facsimile:  (612) 667 2149	

If to the Seller, addressed in the manner as set forth in the first paragraph of this Loan Purchase Agreement.
Either party may change the address and name of the addressee to which subsequent notices are to be sent to it by notice to the others given as aforesaid, but any such notice of change, if sent by mail, shall not be effective until the fifth day after it is mailed.
(i) This Loan Purchase Agreement may not be terminated by either party hereto except in the manner and with the effect herein specifically provided for.
(j) Time is of the essence in this Loan Purchase Agreement.
(k) This Loan Purchase Agreement shall not be assignable by the Seller, in whole or in part, without the prior written consent of the Corporation.
(l) No remedy by the terms of this Loan Purchase Agreement conferred upon or reserved to the Corporation is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and in addition to every other remedy given
K-15
Exhibit 4.11
under this Loan Purchase Agreement or existing at law or in equity (including, without limitation, the right to such equitable relief by way of injunction) or by statute on or after the date of this Loan Purchase Agreement.
(m) Acts to be taken by the Corporation with respect to acquiring and holding title to FFELP Loans hereunder shall be taken by the Eligible Lender Trustee as directed by the Corporation, which qualifies as an "eligible lender" trustee under the Higher Education Act, and all references herein to the Corporation shall incorporate by this reference the fact that the Eligible Lender Trustee will be acquiring and holding title to FFELP Loans on behalf of the Corporation, all as required under the Higher Education Act.
(n) The parties hereto acknowledge that the Eligible Lender Trustee with respect to the Trust Agreement or Zions First National Bank as trustee with respect to the RBC Warehouse Loan Agreement, as applicable, and other parties to the Financing Agreement, shall be third party beneficiaries of this Loan Purchase Agreement with the power and right to enforce the provisions thereof, and the Eligible Lender Trustee with respect to the Trust Agreement or Zions First National Bank as trustee with respect to the RBC Warehouse Loan Agreement, as applicable, and any such credit providers may become an assignee of the Corporation. The foregoing creates a permissive right on the part of such third party beneficiaries, and such third party beneficiaries shall be under no duties or obligations hereunder.
(o) This Loan Purchase Agreement has been made and entered into not only for the benefit of the Corporation and Seller but also for the benefit of the Eligible Lender Trustee with respect to the Trust Agreement or Zions First National Bank as trustee with respect to the RBC Warehouse Loan Agreement, as applicable, in connection with the financing of Eligible Loans as defined in the RBC Warehouse Loan Agreement, and upon assignment by the Corporation to the Eligible Lender Trustee with respect to the Trust Agreement or Zions First National Bank as trustee with respect to the RBC Warehouse Loan Agreement, as applicable, its provisions may be enforced not only by the parties to this Loan Purchase Agreement but by the Eligible Lender Trustee with respect to the Trust Agreement or Zions First National Bank as trustee with respect to the RBC Warehouse Loan Agreement, as applicable. The foregoing creates a permissive right on behalf of the Eligible Lender Trustee with respect to the Trust Agreement or Zions First National Bank as trustee with respect to the RBC Warehouse Loan Agreement, as applicable, and neither shall be under any duties or obligations hereunder.
This Loan Purchase Agreement shall inure to the benefit of the Eligible Lender Trustee with respect to the Eligible Lender Trust Agreement and Zions First National Bank, as trustee with respect to the RBC Warehouse Loan Agreement and its successors and assigns. Without limiting the generality of the foregoing, all representations, covenants and agreements in this Loan Purchase Agreement which expressly confer rights upon the Eligible Lender Trustee with respect to the Eligible Lender Trust Agreement and Zions First National Bank, as trustee with respect to the RBC Warehouse Loan Agreement shall be for the benefit of and run directly to, the Eligible Lender Trustee with respect to the Eligible Lender Trust Agreement and Zions First National Bank, as trustee with respect to the RBC Warehouse Loan Agreement, and the Eligible
K-16
Exhibit 4.11
Lender Trustee with respect to the Eligible Lender Trust Agreement and Zions First National Bank, as trustee with respect to the RBC Warehouse Loan Agreement shall be entitled to rely on and enforce such representations, covenants and agreements to the same extent as if it were a party hereto. The foregoing creates a permissive right on behalf of the Eligible Lender Trustee with respect to the Eligible Lender Trust Agreement and Zions First National Bank, as trustee with respect to the RBC Warehouse Loan Agreement, and neither the Eligible Lender Trustee with respect to the Eligible Lender Trust Agreement nor Zions First National Bank, as trustee with respect to the RBC Warehouse Loan Agreement shall be under any duties or obligations hereunder.
Section 13. Security Interest. The parties to this Loan Purchase Agreement intend that the conveyance of the Seller's right, title and interest in and to the FFELP Loans sold pursuant to this Loan Purchase Agreement (the "Student Loans") shall constitute an absolute sale, conveying good title free and clear of any liens, claims, encumbrances or rights of others from the Seller to the Corporation. The parties to this Loan Purchase Agreement intend that the arrangements with respect to the Student Loans shall constitute a purchase and sale of such Student Loans and not a loan. In the event, however, that it were determined by a court of competent jurisdiction that the transactions evidenced by this Loan Purchase Agreement shall constitute a loan and not a purchase and sale, the parties hereto intend that this Loan Purchase Agreement would constitute a security agreement under applicable law and that the Seller shall be deemed to have granted, and hereby does grant (subject to the condition above), to the Corporation (and the Eligible Lender Trustee) a first priority perfected security interest in all of the Seller's right, title and interest, whether now owned or hereafter acquired, in, to and under all accounts, general intangibles, chattel paper, instruments, documents, goods, investment property, money, deposit accounts, certificates of deposit, letters of credit, advices of credit and other property consisting of, arising from or related to the following collateral to secure the rights of the Corporation hereunder and the obligations of the Seller hereunder (collectively, the "Pledged Collateral"):
(a) all Student Loans;
(b) all revenues and recoveries of principal from Student Loans, including all borrower payments and reimbursements of principal and accrued interest on default claims received from any Guaranty Agency;
(c) any other revenues and recoveries of principal and interest and other payments and reimbursements of principal and accrued interest received with respect to any Student Loan and any other collection of cash with respect to such Student Loan (including, but not limited to, Interest Subsidy Payments, Special Allowance Payments, finance charges and payments representing the repurchase of any Student Loan or rebate of premium thereon pursuant to this Loan Purchase Agreement) received or deemed to have been received and all other cash collections, tax refunds and other cash proceeds of the Pledged Collateral held in various funds and accounts created under this Loan Purchase Agreement;
(d) all other security interests or liens and property subject thereto from time to time, if any, purporting to secure payment of such Student Loans, whether pursuant to the contract related to such Student Loans or otherwise;
K-17
Exhibit 4.11
(e) all documents, books, records and other information (including, without limitation, computer programs, tapes, disks, punch cards, data processing software and related property and rights) maintained with respect to Student Loans otherwise in respect of the Pledged Collateral; and
(f) all proceeds of the foregoing (including, but not by way of limitation, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance proceeds, condemnation awards, rights to payment of any and every kind, and other forms of obligations and receivables or other liquidated property which at any time constitute all or part or are included in the proceeds of any of the foregoing property).
The Seller agrees that from time to time, at its expense, it will properly execute and deliver all further instruments and documents (including, without limitation, UCC-1 financing statements and Custodian Agreements with the Servicer), and take all further action that Corporation may reasonably request in order to perfect, protect or more fully evidence the Corporation's interest in the Pledged Collateral or to enable the Corporation to exercise or enforce any of its rights hereunder.
Section 14. Information and Reporting. Seller shall furnish to the Corporation: (a) upon execution of this Agreement, Seller's most recent audited financial statement prepared in accordance with generally accepted accounting principles and duly certified by nationally recognized independent certified public accountants selected by Seller, as well as Seller's most recent unaudited financial statement and balance sheet; (b) as soon as available and in any event within 90 days after the end of each fiscal year of the Seller, an updated audited financial statement prepared in accordance with generally accepted accounting principles and duly certified by nationally recognized independent certified public accountants selected by Seller; and (c) such other financial information as the Corporation may reasonably request from time to time. Seller shall verify and reconcile Eligible Loan disbursements and cancellations of Eligible Loans sold hereunder, in such manner as the Corporation may reasonably request from time to time. Seller shall furnish to the Corporation a certificate of good standing and a certified copy of resolutions of Seller's board of directors approving and authorizing execution and performance of this Agreement and all ancillary documents with respect thereto in a form reasonably satisfactory to the Corporation.
K-18
Exhibit 4.11
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the day and year first above written.
[SELLER]
By
 Name
Title
NELNET EDUCATION LOAN FUNDING,
INC., F/K/A NEBHELP, INC.
By
 Name
Title

K-19
Exhibit 4.11
EXHIBIT A TO EXHIBIT K
LOAN TRANSFER ADDENDUM
This Loan Transfer Addendum (the "Addendum") is made and entered into as of the ___ day of ___________, _____, by and between Nelnet Education Loan Funding, Inc., f/k/a NEBHELP, INC. (the "Corporation") and _______________ (the "Seller").
WHEREAS, the parties hereto entered into that Loan Purchase Agreement dated as of ________________, ______, (the "Loan Purchase Agreement"), and the Seller wishes to sell a portfolio of Eligible Loans (as defined in the Loan Purchase Agreement) to the Corporation, pursuant to and in accordance with the terms and conditions of the Loan Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants herein contained, the parties hereto agree as follows:
Section 1. Definitions. All capitalized terms in this Addendum shall have the same meanings given to them in the Loan Purchase Agreement, unless otherwise specifically stated herein.
Section 2. Purchase of Eligible Loans. Subject to the terms and conditions of the Loan Purchase Agreement and in reliance upon the representations, warranties and covenants as set forth in the Loan Purchase Agreement, the Seller agrees to sell to the Eligible Lender Trustee, as eligible lender trustee under the [Trust] [Eligible Lender Trust] Agreement on behalf of the Corporation, a portfolio of Eligible Loans identified in the Loan Transfer Schedule attached hereto, having an aggregate outstanding principal balance of approximately $______________ (the "Current Purchase Portfolio").
Section 3. Purchase Price. Subject to the terms and conditions of the Loan Purchase Agreement, the Corporation agrees to purchase the Eligible Loans in the Current Purchase Portfolio at a purchase price equal to _____% of the aggregate unpaid principal balance thereon plus 100% of the accrued and unpaid interest thereon, each as of the Loan Purchase Date set forth in Section 4 hereof.
Section 4. Loan Purchase Date. The Loan Purchase Date shall be no later than _____________, _____.
Section 5. Representations and Warranties. The Seller hereby reconfirms all the representations and warranties set forth in the Loan Purchase Agreement as of the Loan Purchase Date set forth in Section 4 hereof.
Section 6. Effect on Loan Purchase Agreement. This Addendum sets forth the terms of purchase and sale solely with respect to the Current Purchase Portfolio. This Addendum shall have no effect upon any other sale or purchase of any Eligible Loans consummated or contemplated prior to or after the Loan Purchase Date, and all other terms, conditions and agreements contained in the Loan Purchase Agreement shall remain in full force
K-20
Exhibit 4.11
and effect. Prior or subsequent purchases and sales of Eligible Loans shall each be governed by a separate Loan Transfer Addendum.
Section 7. Special Terms. [Reserved].
[SELLER]
By
 Name
Title
NELNET EDUCATION LOAN FUNDING,
INC., F/K/A NEBHELP, INC.
By
 Name
Title

K-21
Exhibit 4.11
EXHIBIT B TO EXHIBIT K
SELLER'S CLOSING CERTIFICATE
(DO NOT COMPLETE) (the "Seller") does hereby certify that all representations, warranties and statements by or on behalf of the Seller contained in a certain Loan Purchase Agreement dated ____________________, ________ (the "Agreement"), by and between the Seller and Nelnet Education Loan Funding, Inc., f/k/a NEBHELP, INC. (the "Corporation"), are true and correct on and as of the Loan Purchase Date, without exception or qualification whatsoever;
FURTHERMORE, the Seller does hereby certify that the following documents, where applicable to each FFELP Loan (as defined in the Agreement) acquired under the Agreement, have heretofore been furnished to the Corporation or are simultaneously herewith delivered in accordance with the instructions of the Corporation, pursuant to Section 4(d) of the Agreement:
(a) Department of Education application or Guaranty Agency application, as supplemented;
(b) Interim note(s) for each Loan that is not an MPN Loan Payout note(s) for each Loan that is not an MPN Loan;
(c) Disclosure and Loan information statement;
(d) Certificate of Insurance and Contract of Insurance with respect to each Insured Loan (or certified copy thereof);
(e) Guarantee Agreement, Agreement for Participation in the Guaranteed Loan Program and Notification of Loan;
(f) Approval by the Guaranty Agency with respect to each Guaranteed Loan (or certified copy thereof);
(g) Any other documentation held by the Seller relating to the history of such Eligible Loan;
(h) Secretary of Education and Guaranty Agency Loan Transfer Statements;
(i) Uniform Commercial Code financing statement, if any, securing any interest in an Eligible Loan to be Financed, and an executed termination statement related thereto; and
(j) Evidence of Loan disbursement Any other document required to be submitted with a claim to the Guaranty Agency.
K-22
Exhibit 4.11
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be executed and delivered by an officer hereunto duly authorized as of the Loan Purchase Date, __________.
NAME OF SELLER
[DO NOT COMPLETE]
By
 [DO NOT SIGN]
 Title
 [DO NOT SIGN]

K-23
Exhibit 4.11
EXHIBIT C TO EXHIBIT K
BLANKET ENDORSEMENT OF
STUDENT LOAN PROMISSORY NOTES
Pursuant to the Loan Purchase Agreement dated __________, the undersigned ("Seller"), by execution of this instrument, hereby endorses all promissory notes purchased by Wells Fargo Bank Minnesota, National Association, as eligible lender trustee (the "Eligible Lender Trustee") under [Trust Agreement between the Eligible Lender Trustee and Nelnet Education Loan Funding, Inc., f/k/a NEBHELP, INC. (the "Corporation")]. This endorsement is in blank, unrestricted form. This endorsement is without recourse, except as provided under the terms of the Loan Purchase Agreement. All right, title, and interest of Seller in and to the promissory notes and related documentation identified in the attached loan ledger are transferred and assigned to Eligible Lender Trustee on behalf of the Corporation.
This endorsement may be further manifested by attaching this instrument or a facsimile hereof to each or any of the Promissory Notes and related documentation acquired by the Eligible Lender Trustee on behalf of the Corporation from Seller, or by attaching this instrument to the loan ledger schedule, as the Corporation may require or deem necessary.
Dated this ___ day of ______________, _____.
NAME OF SELLER
[DO NOT COMPLETE]
By
 [DO NOT SIGN] [SIGNATURE OF
AUTHORIZED OFFICER OF SELLER]

K-24
Exhibit 4.11
EXHIBIT D TO EXHIBIT K
BILL OF SALE
FOR VALUE RECEIVED, ________________________ (the "Seller"), pursuant to the terms and conditions of that certain Loan Purchase Agreement dated as of ___________, _____ (the "Agreement") between the Seller and Nelnet Education Loan Funding, Inc., f/k/a NEBHELP, INC. (the "Corporation") does hereby grant, sell, assign, transfer and convey to Wells Fargo Bank Minnesota, National Association, solely in its capacity as eligible lender trustee (the "Eligible Lender Trustee") on behalf of the Corporation and its successors and assigns, all right, title and interest of the Seller in and to the following:
1. The loans described in Annex I attached hereto (the "Loans"), including the guarantee of the Loans issued by a Guaranty Agency pursuant to the Federal Family Education Loan Program (20 U.S.C. ss. 1071 et seq.);
2. All promissory notes and related documentation evidencing the indebtedness represented by such Loans; and
3. All proceeds of the foregoing including, without limitation, all payments made by the obligor thereunder or with respect thereto, all guarantee payments made by any Guaranty Agency with respect thereto, and all interest benefit payments and special allowance payments with respect thereto made under Title IV, Part B, of the Higher Education Act of 1965, as amended, and all rights to receive such payments, but excluding any proceeds of the sale made hereby.
TO HAVE AND TO HOLD the same unto the Eligible Lender Trustee on behalf of the Corporation, its successors and assigns, forever. This Bill of Sale is made pursuant to and is subject to the terms and provisions of the Agreement, and is without recourse, except as provided in the Agreement.
IN WITNESS WHEREOF, the Seller has caused this instrument to be executed by one of its officers duly authorized to be effective as of the ____ day of ______, _____.
[NAME OF SELLER]
By
 Name
Title

K-25
Exhibit 4.11
EXHIBIT E TO EXHIBIT K
REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS OF SELLER
1. Any information furnished by the Seller to the Corporation, or the Corporation's agents with respect to a FFELP Loan, including the Loan Transfer Schedule attached to the Loan Transfer Addendum, is true, complete and correct.
2. The amount of the unpaid principal balance of each FFELP Loan is due and owing, and no counterclaim, offset, defense or right to rescission exists with respect to any FFELP Loan which can be asserted and maintained or which, with notice, lapse of time or the occurrence or failure to occur of any act or event could be asserted and maintained by the Borrower against the Eligible Lender Trustee or the Corporation as assignee thereof. The Seller shall have taken all reasonable actions to assure that no maker of a FFELP Loan has or may acquire a defense to the payment thereof. No payment of principal or interest with respect to any FFELP Loan is, as of the date hereof, more than 60 days delinquent and no applicable payment of principal or interest with respect to any FFELP Loan will, at the applicable Loan Purchase Date, be more than 60 days delinquent. No FFELP Loan carries a rate of interest less than, or in excess of, the applicable rate of interest required by the Higher Education Act. If the Higher Education Act permits Sellers to charge an interest rate less than the applicable rate of interest, no FFELP Loan purchased hereunder bears interest at a rate lower than the applicable rate of interest; provided, however, that the Corporation may approve, in its sole discretion, in writing, interest reductions which are part of a borrower repayment incentive program of Seller, the terms of which have been fully described in detail and in writing to the Corporation.
3. Each FFELP Loan has been duly executed and delivered and constitutes the legal, valid and binding obligations of the maker (and the endorser, if any) thereof, enforceable in accordance with its terms.
4. Each FFELP Loan complies in all respects with the requirements of the Higher Education Act and the Loan Purchase Regulations and is an Eligible Loan, as that term is defined in the Loan Purchase Agreement.
5. The Seller or Seller's eligible lender trustee has applied for and received the Secretary of Education's or a Guaranty Agency's designation, as the case may be, as an "Eligible Lender" under the Higher Education Act, and the Seller has entered into all agreements required to be entered into for participation in the Federal Family Education Loan Program under the Higher Education Act.
6. The Seller and the Seller's eligible lender trustee on behalf of Seller is the sole owner and holder of each FFELP Loan and has full right and authority to sell and assign the same free and clear of all liens, pledges or encumbrances; no FFELP Loan has been pledged or assigned for any purpose; and each FFELP Loan is free of any and all liens, charges, encumbrances and security interests of any description. The Corporation has a valid and perfected first priority security interest in the Pledged Collateral.
K-26
Exhibit 4.11
7. Each FFELP Loan is either Insured or Guaranteed; such Insurance or Guarantee, as the case may be, is in full force and effect, is freely transferable as an incident to the sale of each FFELP Loan; all amounts due and payable to the Secretary of Education or a Guaranty Agency, as the case may be, have been or will be paid in full by the Seller, and none of the FFELP Loans has at any time been tendered to either the Secretary of Education or any Guaranty Agency for payment.
8. There are no circumstances or conditions with respect to any FFELP Loan, the Borrower thereunder or the creditworthiness of said Borrower that would reasonably cause prudent private investors to regard any of the FFELP Loans as an unacceptable investment, or adversely affect the value or marketability thereof, the insurance thereof and any applicable Guarantee.
9. Each FFELP Loan was made in compliance with all applicable local, State and federal laws, rules and regulations, including, without limitation, all applicable nondiscrimination, truth in lending, consumer credit and usury laws.
10. The Seller has carefully reviewed the Loan Purchase Regulations supplied by the Corporation and has complied with the Loan Purchase Regulations.
11. The FFELP Loans pursuant to the Agreement include all Eligible Loans of any one Borrower held by the Seller.
12. The Seller has, and its officers acting on its behalf have, full legal authority to engage in the transactions contemplated by the Loan Purchase Agreement; the execution and delivery of the Loan Purchase Agreement, the consummation of the transactions herein contemplated and compliance with the terms, conditions and provisions of the Loan Purchase Agreement do not and will not conflict with or result in a breach of any of the terms, conditions or provisions of the charter, articles or bylaws of the Seller or any agreement or instrument to which the Seller is a party or by which it is bound or constitute a default thereunder; the Seller is not a party to or bound by any agreement or instrument or subject to any charter or other corporation restriction or judgment, order, writ, injunction, decree, law, rule or regulation which may materially and adversely affect the ability of the Seller to perform its obligations under the Loan Purchase Agreement and the Loan Purchase Agreement constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its terms, and no consent, approval or authorization of any government or governmental body, including, without limitation, the Federal Savings and Loan Insurance Corporation, the Federal Deposit Insurance Corporation, the Comptroller of the Currency, the Board of Governors of the Federal Reserve System or any state bank regulatory agency, is required in connection with the consummation of the transactions herein contemplated.
13. The Seller is duly organized, validly existing and in good standing under the laws of its applicable jurisdiction and has the power and authority to own its assets and carry on its business as now being conducted.
14. The Seller and any independent servicer have each exercised due diligence and reasonable care in making, administering, servicing and collecting the FFELP Loans, and the
K-27
Exhibit 4.11
Seller has conducted a reasonable investigation of sufficient scope and content to enable it duly to make the representations and warranties contained in this Exhibit E. The Seller shall be solely responsible for the payment of the costs and expenses incident to origination of FFELP Loans, without any right of reimbursement therefor from the Corporation.
15. With respect to all Insured Eligible Loans being acquired, Insurance is in effect with respect thereto; the applicable Contract and Certificates of Insurance are valid and binding upon the parties thereto in all respects material to the security for any bonds and/or notes issued by the Corporation; and the Seller is not in default in the performance of any of its covenants and agreements made in respect thereof.
16. With respect to all Guaranteed Eligible Loans being acquired, a Guarantee Agreement is in effect with respect thereto and is valid and binding upon the parties thereto in all respects material to the security of the bonds and/or notes issued by the Corporation to finance the FFELP Loans; and the Seller is not in default in the performance of any of its covenants and agreements made in such Guarantee Agreement.
17. The Seller does not (a) discriminate by pattern or practice against any particular class or category of students by requiring, as a condition to the receipt of a student loan, that a student or his family maintain a business relationship with the Seller, except as may be permitted under applicable laws; or (b) discriminate on the basis of race, sex, color, creed or national origin.
18. The FFELP Loans are a representative sample of all student loans held by the Seller with respect to the educational institution attended by, or the age, sex, race, national origin or place of residence of, the Borrower to whom such loans were made, or with respect to any other identifying characteristic of such Borrowers.
19. Each instrument transferred to the Corporation under the Loan Purchase Agreement is a FFELP Loan which constitutes an Eligible Loan.
20. No promissory note evidencing an Eligible Loan bears any apparent evidence of forgery or alteration or is otherwise so irregular or incomplete as to call into question its authenticity.
21. Except as may have been disclosed by the UCC lien search required by Section 4(f) hereof for the Seller, no other financing statements or assignment filings naming the Seller as debtor or assignor under its legal name or trade names has been filed.
22. The fair salable value of the assets on a going concern basis of the Seller and its subsidiaries, on a consolidated basis, as of the time of each sale of FFELP Loans hereunder is in excess of the total amount of their liabilities.
K-28
Exhibit 4.11
EXHIBIT F TO EXHIBIT K
ACKNOWLEDGMENT
The assignment of the within promissory note and related documents to (DO NOT COMPLETE) under a Loan Purchase Agreement between ____________________ and ____________________, dated as of ____________________, _____, did not become effective thereunder, and no rights in the same have been conveyed thereby.
Dated: [DO NOT COMPLETE]

K-29
 
Exhibit 10.56
February 20, 2004
Deutsche Bank AG, New York Branch
60 Wall Street, 19th Floor
New York, NY 10005
Ladies and Gentlemen:
Pursuant to Section 2.03 of the Warehouse Note Purchase and Security Agreement, dated as of May 1, 2003 (as amended, the "Warehouse Note Purchase and Security Agreement"), among Nelnet Education Loan Funding, Inc. (the "Borrower"), Wells Fargo Bank Minnesota, National Association, as trustee, Wells Fargo Bank Minnesota, National Association, as eligible lender trustee, YC SUSI Trust, as a conduit lender, Bank of America, N.A., as a facility agent and an alternate lender, Gemini Securitization Corp., as a conduit lender, Deutsche Bank AG, New York Branch, as a facility agent and an alternate lender, Barton Capital Corporation, as a conduit lender, Societe Generale, as a facility agent and an alternate lender, and Bank of America, N.A., as administrative agent, the Borrower hereby request that the Deutsche Bank Facility Group increase its Commitment under the Warehouse Note Purchase and Security Agreement from $350,000,000 to $600,000,000 effective on March 1, 2004. Please acknowledge your acceptance, as the Deutsche Bank Facility Agent on behalf of the Deutsche Bank Facility Group, of this increase in the Commitment of Deutsche Bank AG, New York Branch, as Alternate Lender, for the Deutsche Bank Facility Group by executing and returning this letter to us. Your execution of this letter shall constitute the written evidence that the Deutsche Bank Facility Group has agreed to increase its Commitment pursuant to Section 2.03 of the Warehouse Note Purchase and Security Agreement.
On the effective date of such increase, being March 1, 2004, the Borrower will provide Deutsche Bank AG, New York Branch, as the Deutsche Bank Facility Agent, with a replacement Senior Note in the maximum principal amount of $570,000,000 and a replacement Subordinate Note in the maximum principal amount of $30,000,000 in exchange for the existing Senior Note and Subordinate Note issued to the Deutsche Bank Facility Group.
Capitalized terms used in this letter and not defined herein shall have the meanings assigned to such terms in the Warehouse Note Purchase and Security Agreement.
Very truly yours,
NELNET EDUCATION LOAN FUNDING, INC.

By  /s/ Terry J. Heimes
    ----------------------------------
    Terry J. Heimes, President	

ACCEPTED AND AGREED TO:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Deutsche Bank Facility Agent

By /s/ David McCollum
  --------------------------------

Title:  /s/ Managing Director
        --------------------------

By /s/ Stanley Chao
   -------------------------------

Title:  /s/ Vice President
        --------------------------	

cc: Wells Fargo Bank Minnesota, National Association 6th and Marquette Avenue
Minneapolis, Minnesota 55479-0069 Attn: Corporate Trust Department
2
 
Exhibit 10.57
February 20, 2004
Bank of America, N.A., as
Bank of America Facility Agent
The Hearst Tower
214 N. Tryon Street
NC1-027-19-01
Charlotte, NC 28255
Attn: Banc of America Securities, LLC, Global Structured Finance; Portfolio Management
Ladies and Gentlemen:
Pursuant to Section 2.03 of the Warehouse Note Purchase and Security Agreement, dated as of May 1, 2003 (as amended, the "Warehouse Note Purchase and Security Agreement"), among Nelnet Education Loan Funding, Inc. (the "Borrower"), Wells Fargo Bank Minnesota, National Association, as trustee, Wells Fargo Bank Minnesota, National Association, as eligible lender trustee, YC SUSI Trust, as a conduit lender, Bank of America, N.A., as a facility agent and an alternate lender, Gemini Securitization Corp., as a conduit lender, Deutsche Bank AG, New York Branch, as a facility agent and an alternate lender, Barton Capital Corporation, as a conduit lender, Societe Generale, as a facility agent and an alternate lender, and Bank of America, N.A., as administrative agent, the Borrower hereby request that the Bank of America Facility Group increase its Commitment under the Warehouse Note Purchase and Security Agreement from $350,000,000 to $600,000,000 effective on March 1, 2004. Please acknowledge your acceptance, as the Bank of America Facility Agent on behalf of the Bank of America Facility Group, of this increase in the Commitment of Bank of America, N.A., as Alternate Lender, for the Bank of America Facility Group by executing and returning this letter to us. Your execution of this letter shall constitute the written evidence that the Bank of America Facility Group has agreed to increase its Commitment pursuant to Section 2.03 of the Warehouse Note Purchase and Security Agreement.
On the effective date of such increase, being March 1, 2004, the Borrower will provide Bank of America, N.A., as the Bank of America Facility Agent, with a replacement Senior Note in the maximum principal amount of $570,000,000 and a replacement Subordinate Note in the maximum principal amount of $30,000,000 in exchange for the existing Senior Note and Subordinate Note issued to the Bank of America Facility Group.
Capitalized terms used in this letter and not defined herein shall have the meanings assigned to such terms in the Warehouse Note Purchase and Security Agreement.
Very truly yours,
NELNET EDUCATION LOAN FUNDING, INC.

By  /s/ Terry J. Heimes
    -----------------------------------
    Terry J. Heimes, President	

ACCEPTED AND AGREED TO:
BANK OF AMERICA, N.A.,
as Bank of America Facility Agent

By /s/ Shelley Harper
   -------------------------------
Title:  /s/ Principal
        --------------------------

cc:      Wells Fargo Bank Minnesota, National Association
         6th and Marquette Avenue
         Minneapolis, Minnesota  55479-0069
         Attn: Corporate Trust Department	

2
 
Exhibit 10.58
February 20, 2004
Societe Generale
181 West Madison Street
Suite 3400
Chicago, IL 60602
Attn: Securitization
Ladies and Gentlemen:
Pursuant to Section 2.03 of the Warehouse Note Purchase and Security Agreement, dated as of May 1, 2003 (as amended, the "Warehouse Note Purchase and Security Agreement"), among Nelnet Education Loan Funding, Inc. (the "Borrower"), Wells Fargo Bank Minnesota, National Association, as trustee, Wells Fargo Bank Minnesota, National Association, as eligible lender trustee, YC SUSI Trust, as a conduit lender, Bank of America, N.A., as a facility agent and an alternate lender, Gemini Securitization Corp., as a conduit lender, Deutsche Bank AG, New York Branch, as a facility agent and an alternate lender, Barton Capital Corporation, as a conduit lender, Societe Generale, as a facility agent and an alternate lender, and Bank of America, N.A., as administrative agent, the Borrower hereby request that the Societe Generale Facility Group increase its Commitment under the Warehouse Note Purchase and Security Agreement from $350,000,000 to $600,000,000 effective on March 1, 2004. Please acknowledge your acceptance, as the Societe Generale Facility Agent on behalf of the Societe Generale Facility Group, of this increase in the Commitment of Societe Generale, as Alternate Lender, for the Societe Generale Facility Group by executing and returning this letter to us. Your execution of this letter shall constitute the written evidence that the Societe Generale Facility Group has agreed to increase its Commitment pursuant to Section 2.03 of the Warehouse Note Purchase and Security Agreement.
On the effective date of such increase, being March 1, 2004, the Borrower will provide Societe Generale, as the Societe Generale Facility Agent, with a replacement Senior Note in the maximum principal amount of $570,000,000 and a replacement Subordinate Note in the maximum principal amount of $30,000,000 in exchange for the existing Senior Note and Subordinate Note issued to the Societe Generale Facility Group.
Capitalized terms used in this letter and not defined herein shall have the meanings assigned to such terms in the Warehouse Note Purchase and Security Agreement.
Very truly yours,
NELNET EDUCATION LOAN FUNDING, INC.

By  /s/ Terry J. Heimes
    --------------------------------
    Terry J. Heimes, President	

ACCEPTED AND AGREED TO:
SOCIETE GENERALE,
as Societe Generale Facility Agent

By /s/ Paul Schmeider
   -------------------------------

Title:  /s/ Director
        --------------------------

cc:      Wells Fargo Bank Minnesota, National Association
         6th and Marquette Avenue
         Minneapolis, Minnesota  55479-0069
         Attn: Corporate Trust Department	

Societe Generale
1221 Avenue of the Americas
New York, NY 10020
Attn: Paul Schmieder
2
 
Exhibit 10.59
Lease Assignment and Assumption Agreement
This Lease Assignment and Assumption Agreement ("Agreement") is entered into between MES - Maine Education Services. ("MES") as assignor and Nelnet Corporate Services, Inc. ("Nelnet") as assignee, with the consent of One City Center Associates ("Landlord"), and is effective as of the 1st day of February, 2004.
WHEREAS, Landlord and MES are parties to that certain "One City Center Office Lease Agreement" (the "Lease") dated as of January 1, 2000, whereby MES leases the 11th floor of One City Center, Portland, Maine. A copy of the Lease is attached as Exhibit A and incorporated herein by this reference; and,
WHEREAS, MES wishes to assign its rights and obligations under the aforementioned Lease to Nelnet; and,
WHEREAS, Nelnet is willing to accept such assignment and assume such rights and obligations; and,
WHEREAS, Landlord consents to such assignment and assumption;
NOW, THEREFORE, in consideration of the terms and conditions of this Assignment and Assumption Agreement, the parties agree as follows:
1. Assignment. Pursuant to Article 13 of the Lease, MES may assign the Lease with Landlord's consent. Accordingly, MES hereby assigns all right, title and interest in and to the Lease to Nelnet.
2. Assumption. Nelnet has received a copy of the Lease and agrees to assume and undertake payment of rent and all other obligations of MES thereunder as of the effective date of this Agreement, for the benefit of Landlord and MES.
3. Consent. Landlord hereby expressly consents to the assignment and assumption contemplated by this Agreement. A copy of Landlord's written consent is attached hereto and incorporated herein as Exhibit "B".
4. Sublease. The existing Sublease between MES and Johnson & McCaa LLC, dated as of October 22, 2001 shall remain in effect between those parties, subordinate to Nelnet's rights as Tenant under the Lease.
5. Binding Authority. This Agreement is binding on all successors who lawfully succeed to the rights or take the place of MES, Nelnet or Landlord.
1
Exhibit 10.59
WHEREFORE, the parties have executed this Agreement below as of the date first written above.
MES - Maine Education Services, Assignor

By:  /s/ Darren J. Hurlburt
     ---------------------------------------

Name:      /s/ Darren J. Hurlburt
           ---------------------------------

Title:     /s/ Vice President/Secretary
           ---------------------------------	

NELNET CORPORATE SERVICES, INC., Assignee

By:  /s/ Edward P. Martinez
     ---------------------------------------

Name:      /s/ Edward P. Martinez
           ---------------------------------

Title:     /s/ Executive Director, Secretary
           ---------------------------------	

2
 
Exhibit 10.60
OPERATING AGREEMENT FOR
PREMIERE CREDIT OF NORTH AMERICA, LLC
AN INDIANA LIMITED LIABILITY COMPANY
Table of Contents
EXPLANATORY STATEMENT
DEFINITIONS
A. "Agreement"
B. "Bankruptcy"
C. "Company"
D. "Dissolution"
E. "Expulsion"
F. "Member"
G. "Membership Interest"
H. "Membership Rights"
I. "Persons"
J. "Resignation"
K. "Retirement"
Section 1. Articles of Organization
Section 2. Term of This Agreement
Section 3. Contributions
3.1 Original Contributions
3.2 Capital Accounts
3.3 Liability for Contributions
3.4 Compromise of a Member's Liability
3.5 Additional Contributions
Section 4. Profit and Loss
4.1 Allocation of Profits and Losses
4.2 Allocation of Taxable Items
4.3 Special Allocations of Income
4.4 Other Allocation Rules
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Exhibit 10.60
Section 5. Distributions of Cash
Section 6. Distributions upon Resignation
Section 7. Distributions in Kind
Section 8. Management of the Company
8.1 Management by David A. Hoeft, Todd J. Wolfe and the Managers
8.2 Replacement of Manager
8.3 Rights Upon Additional Ownership
8.4 Duties of Managers
8.5 Certain Powers of Managers
8.6 Number of Managers
8.7 Regular Meetings
8.8 Special Meetings
8.9 Notice
8.10 Quorum
8.11 Manner of Acting
8.12 Informal Action by Managers
8.13 Participation by Electronic Means
8.14 Resignation
8.15 Removal
8.16 Committees
8.17 Compensation
8.18 Presumption of Assent
8.19 Transactions with Company and Otherwise
Section 9. Voting Trust
Section 10. Members
10.1 l Members
10.2 Admission of New Members
10.3 Annual Meeting
10.4 Special Meetings
10.5 Place of Meetings
10.6 Notice of Meetings
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                                                          Exhibit 10.60

10.7     Meeting of all Members
10.8     Quorum
10.9     Manner of Acting
10.10    Proxies
10.11    Voting by Certain Members
10.12    Action by Members Without a Meeting
10.13    Voting by Ballot
10.14    Waiver of Notice	

Section 11. Banking
Section 12. Books; Fiscal Year; Audits
Section 13. Membership Interest and Membership Rights of a Deceased, Incompetent, or Dissolved Member
Section 14. Transfer of Membership Interest and Membership Rights
14.1 Call Option
14.2 Put Option
14.3 Process for Exercise of Call and Put
14.4 Offer to Purchase ("Cherry Pie")
14.5 Rights of Refusal
Section 15. Expulsion of a Member
15.1 Right of Members to Expel
15.2 Voting Requirements for Expulsion of Members
15.3 Consequences of Cessation of Membership
15.4 Right of Company to Require Certain Former Members to Sell their Company Interests to Company
Section 16. Death, Bankruptcy, Retirement, or Resignation of a Member
16.1 Purchase of Membership Interest
16.2 Consequences of Bankruptcy, Retirement or Resignation
Section 17. Certain Tax Aspects Incident to Transactions Contemplated by This Agreement
-iii-
Exhibit 10.60
Section 18. The Member's Value
Section 19. Delivery of Evidence of Interest
Section 20. Notices
Section 21. Additional Members
Section 22. Dissolution and Termination
22.1 Dissolution
22.2 Filing of Statement of Intent to Dissolve
22.3 Effect of Filing of Dissolving Statement
22.4 Distribution of Assets upon Dissolution
22.5 Articles of Dissolution
22.6 Filing of Articles of Dissolution
22.7 Managers' Responsibility
Section 23. Power of Attorney
Section 24. Governing Law
Section 25 Miscellaneous Provisions

25.1     Inurnment
25.2     No Limit on Personal Activities
25.3     Further Assurances
25.4     Gender and Headings
25.5     Entire Agreement
25.6     Severability
25.7     Waiver of Action for Partition
25.8     Amendments
25.9     Execution of Additional Instruments
25.10    Title to Company Properties
25.11    Company Interests
25.12    Waivers
25.13    Rights and Remedies Cumulative
25.14    Legend on Certificates
25.15    Company Seal
25.16    Arbitration

                             -iv-	

                                                          Exhibit 10.60

25.17    Not for Benefit of Creditors	

CERTIFICATE
-v-
Exhibit 10.60
OPERATING AGREEMENT FOR
PREMIERE CREDIT OF NORTH AMERICA, LLC
AN INDIANA LIMITED LIABILITY COMPANY
THIS OPERATING AGREEMENT is effective as of this 28 day of January 2004, (the "Effective Date") by and among the members of PREMIERE CREDIT OF NORTH AMERICA, LLC, an Indiana Limited Liability Company (the "Company"), who have signed this Operating Agreement and a Subscription Agreement agreeing to be obligated by the terms of this Operating Agreement.
Explanatory Statement
This Operating Agreement governs the relationship among members of the Company and between the Company and the members, pursuant to the Indiana Business Flexibility Act, as amended from time to time (the "Act").
In consideration of their mutual promises, covenants, and agreements, the parties hereto do hereby promise, covenant, and agree as follows:
Definitions
Throughout this Operating Agreement, and unless the context otherwise requires, the word or words set forth below within the quotation marks shall be deemed to mean the words which follow them:
A. "Agreement" This Operating Agreement.
B. "Bankruptcy" The filing by a Member of a petition commencing a voluntary case under the Bankruptcy Code; a general assignment by a Member for the benefit of creditors; an admission in writing by a Member of his inability to pay his debts as they become due; the filing by a Member of any petition or answer in any proceeding seeking for himself, or consenting to, or acquiescing in, any insolvency, receivership, composition, readjustment, liquidation, dissolution, or similar relief under any present or future statute, law, or regulation, or the filing by a Member of an answer or other pleading admitting or failing to deny, or to contest, the material allegations of the petition filed against him in any such proceeding; the seeking or consenting to, or acquiescence by a Member in, the appointment of any trustee, receiver, or liquidator of him, or any part of his property; and the commencement against a Member of an involuntary case under the Bankruptcy Code, or a proceeding under any receivership, composition, readjustment, liquidation, insolvency, dissolution, or like law or statute, which case or proceeding is not dismissed or vacated within 60 days.
Exhibit 10.60
C. "Company" PREMIERE CREDIT OF NORTH AMERICA, LLC, an Indiana Limited Liability Company.
D. "Dissolution" (1) in the case of a Member who is acting as a Member by virtue of being a trustee of a trust, the termination of the trust (but not merely the substitution of a new trustee); (2) in the case of a Member that is a partnership, the dissolution and commencement of winding up of the partnership;
(3) in the case of a Member that is a corporation, the filing of a certificate of dissolution, or its equivalent, for the corporation or the revocation of its charter; (4) in the case of a limited liability company, the filing of articles of dissolution, or its equivalent, for the limited liability company, or the involuntary dissolution by a nonappealable order of the district court; or (5) in the case of an estate, the distribution by the fiduciary of the estate's entire Membership Interest.
E. "Expulsion" The final decision of expulsion of a Member as provided in this Operating Agreement.
F. "Member" Each of the persons signatory hereto by signing either this Agreement or a Subscription Agreement agreeing to be obligated by the terms of this Agreement, and any other person or persons who may subsequently be designated as a Member of this Company pursuant to the further terms of this Agreement.
G. "Membership Interest" The share of profits and losses, gains, deductions, credits, cash, assets, and other distributions of a Member.
H. "Membership Rights" The rights of a Member which are comprised of a Member's" (1) Membership Interest, and (2) right to participate in the management of the Company.
I. "Persons" Individuals, partnerships, corporations, limited liability companies, unincorporated associations, trusts, estates, and any other type of entity.
J. "Resignation" The decision or determination of a Member to no longer continue as a Member, upon written notice to the Company.
K. "Retirement" The withdrawal from the Company upon such terms and events as are provided in this Operating Agreement, which will permit withdrawal of a Member without violating or breaching the terms of this Operating Agreement.
-2-
Exhibit 10.60
Section 1. Articles of Organization.
The Articles of Organization of this Company, as they may be amended from time to time by the members, are hereby adopted and incorporated by reference in this Operating Agreement. In the event of any inconsistency between the Articles of organization and this Operating Agreement, the terms of the Articles of Organization shall govern.
The purposes for which the Company is formed are: to own and collect certain debts and, specifically student loans, and any and all other business that LLC's may conduct under the Act.
Section 2. Term of This Agreement.
The term of this Operating Agreement shall be co-terminus with the term of the Company. This Operating Agreement shall terminate upon the voluntary or involuntary dissolution of the Company or the expiration of its term as provided in the Articles of Organization.
Section 3. Contributions.
3.1 Original Contributions. The original capital contributions to the Company of each of the Members shall be made in accordance with their respective Subscription Agreements, which shall be effective with their respective execution and delivery of the Subscription Agreements, the terms of which are hereby incorporated by reference as if fully set forth herein.
3.2 Capital Accounts.
A separate capital account ("Capital Account") will be maintained for each Member in accordance with section 704(b) of the Internal Revenue Code ("Code") and Treasury Regulations section 1.703-1(b)(2)(iv). Each Member's Capital Account will be increased by (1) the amount of money contributed by him to the Company; (2) the fair market value of property contributed by him to the Company (net of liabilities secured by such contributed property that the Company is considered to assume or take subject to under section 752 of the Code); and (3) allocations to him of income and gain as set forth in such Regulations, taking into account adjustments to reflect book value. Each Member's Capital Account will be decreased by (1) the amount of money distributed to him by the Company; (2) the fair market value of property distributed to him by the Company (net of liabilities secured by such distributed property that he is considered to assume or take subject to under section 752 of the Code); (3) allocations to him of expenditures described in section 705(a)(2)(B) of the Code; and (4) allocations to the account of Company loss and deduction as set forth in such Regulations, taking into account adjustments to reflect a book value.
In the event of a permitted sale or exchange of a Membership Interest in the Company, the Capital Account of the transferor shall become the Capital Account of the transferee to the extent it relates to the transferred Interest. The parties acknowledge however that such action will not impact the tax basis of the transferor.
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Exhibit 10.60
The manner in which Capital Accounts are to be maintained pursuant to this Section 3.2 is intended to comply with the requirements of Code section 704(b) and the Treasury Regulations promulgated thereunder. If in the opinion of the Managers the manner in which Capital Accounts are to be maintained pursuant to the preceding provisions of this Section 3.2 should be modified in order to comply with Code Section 704(b) and the Treasury Regulations thereunder, then notwithstanding anything to the contrary contained in the preceding provisions of this Section 3.2, the Managers may alter the method in which Capital Accounts are maintained, and the Managers shall have the right to amend this Agreement without action by the Members to reflect any such change in the manner in which Capital Accounts are maintained; provided, however, that any change in the manner of maintaining Capital Accounts shall not materially alter the economic agreement between or among the members.
Upon liquidation of the Company (or any Member's Membership Interest), liquidating distributions will be calculated in accordance with the positive Capital Account balances of the Members, as determined after taking into account all Capital Account adjustments for the Company's taxable year during which the liquidation occurs. Liquidation proceeds will be paid to all Members (upon liquidation of the Company) or to the liquidating Member (if the Company elects to continue its business) within 60 days of the end of the taxable year (or, if later, within 90 days after the date of the liquidation).
If any Member has a deficit balance in his Capital Account following the liquidation of his interest in the Company, as determined after taking into account all Capital Account adjustments for the Company's taxable year during which the liquidation occurs, upon being so notified and requested by the Company, he is unconditionally obligated to restore the amount of such deficit balance to the Company within 60 days of the end of the taxable year (or, if later, within 90 days after the date of such liquidation).
3.3 Liability for Contributions. Each Member is obligated to the Company to perform his Subscription Agreement and any other promise contained in this Operating Agreement to contribute cash or property or perform services, even if he is unable to perform because of death, disability, or any other reason. If a Member does not make the contribution required by the Subscription Agreement or this Operating Agreement, the Member is obligated at the option of the Company to contribute cash equal to that portion of the value, as stated in the Subscription Agreement, or such contribution that has not been made.
3.4 Compromise of a Member's Liability. The obligation of a Member to make a contribution to the Company may be compromised only by a consent in writing of all of the Members of the Company.
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Exhibit 10.60
3.5 Additional Contributions. No addition capital contributions must be made by the Members.
Section 4. Profit and Loss.
4.1 Allocation of Profits and Losses. The percentages of Membership Rights and Membership Interests of each of the Members in the Company as of the effective date of this Agreement shall be as follows and as stated on Exhibit A.

Member            Membership Interest

Nelnet, Inc.              50%
Todd J. Wolfe             25.15
David A. Hoeft            18.85
Tina D. Mercer            6.0	

Additional contributions by the Members provided for in
Section 3.5 of this Agreement shall not alter the allocations of profits and losses provided immediately above and shall not constitute loans to the Company, but may constitute additional contributions by each such Member for tax computation purposes if such treatment is required by applicable tax laws and regulations.
4.2 Allocation of Taxable Items Unless otherwise determined in accordance with Section 4.3 hereof, the Company's profits or losses for any fiscal year shall be allocated among the Members in accordance with their respective Membership Interests.
4.3 Special Allocations of Income - Income of the Company shall be allocated among the Members on such basis and in such proportion as the Members may from time to time agree and may be on a basis and in amounts at variance with their respective Membership interests.
4.4 Other Allocation Rules -
(a) To determine the profits, losses, or any other items allocable to any period, profits, losses, and any such other items shall be determined on a daily, monthly, or other basis, as determined by the Managers, using any permissible method under Internal Revenue Code Section 706 and the Regulations thereunder.
(b) The Members are aware of the income tax consequences of the allocations made by this section 4.2 and hereby agree to be bound by the provisions of this section 4.2 in reporting their shares of Company income and loss for income tax purposes.
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Exhibit 10.60
Section 5. Distributions.of Cash.
Distributions shall be distributed at such times and in such amounts as may be determined by Todd J. Wolfe and David A. Hoeft, as they may determine in their sole discretion, among all of the Members in accordance with their respective Membership Interests on the date of the distribution.
Section 6. Distributions upon Resignation.
Upon resignation of a Member, the resigning Member shall be entitled to receive only the distributions to which he is entitled under this Operating Agreement, as provided in Section 16.
Section 7. Distributions in Kind.
A Member, regardless of the nature of his contribution, has no right to demand and receive any distribution from the Company in any form other than cash. A Member shall not be required to accept in-kind distributions to the extent that the percentage of each asset distributed to him exceeds the percentage which is equal to the percentage in which he shares in distributions pursuant which is equal to the percentage in which he shares in distributions pursuant to Section 5.1.
Section 8. Management of the Company.
8.1 Management by David A. Hoeft, Todd J. Wolfe and the Managers. So long as they collectively own (a) at least thirty-five percent (35%) of the Interests of the Company if the reduction in their Interests of the Company is due to their exercise of the Put (as defined in Section 14 below) or (b) at least twenty percent (20%) of the Interests of the Company if the reduction in their Interests is due to Nelnet's exercise of the Call (as defined in Section 14 below), Hoeft and Wolfe shall be responsible for the day to day operations of the Company Business, including employment decisions (other than with respect to their own employment), operations decisions, and policy decisions. The Managing Board shall consist of four members, shall meet on at least a quarterly basis and shall oversee the Company Business with the authority of a Board of Managers under the Indiana Business Flexibility Act as amended. The initial members of the Managing Board are: Cheryl Watson and Chuck Hosea on behalf of Nelnet; Hoeft and Wolfe. Approval of the Managing Board will be required for any expenditure in excess of two hundred fifty thousand dollars ($250,000), and such approval shall require the affirmative vote of three of the Managing Board members. Should any member of the Managing Board be removed, resign or otherwise cease to participate thereon, said member shall be replaced as set forth in Section 8.2 below, except as provided in Section 8.3 below.
8.2 Replacement of Managers.
8.2.1 Except as provided in Section 8.3 below, if a member of the Managing Board representing Nelnet is removed, resigns or otherwise ceases to
-6-
Exhibit 10.60
participate, Nelnet shall propose a replacement member, whose appointment shall be approved by the majority of the Managing Board, such approval not to be unreasonably withheld. For any period in which Nelnet has only one member of the Managing Board said member shall represent both of Nelnet's votes on the Managing Board.
8.2.2 Except as provided in Section 8.3 below, if Hoeft or Wolfe is removed, resigns or otherwise ceases to participate, the other of Hoeft or Wolfe shall propose a replacement member, whose appointment shall be approved by the majority of the Managing Board, such approval not to be unreasonably withheld. For any period in which only Hoeft or Wolfe remains on the Managing Board with Nelnet's representatives, said member shall represent two votes on the Managing Board.
8.3 Rights Upon Additional Ownership. If at any time under this Agreement, either (a) Nelnet or (b) all non-Nelnet members in the aggregate, (either (a) or (b) hereafter referred to for purposes of this Section as "the Majority"):
8.3.1 Owns eighty percent (80%) of the Interests of the Company, the Majority shall be entitled to have three of the four representatives on the Managing Board representing it and in such case shall be entitled if it so chooses to remove an existing Manager to exercise this right, and the replacement provisions of Section 8.2 shall not apply; or
8.3.2 Owns ninety percent (90%) of the Interests of the Company, the Majority shall be entitled to have all four representatives on the Managing Board representing it and in such case shall be entitled if it so chooses to remove one or more existing Managers to exercise this right, and the replacement provisions of Section 8.2 shall not apply.
8.4 Duties of Managers. A Manager of the Company shall perform his or her duties as a manager, including his or her duties as a member of any committee upon which he or she may serve, in good faith, in a manner he or she reasonably believes to be in the best interests of the Company, and with such care as an ordinarily prudent person in a like position would use under similar circumstances. In performing his or her duties, a Manager shall be entitled to rely on information, opinions, reports, or statements, including financial statements and other financial data, in each case prepared or presented by persons and groups listed in paragraphs (a), (b), and (c) of this Section 8.4; but he or she shall not be considered to be acting in good faith if he or she has knowledge concerning the matter in question that would cause such reliance to be unwarranted. A person who so performs his or her duties shall not have any liability by reason of being or having been a Manager of the Company.
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Exhibit 10.60
Those persons and groups upon whose information, opinions, reports, and statements a Manager is entitled to rely are:
(a) One or more employees or other agents of the Company whom the Manager reasonably believes to be reliable and competent in the matters presented;
(b) Counsel, public accountants, or other persons as to matters which the Manager reasonably believes to be within such persons' professional or expert competence; and
(c) A committee appointed by the Managers upon which they may or may not serve, duly designated in accordance with the provision of this Operating Agreement as to matters within its designated authority, which committee the Managers reasonably believe to merit confidence.
8.5 Certain Powers of Managers. Without limiting the specific reservation of control to Todd J. Wolfe and David A. Hoeft of Section 8.1 of this Agreement, but subject to the monetary limitations therein, the Managers shall have but not necessarily be limited to, the following authority when acting on behalf of the Company:
(a) to acquire real property from any persons, firms, or corporations as the Managers may determine; provided, however, that the acquisition is upon reasonable terms and conditions. The fact that a Member is directly or indirectly affiliated or connected with any such person, firm, or corporation shall not prohibit the Managers from dealing with that person, firm, or corporation;
(b) to borrow money for the Company from banks, other lending institutions, the Members, or Affiliates of the Members on such terms as they deem appropriate, and, in connection therewith, to hypothecate, encumber, and grant security interests in the assets of the Company to secure repayment of the borrowed sums. Except as otherwise provided in the Act, no debt shall be contracted or liability incurred by or on behalf of the Company except by the Company's Managers.
(c) To purchase liability and other insurance to protect the Company's property and business;
(d) To hold and own any Company real and/or personal properties in the name of the Company;
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Exhibit 10.60
(e) To invest any Company funds temporarily (by way of example but not limitation) in time deposits, short-term governmental obligations, commercial paper, or other investments having a prudently obtainable yield;
(f) Upon the affirmative vote of the Members holding a majority of all Membership Interests, to sell or otherwise dispose of all or substantially all of the assets of the Company as part of a single transaction or plan so long as such disposition is not in violation of or causes a default under any other agreement to which the Company may be bound;
(g) To execute on behalf of the Company all instruments and documents, including, without limitation, checks; drafts; notes and other negotiable instruments; deeds of trust; security agreements; financing statements; documents providing for the acquisition, mortgage, or disposition of the Company's property; assignments; bills of sale; leases; partnership agreements; and any other instruments or documents necessary, in the opinion of the Managers, to the business of the Company
(h) To maintain reserves for the purpose of paying property taxes, mortgage installments, and any and all other types of costs or expenses as required or desired by the Managers
(i) To employ accountants, legal counsel, managing agents, or other experts to perform services for the Company and to compensate them from Company funds;
(j) To contract with themselves or other persons or entities whether or not affiliated with any Manager for management, consulting, or other services;
(k) To enter into any and all other agreements on behalf of the Company, with any other person or entity for any purpose, in such forms as the Managers may approve; provided, however, that a Manager may not enter into any agreement which may reasonably obligate the Company to expend sums in excess of $250,000 unless the approval of a majority of Managing Board is first obtained; and
(l) To do and perform all other acts as may be necessary or appropriate to the conduct of the Company's business, including paying the fees and expenses described in this Operating Agreement and delegating duties and authority to others when deemed necessary or appropriate.
8.6 Number of Managers. The number of Managers of the Company initially shall be four (4). The number of the Managers shall be fixed from time to time by unanimous vote of the Members, but in no instance shall there be less than one Manager. Managers need not be residents
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Exhibit 10.60
of the State of Indiana, but must be natural persons, and be or be acting on behalf of Members of the Company.
8.7 Regular Meetings. A regular meeting of Managers shall be held without the requirement of any other notice immediately after, and at the same place as, the annual meeting of Members. The Managers may provide, by resolution, the time and place, either within or without the State of Indiana, for the holding of additional regular meetings without other notice than such resolution.
8.8 Special Meetings. Special meetings of the Managers may be called by or at the request of any one Manager. The person calling a special meeting of the Managers may fix any place within the State of Indiana as the place for holding any special meeting of the Managers, so long as the place is one to which all Managers can conveniently travel.
8.9 Notice. Written notice of any special meeting of Managers shall be given as follows:
By mail to each Manager at his business address at least three days prior to the meeting; or
By personal delivery at least twenty-four hours prior to the meeting to the business address of each Manager, or in the event such notice is given on a Saturday, Sunday, or holiday, to the residence address of each Manager. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. Any Manager may waive notice of any meeting. The attendance of a Manager at any meeting shall constitute a waiver of notice of such meeting, except where a Manager attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Managers need be specified in the notice or waiver of notice of such meeting.
When any notice is required to be given to a Manger, a waiver thereof in writing signed by such Manager, whether before, at, or after the time stated therein, shall constitute the giving of such notice.
8.10 Quorum. A majority of the number of Managers fixed by or pursuant to Section 8.2 of this Agreement shall constitute a quorum for the transaction of business at any meeting of the Managers, but if less than such majority is present at a meeting, a majority of the Managers present may adjourn the meeting from time to time without further notice.
8.11 Manner of Acting. The act of the majority of the Managers present at a meeting at which a quorum is present shall be the act of the Managers.
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Exhibit 10.60
8.12 Informal Action by Managers. Any action required or permitted to be taken at a meeting of the Managers or any committee designated by the Managers may be taken without a meeting if the action is evidenced by one or more written consents describing the action taken, signed by each Manager or committee member, and delivered to the person having custody of the Company records for inclusion in the minutes or for filing with the records. Action taken under this section is effective when all Managers or committee members have signed the consent, unless the consent specifies a different effective date. Such consent has the same force and effect as an unanimous vote of the Managers or committee members and may be stated as such in any document.
8.13 Participation by Electronic Means. Any Manager or any committee designed by the Managers may participate in a meeting of the Managers or committee by means of telephone conference or similar communications equipment by which all persons participating in the meeting can hear each other at the same time. Such participation shall constitute presence in person at the meeting.
8.14 Resignation. Any Manager of the Company may resign at any time by giving written notice to the Company. The resignation of any Manager shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. When one or more Managers shall resign, effective at a future date, a majority of the Managers then in office, shall have power to fill the vacancy or vacancies to be created by the resignations, the vote thereon to take effect when such resignation or resignations shall become effective.
8.15 Removal. Any Manager or Managers of the Company may be removed at any time, with or without cause, by a vote of holders of a majority of the Membership Interests then entitled to vote.
8.16 Committees. By resolution adopted by a majority of the Managers, the Managers may designate two or more Managers to constitute a committee, which shall have such authority in the management of the Company, as the Managers shall designate.
8.17 Compensation. By resolution of a majority vote of the Membership Interests of the Members, and irrespective of any personal interest of any of the Managers, each Manager may be paid his expenses, if any, of attendance at each meeting of the Managers, and may be paid a stated salary as Manager or a fixed sum for attendance at each meeting of the Managers or both. No such payment shall preclude any Manager from serving the Company in any other capacity and receiving compensation therefore.
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Exhibit 10.60
8.18 Presumption of Assent. A Manager of the Company who is present at a meeting of the Managers or committee thereof, at which action on any matter is taken, shall be presumed to have assented to the action taken unless such Manager objects at the beginning of such meeting to the holding of the meeting or to the transacting of business at the meeting, unless his dissent is entered in the minutes of the meeting, or unless he shall file his written dissent to such action with the presiding officer of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Company immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Manager who voted in favor of such action.
8.19 Transactions with Company. A Manager or Member may lend money to, act as surety for, and transact other business with the Company and shall have the same rights and obligations with respect thereto as a person who is not a Manager of the Company, except that nothing contained in this Section shall be construed to relieve a Manager from any of his duties to the Company.
Section 9. Voting Trust. David Hoeft, Todd J. Wolfe and Tina D. Mercer may form a voting trust for the purposes of pooling their membership, but not Manager, votes.
Section 10. Members.
10.1 Members. The Members of this Company shall be those persons who either have signed this Operating Agreement or have signed this Operating Agreement and are duly admitted by the Members.
10.2 Admission of New Members. A person may be admitted as an additional member upon the written consent of all Members.
10.3 Annual Meeting. The annual meeting of the Members shall be held on the second Monday of February each year, commencing with the year 2004 , at the hour of 10:00 a.m. local time, or at such other time on such other day as shall be fixed by the Managers, for the transaction of such business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday in the State of Indiana, such meeting shall be held on the next succeeding business day. .
10.4 Special Meetings. Special meetings of the Members, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the Managers, or any Member or Members who individually or collectively own at least ten percent (10%) of the Membership Interests in the Company.
10.5 Place of Meetings. The Managers may designate any place, either within or outside of the State of Indiana, as the place of meeting for any annual meeting or for any special meeting
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called by the Managers. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal office of the Company in the State of Indiana.
10.6 Notice of Meeting. Written notice stating the place, day, and hour of the meeting of Members and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the Managers or other persons calling the meeting, to each Member of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the Member at his address as it appears on the books of the Company, with postage thereon prepaid. If three successive letters mailed to the last-known address of any Member of record are returned as undeliverable, no further notices to such Member shall be necessary until another address for such Member is delivered in writing to the Company.
10.7 Meeting of All Members. If all of the Members shall meet at any time and place, either within or outside of the State of Indiana, and consent to the holding of a meeting at such time and place, such meeting shall be valid without call or notice, and at such meeting any action of the Members may be taken.
10.8 Quorum. A majority of the Membership Interests of the Members entitled to vote, represented in person or by proxy, shall constitute a quorum at any meeting of Members. In the absence of a quorum at any such meeting, a majority of the Membership Interests of the Members so represented may adjourn the meeting from time to time for a period not to exceed thirty days without further notice. However, if the adjournment is for more than thirty days, a notice of the adjourned meeting shall be given to each Member of record entitled to vote at the meeting. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. The Members present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal during such meeting of that percentage of Membership Interests of the Members whose absence would cause less than a quorum.
10.9 Manner of Acting. If a quorum is present, the affirmative vote of the majority of the Membership Interests of the Members represented at the meeting and entitled to vote on the subject matter shall be the act of the Members.
10.10 Proxies. At all meetings of Members, a Member may vote in person or by proxy executed in writing by the Member or by a duly authorized attorney-in-fact. Such proxy shall be filed with the Company before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy.
10.11 Voting by Certain Members.
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10.11.1 Membership Interests owned in the name of a corporation may be voted by such officer, agent, or proxy as the Bylaws of such corporation may prescribe, or, in the absence of such provision, as the Board of Directors of such corporation may determine.
10.11.2 Membership Interests owned in the name of a deceased person, a minor ward, or an incompetent person may be voted by an administrator, an executor, a court appointed guardian, or a conservator, either in person or by proxy without a transfer of such Membership Interests into the name of such administrator, executor, court appointed guardian, or conservator. Membership Interests owned in the name of a trustee may be voted by him either in person or by proxy, but no trustee shall be entitled to vote Membership Interests held by him without a transfer of such Membership Interests into his name.
10.11.3 Membership Interests owned in the name of a receiver may be voted by such receiver and Membership Interests held by or under the control of a receiver may be voted by such receiver without a transfer thereof into the receiver's name, if authority so to do is contained in an appropriate order of the court by which the receiver was appointed.
10.11.4 No Member shall be entitled to pledge any Membership Interest.
10.11.5 If Membership Interests are owned in the names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety, or otherwise, or if two or more persons have the same fiduciary relationship respecting the same Membership Interests, voting with respect to the Membership Interests shall have the following effect:
(a) If only one person votes, his act binds all;
(b) If two or more persons vote, the act of the majority so voting binds all;
(c) If two or more persons vote, but the vote is evenly split on any particular matter, each faction may vote the Membership Interest in question proportionately, or any person voting the Membership Interest of a beneficiary, if any, may apply to any court of competent jurisdiction in the State of Indiana to appoint an additional person to act with the persons so voting the Membership Interest. The Membership Interest shall then be voted as determined by a majority of such persons and the person appointed by the court. If a tenancy is held in unequal interests, a majority or even split for the purpose of this subparagraph (c) shall be a majority or even split in interest.
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10.12 Action by Members Without a Meeting. Action required or permitted to be taken at a meeting of Members may be taken without a meeting if the action is evidenced by one or more written consents describing the action taken, signed by each Member entitled to vote, and delivered to the Manager for filing with the Company records. Action taken under this section is effective when all Members entitled to vote have signed the consent, unless the consent specifies a different effective date.
10.13 Voting by Ballot. Voting on any question or in any election may be by voice vote unless a Manager or any Members shall demand that voting be by ballot.
10.14 Waiver of Notice. When any notice is required to be given to any Member, a waiver thereof in writing signed by the person entitled to such notice, whether before, at, or after the time stated therein, shall be equivalent to the giving of such notice. The attendance of a Member at any meeting shall constitute a waiver of notice, waiver of objection to defective notice of such meeting, and a waiver of objection to the consideration of a particular mater at the meeting unless the Member, at the beginning of the meeting, objects to the holding of the meeting, the transaction of business at the meeting, or the consideration of a particular matter at the time it is presented at the meeting.
Section 11. Banking.
All revenues of the Company shall be deposited regularly in the Company savings and checking accounts at such bank or banks as shall be selected by the Managers in accordance with Section 8 of this Agreement, and the signatures of such Managers as shall be determined in accordance with Section 8 of this Agreement shall be honored for banking purposes, including the extension of credit to, or the borrowing of money by or on behalf of, the Company.
Section 12. Books; Fiscal Year; Audits.
Accurate and complete books of account shall be kept by the Managers and entries promptly made therein of all of the transactions of the Company, and such books of account shall be open at all times to the inspection and examination of the Manager and Members. At the discretion of the Managers, compilation, review, or audit of the Company, as shall be determined by the Managers in accordance with Section 8 of this Agreement, may be made as of the closing of each fiscal year of the Company by the accountants who shall then be engaged by the Company.
Section 13. Membership Interest and Membership Rights of a Deceased, Incompetent, or Dissolved Member.
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If a Member who is an individual dies or a court of competent jurisdiction adjudges him to be incompetent to manage his person or his property, the Member's executor, administrator, guardian, conservator, or other legal representative may exercise all of the Member's rights and receive the benefits of the Member's Membership Interest for the purpose of settling the Member's estate or administering the Member's property. If a Member is a corporation, trust, partnership, limited liability company, or other entity and is dissolved or terminated, the powers of that Member may be exercised by its legal representative or successor.
Section 14. Transfer of Membership Interest and Membership Rights.
14.1 Call Option. From and after seventy-two (72) months following the Effective Date, Nelnet shall have a "call" option (the "Call") to acquire up to one hundred percent (100%) ownership of the Company at a price equal to ten times the higher of (i) the most recent three-year (3-year) average after tax net income (the parties recognize that the Company does not have tax impact, but for purposes of the calculations in this Section 14 "after tax net income" will be calculated using the corporate tax rate of forty percent (40%)) of the Company or (ii) after tax net income of the most recent year prior to the purchase, either amount being multiplied by the percentage of ownership being acquired, and excluding any extraordinary and nonrecurring items plus any future real estate purchased by Company, valued at the original purchase price, less depreciation, less debt in proportion to the Membership Interests at the time of selling but excluding herefrom the real property situated at 2002 Wellesley Blvd. Indianapolis, Indiana.
14.2 Put Option. From and after sixty (60) months following the Closing, the Company will have a "put" option (the "Put") for Nelnet to acquire up to one hundred percent (100%) ownership of Company at a price equal to ten (10) times after tax net income over the Company's most recent three-year (3-year) average, such amount being multiplied by the percentage of ownership being acquired, and excluding any extraordinary and nonrecurring items plus any future real estate purchased by Company, valued at the original purchase price, less depreciation, less debt in proportion to the Membership Interests at the time of selling but excluding herefrom the real property situated at 2002 Wellesley Blvd. Indianapolis, Indiana.
14.3 Process for Exercise of Call and Put. The Member exercising the Call or Put Option ("Exercising Member") shall give written notice of same to the other Members and the Company at the addresses set forth in section 20 below. Such notice shall specify the price of the Option, and within thirty (30) days after the notice is given, the parties, as appropriate, shall execute such documents and instruments reasonably required to effectuate the Option at the purchase price as calculated using the formula in (a) or (b) above and on the other terms as specified in the notice, and the closing of such transaction shall take place as soon as practicable but in any event not more than
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sixty (60) days following receipt of the notice. At such closing, the selling parties shall sell and transfer their entire equity interest to the appropriate purchasing party free and clear of all liens, claims or encumbrances, other than the Operating Agreement, as amended by this provision.
14.4 Offer to Purchase ("Cherry Pie"). From and after thirty-six (36) months following the Effective Date, a member, (hereinafter referred to as the "Offeror Member") shall have the right exercisable by written notice (the "Offer") to any or all of the other Members (the "Offeree Members"), to offer to buy the Offeree Members' entire equity interest in the Company at a purchase price and upon the other terms determined by the Offeror Members and specified in the Offer. The Offeree Members must elect by written notice (the "Notice of Election") to the Offeror Member not less than twenty (20) days after receipt of the Offer, either (i) to sell the Offeree Members' entire equity interest in the Company to the Offeror Member at the purchase price and on the other terms specified in the Offer, or (ii) to offer to purchase the Offeror Member's entire equity interest in the Company at a purchase price equal to the price set forth in the Offer. Not later than ten (10) days after the Notice of Election, the parties, as appropriate, shall execute such documents and instruments reasonably required to sell and transfer either the Offeror Member's or the Offeree Members' (as applicable) entire equity interest in the Company at the purchase price and on the other terms as specified in the Offer, and the closing of such sale shall take place as soon as practicable but in any event not more than one hundred eighty (180) days following receipt of the Notice of Election. At such closing, the selling party shall sell and transfer its entire equity interest to the appropriate purchasing party free and clear of all liens, claims or encumbrances, other than this Operating Agreement.
For the purposes of this section 14.4, if the Offeror is Nelnet, Inc. then the Offer must be made to all other then existing Members and Membership Interests. If the Offeree is Nelnet, Inc. the Offeror must consist of all of the other then existing Members and Membership Interests.
14.5 Rights of Refusal.
14.5.1 First Right of Refusal. Hoeft and Wolfe shall each have a first right of refusal to acquire the ownership interests of any other Member should the Member wish to sell such interests. In order to exercise this first right of refusal, the Member desiring to sell, transfer or assign all of any part of the Member's interest to a third party shall communicate such intention in writing to the other Members and the Company stating the purchase price proposed for the transfer. Such notice shall be via registered or certified mail, return receipt requested to the address for each of the other Members and to the office of the Company and shall state the action the
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Member intends to take and the terms of the transaction. Within thirty (30) days after receiving this notice, Hoeft or Wolfe, as applicable, may purchase at his option all or any part of the interest described in the notice for the purchase price stated in the notice.
14.5.2 Second Right of Refusal. If the offer contained in the notice described above is not accepted by Hoeft or Wolfe, as applicable, within thirty (30) days from the date of receipt of the notice, then Nelnet may exercise a second right of refusal to purchase the Interest, at a price determined by the formula set forth in Section 14 hereof. Such right shall be exercised within thirty (30) days of the expiration of Hoeft or Wolfe's first right of refusal period.
Section 15. Expulsion of a Member.
15.1 Right of members to expel a member. A member may be expelled from membership in the Company by vote of the Managers in accordance with Section 15.2:
a. If the member materially breaches this Agreement and fails to cure the breach within a reasonable time after receiving notice of breach (if cure is possible);
b. The member is convicted of a felony;
c. The member engages in fraudulent or illegal actions in relation to the business or internal affairs of the Company; or
d. The member's action or omission make it unlawful for that member to be an owner of a licensed debt collection company in any jurisdiction that the Company is required to be licensed, or a member's actions or omissions, in the discretion of the Majority of the disinterested Board of Managers, jeopardizes any license or contract held by the Company.
15.2 Voting requirements for expulsions of members. A member may be expelled from membership in the Company if a circumstance described in 15.1 above exists and the disinterested Managers vote as follows:
a. Company has four or more Managers. If, at the relevant time, the Company has at least four managers, a member may be expelled by the affirmative vote of 2 of 3 Managers if one Member is interested; or 3 of 4 Managers if no Manager is interested. or
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b. If Nelnet is the Member in question, then the Managers of the Company representing Hoeft and Wolfe, must vote unanimously.
15.3 Consequences of cessation of membership. Immediately upon a member's ceasing to be a member, the member shall cease to have any right, duty or liability as a member; provided that, except as otherwise provided in this agreement:
a. The member shall continue to own the member's Company interest and to have all the rights of an owner of a Company interest.
b. The member shall continue to be subject to all liabilities accrued by the member before ceasing to be a member.
15.4 Right of Company to require certain former members to sell their Company interests to the Company. The Company may require a member to promptly sell the member's membership to the Company based on the formula set forth in section 14.2(b) and upon other reasonable purchase terms:
a. If the member becomes bankrupt;
b. If the member becomes a party to a divorce proceeding and the other members determine reasonably and in good faith that it is likely that as a result of that proceeding, all or any of the member's membership rights will be awarded to the member's spouse;
c. If the member resigns from the LLC;
d. If the member incurs a Total Disability within the meaning of Article 6.2; or
e. if the member is expelled hereunder.
Section 16. Death, Bankruptcy, Retirement, or Resignation of a Member.
16.1 Purchase of Membership Interest. Upon the Death, Bankruptcy, Retirement or Resignation of any member (the "Withdrawing Member"), the Company shall be dissolved and terminated unless there are at least two remaining Members and the business of the Company is continued by the consent of all the remaining Members within ninety days after death, bankruptcy, retirement, or resignation. If the business of the Company is continued, the Withdrawing Member (or in the case of death, the Member's representative) must offer to sell to the Company or to the
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Members at the value as determined by Section 14(b) above, and in accordance with the procedures outlined in Section 14(c) of this Agreement, all of the Membership Interest and Membership Rights (the "Withdrawing Member's Interest") owned by the Withdrawing Member in the Company on the date of such Death, Bankruptcy, Retirement, or Resignation (the "Withdrawal Date").
16.2 Consequences of Bankruptcy, Retirement, or Resignation. Retirement of a member shall not be considered to be a breach or default of this Agreement so long as a Member retires with the written consent of a majority of the Membership Interests of the Members ("Permitted Retirement"). Bankruptcy, Resignation, and Retirement, other than Permitted Retirement, of a Member shall be regarded as a breach and default of this Agreement.
Section 17. Certain Tax Aspects Incident to Transactions Contemplated by This Agreement.
It is the intention of the parties that the Purchase Price or Member's Value shall constitute and be considered as made in exchange for the interest of a partner in partnership property, including good will, within the meaning of
Section 736(b) of the Internal Revenue Code of 1986, as amended.
Section 18. The Member's Value.
The term " Member's Value," as used in this Agreement, shall be the dollar amount equal to the sum obtained by multiplying (a) the percentage of Membership Interest and Membership Rights owned by a Member by (b) the Total Value of the Company, as determined in accordance with Section 14(b).
Section 19. Delivery of Evidence of Interest.
On the closing date, upon payment of the Purchase Price or Member's Value for the Purchase of the Interest hereunder, the Offering Member, the personal representatives of the Decedent or the Heir, the Withdrawing Member, or the personal representative of the Withdrawing Member (in the event of the bankruptcy of the Withdrawing Member), as the case may be, shall execute, acknowledge, seal, and deliver to the Purchasing Person such instrument or instruments of transfer to evidence the purchase of the Interest (the "Instrument of Transfer") that shall be reasonably requested by counsel to the Purchasing Person in form and substance reasonably satisfactory to such counsel. If a tender of the Purchase Price or Member's Value, shall be refused, or if the Instrument of Transfer shall not be delivered contemporaneously with the tender of the Aggregate Purchase Price, then the purchasing person shall be appointed, and the same is hereby irrevocably constituted and appointed, the attorney-in-fact with full power and authority to execute, acknowledge, seal, and deliver the Instrument of Transfer.
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Section 20. Notices.
Any and all notices, offers, acceptances, requests, certifications, and consents provided for in this Agreement shall be in writing and shall be given and be deemed to have been given when personally delivered against a signed receipt or mailed by registered or certified mail, return receipt requested, to the last address which the addressee has given to the Company. The address of each Member is set forth on his Subscription Agreement adopting and agreeing to be bound by the terms of this Agreement or under his signature at the end of this Agreement, and each Member agrees to notify the Company of any change of address. The address of the Company shall be its principal office.
Section 21. Additional Members.
From the date of the formation of the Company, any individual or entity acceptable to the Members by their unanimous vote may become a Member in this Company by the sale of new Company Membership Interests for such consideration as the members by their unanimous vote shall determine, or as a transferee of a Member's Membership Interest or any portion thereof, subject to the terms and conditions of this Agreement. No new Members shall be entitled to any retroactive allocation of profits or losses to the new Member for that portion of the Company's tax year in which a new Member was admitted.
Section 22. Dissolution and Termination.
22.1 Dissolution.
(a) The Company shall be dissolved upon the occurrence of any of the following events:
(i) when the period fixed for the duration of the Company shall expire;
(ii) by the unanimous written agreement of all Members; or
(iii) upon the death, retirement, resignation, bankruptcy, transfer to a non-Member of a Membership Interest, or dissolution of a Member, or the occurrence of any other event which terminates the continued membership of a Member in the Company, unless there are at least two remaining Members and the business of the Company is continued by the consent of all the remaining Members within ninety days after the termination.
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(b) As soon as possible following the occurrence of any of the events specified in this Section effecting the dissolution of the Company, the Company shall execute a statement of intent to dissolve in such form as shall be prescribed in the Indiana Secretary of State.
22.2 Filing of Statement of Intent to Dissolve.
Duplicate originals of the statement of intent to dissolve shall be delivered to the Indiana Secretary of State.
22.3 Effect of Filing of Dissolving Statement.
Upon the filing with the Indiana Secretary of State of a statement of intent to dissolve, the Company shall cease to carry on its business, except insofar as may be necessary for the winding up of its business, but its separate existence shall continue until articles of dissolution have been filed with the Secretary of State or until a decree dissolving the Company has been entered by a court of competent jurisdiction.
22.4 Distribution of Assets upon Dissolution.
(a) In settling accounts after dissolution, the liabilities of the Company shall be entitled to payment in the following order:
(i) To creditors, including Members who are creditors, to the extent otherwise permitted by law, in satisfaction of liabilities of the Company other than liabilities for distributions to members under the Act;
(ii) To members and former members of the Company in satisfaction of liabilities for distributions under the Act;
(iii) To members of the Company for the return of their contributions and as distributions in the proportions in which the Members share in distributions.
(b) Members will share in Company assets in respect to their claims for capital and in respect to their claims for profits or for compensation by way of income on their contributions, respectively, in proportion to the respective amounts of the claims.
22.5 Articles of Dissolution. When all debts, liabilities, and obligations have been paid and discharged or adequate provision has been made therefor and all of the remaining property and assets have been distributed to the Members, articles of dissolution shall be executed in duplicate and verified by the person signing the articles, which articles shall set forth the information required by the Act.
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22.6 Filing of Articles of Dissolution.
(a) Duplicate originals of such articles of dissolution shall be delivered to the Indiana Secretary of State.
(b) Upon the filing of the articles of dissolution, the existence of the Company shall cease, except to the purpose of suits, other proceedings, and appropriate action as provided in the Act. The Managers shall thereafter be trustees for the Members and creditors of the Company and as such shall have authority to distribute any Company property discovered after dissolution, convey real estate, and take such other action as may be necessary on behalf of and in the name of the Company.
22.7 Managers' Responsibility. Upon dissolution, each Member shall look solely to the assets of the Company for the return of his Capital Contribution. If the Company property remaining after the payment or discharge of the debts and liabilities of the Company is insufficient to return the cash contribution of each member, such Member shall have no recourse against a manager or any other Member. The winding up of the affairs of the Company and the distribution of its assets shall be conducted exclusively by the Managers, who are hereby authorized to take all actions necessary to accomplish such distribution, including, without limitation, selling any Company assets the managers deem necessary or appropriate to sell. In the event of removal or resignation of all Managers and the failure to appoint a new Manager, the winding up of the affairs of the Company and the distribution of its assets shall be conducted by such persons or entities as may be selected by a vote of Members holding a majority of the Member's Interests in the Company's capital, which persons are authorized to do any and all acts and things authorized by law for these purposes.
Section 23. Power of Attorney.
23.1 Unless otherwise prohibited by the Act, each Member hereby irrevocably designates and appoints each Manager of the Company or any successor Manager with full power of substitution, to be his agent and true and lawful attorney-in-fact for him and in his name, place, and stead, to implement, execute, acknowledge, file, and record:
(a) This Operating Agreement and any separate Certificates and Agreements, as well as amendments thereto, which under the laws of the State of Indiana or the laws of any other state are required to be filed, or which a Manager deems it advisable to file;
(b) Any other instrument or document which may be required to effect the qualification and continuation of the Company under the laws of any state or any governmental agency, or which a Manager deems it advisable to file;
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(c) Any instrument or document which may be required to effect the admission of an additional or substituted Member, or dissolution and termination of the Company (provided such continuation, admission, or dissolution and termination are in accordance with the terms of the Agreement), or to reflect any change in the amount of contributions of Members;
(d) Any and all documents required to acquire, finance, refinance, convey, or sell the assets of the Company;
(e) Any nonmaterial amendment to this Agreement;
(f) Any amendment to the Company's articles of organization when:
(i) There is a change in the name of the Company or in the amount or the character of Capital Contributions;
(ii) There is a change in the character of the business of the Company;
(iii) There is a false or erroneous statement in the articles of organization; or
(iv) There is a change in the time as stated in the articles of organization for the dissolution of the Company.
(g) Any other instrument necessary to conduct the operations of the Company.
23.2 The foregoing power of attorney:
(a) is a special power of attorney coupled with an interest, is irrevocable, and shall survive the death or incapacity of a Member;
(b) may be exercised by a Manager, acting alone, for each Member by listing all of the Members executing any instrument with a single signature of the Manager, acting as attorney-in-fact for all of them;
(c) shall survive the assignment by a Member of all or any portion of his Membership Interest in the Company except that, where the assignee of such Membership Interest in the Company owned by such Member has been approved by the Members for admission to the Company as a substituted Member, the special power of attorney shall survive the assignment for the sole purpose of enabling the Manager to execute, acknowledge, and file any instrument or document necessary to effect such substitution; and
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(d) shall in no way cause a Member to be liable in any manner for the acts or omissions of a Manager.
Each Member hereby agrees to be bound by any actions taken by a Manager acting in good faith pursuant to this power of attorney; and each Member hereby waives any and all defenses which may be available to contest, negate, or disaffirm the action of a Manager taken in good faith under such power of attorney.
Any substituted or additional Member, upon admission to the Company, shall be deemed to ratify and reaffirm the appointment of a Manager as his or her true and lawful attorney for the purposes and on the same terms as set forth hereinabove.
Section 24. Governing Law.
It is the intent of the parties hereto that all questions with respect to the construction of this Agreement and the rights, duties, obligations, and liabilities of the parties shall be determined in accordance with the applicable provisions of the laws of the State of Indiana.
Section 25. Miscellaneous Provisions.
25.1 Inurement. This agreement shall be binding upon, and inure to the benefit of, all parties hereto, their personal and legal representatives, guardians, successors, and assigns to the extent, but only to the extent, that assignment is provided for in accordance with, and permitted by, the provisions of this Agreement.
25.2 No Limit on Personal Activities. Nothing herein contained shall be construed to limit in any manner the Members or their respective agents, servants, and employees, in carrying out their own respective businesses or activities; provided, however, that such businesses or activities shall not directly or indirectly be in competition with the business or purpose of the Company.
25.3 Further Assurances. The Members and the Company agree that they and each of them will take whatever action or actions are deemed by counsel to the Company to be reasonably necessary or desirable from time to time to effectuate the provisions or intent of this Agreement, and to that end the Members and the Company agree that they will execute, acknowledge, seal, and deliver any further instruments or documents which may be necessary to give force and effect to this Agreement or any of the provisions hereof, or to carry out the intent of this Agreement, or any of the provisions hereof.
25.4 Gender and Headings. Throughout this Agreement, where such meanings would be appropriate: (a) the masculine gender shall be deemed to include the feminine and the neuter
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Exhibit 10.60
and vice versa, and (b) the singular shall be deemed to include the plural and vice versa. The headings herein are inserted only as a matter of convenience and reference, and in no way define or describe the scope of the Agreement or the intent of any provisions thereof.
25.5 Entire Agreement. This Agreement and the Subscription Agreements of each of the Members and exhibits attached hereto and thereto set forth all (and are intended by all parties hereto to be an integration of all) of the promises, agreements, conditions, understandings, warranties, and representations among the parties hereto with respect to the Company, and there are no promises, agreements, conditions, understandings, warranties, or representations, oral or written, express or implied, among them other than as set forth herein.
25.6 Severability. Nothing contained in this Agreement shall be construed as requiring the commission of any act contrary to law. In the event that there is any conflict between any provision of this Agreement and any statute, law, ordinance, or regulation contrary to which the Members or the Company have no legal right to contract, the latter shall prevail, but in such event the provisions of this Agreement thus affected shall be curtailed and limited only to the extent necessary to conform with said requirement of law. In the event that any part, article, section, paragraph, or clause of this Agreement shall be held to be indefinite, invalid, or otherwise unenforceable, the entire Agreement shall not fail on account thereof, and the balance of the Agreement shall continue in full force and effect.
25.7 Waiver of Action for Partition. Each Member irrevocably waives during the term of the Company any right that he may have to maintain any action for partition with respect to the property of the Company.
25.8 Amendments. Amendments to this Agreement which (a) are of an inconsequential nature and do not affect the rights of the Members in any material respect; or (b) are required or contemplated by this Agreement; or (c) are in the opinion of counsel to the Company necessary to maintain the status of the Company as a partnership for federal income tax purposes, may be made by a Manager through the use of the powers of attorney granted herein. Any amendments made pursuant to part (c) of this Section 25.8 shall be deemed effective as of the date of this Operating Agreement. In its discretion, any amendment to this Operating Agreement may be proposed to the Members by a Manager. . The Manager shall submit to the Members any such proposed amendment together with an opinion of counsel as to the legality of such amendment and the recommendation of the Manager as to its adoption. A vote of an amendment to this Operating Agreement shall be taken within thirty (30) days thereof unless otherwise extended by applicable laws and/or regulations. A proposed amendment shall become effective at such time as it has been approved by Members holding a majority of all Membership Interests in Company Capital. Notwithstanding any provision in this Operating Agreement to the contrary, any amendment to this Operating Agreement which would adversely affect the federal income tax treatment to be afforded Members, or adversely affect the liabilities of Members, or change the method of allocation of
-26-
Exhibit 10.60
profit and loss or distribution of distributable cash as provided herein, shall require the approval of all Members. Copies of any amendments not requiring approval shall be sent to the Members.
25.9 Execution of Additional Instruments. Each Member hereby agrees to execute and deliver to a Manager within five days after receipt of the Manager's written request therefor, such other and further statements of interest and holdings, designations, powers of attorney, and other instruments as the Manager deems necessary to comply with any laws, rules, or regulations.
25.10 Title to Company Properties. Title to all Company properties shall be held in the name of the Company.
25.11 Company Interests. Each of the Members and any substituted or additional members admitted hereby covenant, acknowledge, and agree that all Membership Interests in the Company shall for all purposes be deemed personalty and shall not be deemed realty or any interest in the real property owned by the Company.
25.12 Waivers. The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Operating Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.
25.13 Rights and Remedies Cumulative. The rights and remedies provided by this Operating Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance, or otherwise.
25.14 Legend on Certificates. The Membership Interests of Members may not be sold, transferred, or assigned for value to any person except in accordance with the provisions of this Operating Agreement applicable thereto. An appropriate legend noting restrictions on transfer shall be placed conspicuously on the face of all certificates representing Membership Interests and a notation restricting transfer will be placed in the books and records of the Company. All transferees of Membership Interests will be treated similarly and corresponding notations will be placed on new certificates for Membership Interests issued upon transfer as well as in the Company records.
25.15 Company Seal. The Members shall provide a Company seal which shall be circular in form and shall have inscribed thereon the name of the Company and the state of organization and the words "COMPANY SEAL."
25.16 Dispute Resolution; Arbitration.
(a) Dispute Resolution. The Members agree that any dispute arising in connection with the interpretation of this Agreement or the performance of any Member under this
-27-
Exhibit 10.60
Agreement or otherwise relating to this Agreement will be treated in accordance with the procedures set forth in this Section, prior to the resort by any Member to arbitration or litigation in connection with such dispute. The dispute will be referred for resolution first to a designated representative of each Member. Such procedure will be invoked by a Member presenting to the other(s) a Notice of Request for Resolution of Dispute (a "Notice") identifying the issues in dispute sought to be addressed hereunder. A telephone or personal conference of those designees will be held within ten (10) business days after delivery of the Notice. In the event that the telephone or personal conference between these individuals does not take place or does not resolve the dispute, either Member may refer the dispute to binding arbitration pursuant to the arbitration provisions set forth below.
(b) Arbitration. All claims or disputes between the Members arising out of or relating to this Agreement will be decided by arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association currently in effect and in accordance with Title 9 of the United States Code, unless the Members mutually agree otherwise in writing. Notice of the demand for arbitration must be filed in writing with the other Member or Members and must be made within three business days after the meeting of designees set forth above has concluded. All statutes of limitation, which would otherwise be applicable in a judicial action brought by a Member, will apply to any arbitration or reference proceeding hereunder. The arbitration will be decided by a single arbitrators selected by the Members. If the Members cannot agree on a single arbitrator each Member will select an arbitrator and those two arbitrators will select a third arbitrator. Arbitration will be initiated in the locale chosen by the party initiating the proceeding. Said arbitration will occur within thirty
(30) consecutive days after the Member demanding arbitration delivers the written demand on the other Member(s) unless the Members mutually agree otherwise in writing. The award rendered by the arbitrator(s) will be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Except by written consent of the Members, no arbitration arising out of or relating to this Agreement may include, by consolidation, joinder or in any other manner, any person or entity not a party to the Agreement under which such arbitration arises. The arbitration agreement herein among the Members will be specifically enforceable under applicable law in any court having jurisdiction thereof. No Member will appeal such award nor seek review, modification, or vacation of such award in any court or regulatory agency. The arbitrators will award to the prevailing Member, if any, as determined by the arbitrators, all of its Costs and Fees. "Costs and Fees" mean all reasonable pre-award expenses of the arbitration, including the arbitrators' fees, administrative fees, travel expenses, out-of-pocket expenses, such as copying and telephone, court costs, witness fees and attorneys' fees.
25.17 Not for Benefit of Creditors. The provisions of this Agreement are intended only for the regulation of relations among Members and the Company. This Agreement is not intended
-28-
Exhibit 10.60
for the benefit of non-Member creditors and does not grant any rights to or confer any benefits on non-Member creditors or any other person who is not a Member, a Manager, or an officer.
CERTIFICATE
We hereby certify that the foregoing Operating Agreement, consisting of 29 pages, excluding the Table of Contents, constitutes the Operating Agreement of Premiere Credit of North America, Limited Liability Company, an Indiana Limited Liability Company, adopted by the Members of the Company as of January 28, 2004.
Nelnet, Inc. 121 S. 13th Street, Suite 201 Lincoln, NE 68508

By:      /s/ Charles Hosea
         -------------------------------------
         Charles Hosea, Executive Director

/s/ Todd J. Wolfe
----------------------------------------------
Todd J. Wolfe
P.O. Box 19309
Indianapolis, IN 46219

/s/ David A. Hoeft
----------------------------------------------
David A. Hoeft
P.O. Box 19309
Indianapolis, IN 46219

/s/ Tina D. Mercer
----------------------------------------------
Tina D. Mercer	

-29-
 
Exhibit 10.60
Exhibit A
Premiere Credit of North America, LLC

MEMBER                              MEMBERSHIP INTEREST

David A. Hoeft                      18.85%

Todd J. Wolfe                       25.15%

Tina D. Mercer                       6.0%

Nelnet, Inc.                        50%	

-30-
 
Exhibit 10.61
THIRD AMENDMENT OF
AMENDED AND RESTATED PARTICIPATION AGREEMENT
This Third Amendment of the Amended and Restated Participation Agreement (the "Amendment") is made and entered into as of this 5th day of February, 2004, by and between and Union Bank and Trust Company, a Nebraska banking corporation and trust company, solely in its capacity as trustee of various grantor trusts known as Short Term Federal Investment Trusts or other grantor trusts ("Union Bank") and National Education Loan Network, Inc., f/k/a Nelnet, Inc., a Nevada corporation ("Nelnet").
WHEREAS, the parties hereto entered into that certain Amended and Restated Participation Agreement dated as of June 1, 2001, as amended (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. Change in Definition of Nelnet's Fee. For purposes of Section 1.03 of the Agreement, NELnet's Fee shall be defined to equal the difference between
(i) the total of interest received with respect to such Eligible Loans contained in a participation certificate, and (ii) an amount equal to 22.5 basis points (.225%) above the average of the bond equivalent rates of the quotes of 3-month commercial paper (financial) rates in effect for each of the days in such quarter as reported by the Federal Reserve in Publication H-15 (or its successor) for the relevant 3-month period, multiplied by the average aggregate principal balance of all Eligible Loans covered by said participation certificate.
3. Effect of Amendment. This Amendment shall be effective as of the date first set forth above. 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 National Education Loan Network, Inc., f/k/a Nelnet, Inc.

By:      /s/ Kenneth Backemeyer          By:      /s/ Terry J. Heimes
         ------------------------------           ------------------------------

Title:   /s/ Senior Vice President       Title:   /s/ Chief Financial Officer
         ------------------------------           ------------------------------	

Exhibit 10.62
FEBRUARY 2004 AMENDMENT TO
APPLICATION AND AGREEMENT FOR STANDBY LETTER OF CREDIT,
LOAN PURCHASE AGREEMENTS,
AND STANDBY STUDENT LOAN PURCHASE AGREEMENTS
THIS FEBRUARY 2004 AMENDMENT TO APPLICATION AND AGREEMENT FOR STANDBY LETTER OF CREDIT, LOAN PURCHASE AGREEMENTS, AND STANDBY STUDENT LOAN PURCHASE AGREEMENT, dated effective as of February 20, 2004 (the "Amendment") is among NATIONAL EDUCATION LOAN NETWORK, INC. (formerly known as Nelnet, Inc.), a corporation duly organized and validly existing under the laws of the State of Nevada ("NELN"), NELNET, INC. (formerly known as Nelnet Loan Services, Inc.), a corporation duly organized and validly existing under the laws of the State of Nebraska ("NELNET"), NELNET EDUCATION LOAN FUNDING, INC., a corporation organized and validly existing under the laws of the State of Nebraska ("Nebhelp"), UNION BANK AND TRUST COMPANY, a Nebraska state banking corporation ("Union Bank), and BANK OF AMERICA, N.A., a national banking association ("Bank").
PRELIMINARY STATEMENT
(1) Pursuant to that certain Application and Agreement for Standby Letter of Credit (as amended, restated, modified, and increased from time to time, the "Letter of Credit Agreement") between NELN and Bank, Bank issued letter of credit number 3056073 to Wells Fargo Bank Minnesota, National Association, for the account of NELN.
(2) Pursuant to that certain Loan Purchase Agreement dated May 23, 2003 ("Union Bank Purchase Agreement"), Union Bank agreed to purchase certain Eligible Loans (as defined in the Union Bank Purchase Agreement) from Bank to the extent and in the manner set forth herein.
(3) Pursuant to that certain Loan Purchase Agreement dated May 23, 2003 ("Nelnet Purchase Agreement"), NELN agreed to purchase certain Eligible Loans (as defined in the Nelnet Purchase Agreement) from Nebhelp acting by and through Wells Fargo Bank Minnesota, National Association, not individually, but as Eligible Lender Trustee to the extent and in the manner set forth herein.
(4) Pursuant to that certain Standby Student Loan Purchase Agreement dated May 23, 2003 ("Nebhelp Purchase Agreement"), NELN agreed to purchase certain Eligible Loans (as defined in the Union Purchase Agreement) from Nebhelp to the extent and in the manner set forth herein.
(5) NELN, NELNET, Nebhelp, Union Bank, and Bank have entered an Amendment to Application and Agreement for Standby Letter of Credit, Loan Purchase Agreements, and Standby Student Loan Purchase Agreements dated effective as of October 21, 2003 ("Amendment").
(6) NELN, NELNET, Nebhelp, Union Bank, and Bank have entered an additional Amendment to Application and Agreement for Standby Letter of Credit, Loan Purchase Agreements, and Standby Student Loan Purchase Agreements dated effective as of November 20, 2003 ("November Amendment").
February 2004 Amendment
Exhibit 10.62
(7) NELN, NELNET, Nebhelp, Union Bank, and Bank have entered an additional Amendment to Application and Agreement for Standby Letter of Credit, Loan Purchase Agreements, and Standby Student Loan Purchase Agreements dated effective as of December 19, 2003 ("December Amendment").
The Union Bank Purchase Agreement, the Nelnet Purchase Agreement, and the Nebhelp Purchase Agreement shall be individually referred to herein as a "Purchase Agreement" and collectively, as the "Purchase Agreements". NELN, NELNET, Nebhelp, and Union Bank are collectively referred to herein as the "Nelnet Entities")
NELN, Nelnet, and Nebhelp have requested that for an additional temporary 60 day period beginning on the Effective Date of this Amendment, loans Guaranteed by the Colorado Student Loan Program, which are otherwise Eligible Loans, be included within the definition of "Eligible Loans" for the purposes of the Letter of Credit Agreement and the Purchase Agreements.
Accordingly, in consideration of the foregoing and the mutual covenants set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. All capitalized terms defined in the Purchase Agreements, and not otherwise defined herein shall have the same meanings herein as in the Purchase Agreements. Upon the effectiveness of this Amendment, each reference in the Letter of Credit Agreement or any Purchase Agreement to "this Agreement," "hereunder," "herein" or words of like import shall mean and be a reference to the Letter of Credit Agreement and the Purchase Agreements, each as amended hereby.
Section 1.02 References, Etc. The words "hereof," "herein" and "hereunder" and words of similar import when used in this Amendment shall refer to this Amendment as a whole and not to any particular provision of this Amendment. In this Amendment, unless a clear contrary intention appears the word "including" (and with correlative meaning "include") means including, without limiting the generality of any description preceding such term. No provision of this Amendment shall be interpreted or constructed against any person solely because that person or its legal representative drafted such provision.
ARTICLE II
AMENDMENTS TO LETTER OF CREDIT AGREEMENT AND PURCHASE AGREEMENTS
Section 2.01 Amendments. Section 2 of the Letter of Credit Agreement shall be amended by adding the following to the end thereof:
"Notwithstanding anything to the contrary set forth herein, in addition to the deposits required above, in the event any Eligible Loan (as defined in the Loan Purchase Agreements) which is guaranteed by the Colorado Student Loan Program, or any successor thereto or assignee or transferee therefrom, is owned by Nelnet Education Loan Funding, Inc., acting through Wells Fargo Bank, National Association, not individually, but as Eligible Lender Trustee ("Eligible Lender Trustee") and continues to be pledged as collateral pursuant to the Trust Indenture dated November 15, 1985, as amended and supplemented from time to time, between Nelnet Education Loan Funding, Inc. and the
February 2004 Amendment
Exhibit 10.62
Eligible Lender Trustee, on or after April 19, 2004, then, without any notice or demand of Bank of America, Applicant shall immediately deposit with Bank of America, as cash security for Applicant's obligations to Bank of America under this Application and Agreement, an amount equal to 110% of the principal amount of such Eligible Loans guaranteed by the Colorado Student Loan Program."
Section 2.02 Amendment to Nebhelp Purchase Agreement. The definition of "Guarantee Agency" set forth in Section 1 of the Nebhelp Purchase Agreement shall be amended in its entirety to read as follows: "Guarantee Agency" means:
(i) National Student Loan Program, Inc. (NSLP); (ii) USA Funds (USAF); (iii) Tennessee Student Assistance Corporation (TSAC); (iv) California Student Aid Commission (CSAC); (v) Great Lakes Higher Education Guaranty Corporation
(GLHEGC); (vi) Pennsylvania Higher Education Assistance Authority (PHEAA); (vii) with respect to FFELP Loans transferred from the Seller to the Purchaser on or before April 19, 2004, the Colorado Student Loan Program (CSLP); and (viii) any other Guaranty Agency with which both Purchaser and Bank of America, N.A. have entered into Guarantee Agreements or which are approved by Purchaser and Bank of America, N.A., from time to time, each of which administers a Guarantee Program within a State or any successors and assigns thereof administering the Guarantee Program, and each of which has entered into a Guarantee Agreement with the Trustee on behalf of the Seller."
Section 2.03 Amendment to Union Bank Purchase Agreement. The definition of "Guarantee Agency" set forth in Section 1 of the Union Bank Purchase Agreement shall be amended in its entirety to read as follows:
"Guarantee Agency" means: (i) National Student Loan Program, Inc. (NSLP); (ii) USA Funds (USAF); (iii) Tennessee Student Assistance Corporation (TSAC); (iv) California Student Aid Commission (CSAC); (v) Great Lakes Higher Education Guaranty Corporation (GLHEGC); (vi) Pennsylvania Higher Education Assistance Authority (PHEAA); (vii) with respect to FFELP Loans transferred to Nelnet Education Loan Funding, Inc., acting by and through Wells Fargo Bank Minnesota, National Association, not individually, but as Eligible Lender Trustee, on or before April 19, 2004, the Colorado Student Loan Program (CSLP), and
(viii) any other Guaranty Agency with which Seller has entered into Guarantee Agreements or which are approved by Seller, from time to time, each of which administers a Guarantee Program within a State or any successors and assigns thereof administering the Guarantee Program, and each of which has entered into a Guarantee Agreement with the Seller."
ARTICLE III
CONDITIONS TO EFFECTIVENESS
Section 3.01 Conditions to Effectiveness. This Amendment shall become effective upon receipt by Bank of this Amendment duly executed by NELN, NELNET, Nebhelp and Union Bank.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce Bank to enter into this Amendment, each Nelnet Entity hereby represents and warrants to Bank, that, after giving effect to the execution and delivery of this Amendment and the consummation of the transactions contemplated hereby, all representations and warranties set forth in the
February 2004 Amendment
Exhibit 10.62
Letter of Credit and the Purchase Agreement by such Nelnet Entity are true and correct on the date hereof as though made on and as of such date.
ARTICLE V
MISCELLANEOUS
Section 5.01 Affirmation of Documents. Nelnet Entities hereby acknowledge and agree that all of their obligations under the Letter of Credit Agreement and the Purchase Agreements, as amended hereby, and the obligations of NELNET under the Continuing Guaranty dated May 23, 2003, shall remain in full force and effect following the execution and delivery of this Amendment, and such obligations are hereby affirmed, ratified, and confirmed by Nelnet Entities.
Section 5.02 Costs and Expenses. Nelnet Entities agree to pay on demand all costs and expenses incurred by Bank in connection with the preparation, execution, delivery, filing, administration, and recording of this Amendment and any other agreements delivered in connection with or pursuant to this Amendment, including, without limitation, the fees and out-of-pocket expenses of Haynes and Boone, LLP, counsel to Bank.
Section 5.03 Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the Nelnet Entities and Bank and their respective successors and assigns.
Section 5.04 Captions. The captions in this Amendment have been inserted for convenience only and shall be given no substantive meaning or significance whatsoever in construing the terms and provisions of this Amendment.
Section 5.05 Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered either in original, facsimile or electronic form, shall be deemed to be an original but all of which taken together shall constitute but one and the same instrument.
Section 5.06 Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Texas.
Section 5.07 FINAL AGREEMENT OF THE PARTIES. THE LETTER OF CREDIT AGREEMENT AND THE PURCHASE AGREEMENTS (INCLUDING THE EXHIBITS THERETO), AS AMENDED BY THIS AMENDMENT, REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[Remainder of Page Intentionally Left Blank; Signatures Begin on Next Page]
February 2004 Amendment
Exhibit 10.62
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the date first above written.
NELNET ENTITIES
NATIONAL EDUCATION LOAN NETWORK, INC.
NELNET, INC.

By:    /s/ Terry J. Heimes
       ----------------------------------------------------
       Name:    Terry J. Heimes, Chief Financial Officer	

NELNET EDUCATION LOAN FUNDING, INC.

By:    /s/ Jim Kruger
       ----------------------------------------------------
       Name:     /s/ Jim Kruger
                 ------------------------------------------
       Title:    Secretary
                 ------------------------------------------	

UNION BANK AND TRUST COMPANY, INDIVIDUALLY AND AS TRUSTEE

By:    /s/ James A. Baumann
       ----------------------------------------------------
       Name:     /s/ James A. Baumann
                 ------------------------------------------
       Title:    /s/ Assistant Vice President
                 ------------------------------------------	

Exhibit 10.62
BANK OF AMERICA, N. A.,

By:    /s/ Shelley K. Harper
       ----------------------------------------------------
       Shelley K. Harper, Principal	

Exhibit 10.63
NOVEMBER 2003 AMENDMENT TO
APPLICATION AND AGREEMENT FOR STANDBY LETTER OF CREDIT,
LOAN PURCHASE AGREEMENTS,
AND STANDBY STUDENT LOAN PURCHASE AGREEMENTS
THIS NOVEMBER 2003 AMENDMENT TO APPLICATION AND AGREEMENT FOR STANDBY LETTER OF CREDIT, LOAN PURCHASE AGREEMENTS, AND STANDBY STUDENT LOAN PURCHASE AGREEMENT, dated effective as of November 20, 2003 (the "Amendment") is among NATIONAL EDUCATION LOAN NETWORK, INC. (formerly known as Nelnet, Inc.), a corporation duly organized and validly existing under the laws of the State of Nevada ("NELN"), NELNET, INC. (formerly known as Nelnet Loan Services, Inc.), a corporation duly organized and validly existing under the laws of the State of Nebraska ("NELNET"), NELNET EDUCATION LOAN FUNDING, INC., a corporation organized and validly existing under the laws of the State of Nebraska ("Nebhelp"), UNION BANK AND TRUST COMPANY, a Nebraska state banking corporation ("Union Bank), and BANK OF AMERICA, N.A., a national banking association ("Bank").
PRELIMINARY STATEMENT
(1) Pursuant to that certain Application and Agreement for Standby Letter of Credit (as amended, restated, modified, and increased from time to time, the "Letter of Credit Agreement") between NELN and Bank, Bank issued letter of credit number 3056073 to Wells Fargo Bank Minnesota, National Association, for the account of NELN.
(2) Pursuant to that certain Loan Purchase Agreement dated May 23, 2003 ("Union Bank Purchase Agreement"), Union Bank agreed to purchase certain Eligible Loans (as defined in the Union Purchase Agreement) from Bank to the extent and in the manner set forth herein.
(3) Pursuant to that certain Loan Purchase Agreement dated May 23, 2003 ("Nelnet Purchase Agreement"), NELN agreed to purchase certain Eligible Loans (as defined in the Nelnet Purchase Agreement) from Nebhelp acting by and through Wells Fargo Bank Minnesota, National Association, not individually, but as Eligible Lender Trustee to the extent and in the manner set forth herein.
(4) Pursuant to that certain Standby Student Loan Purchase Agreement dated May 23, 2003 ("Nebhelp Purchase Agreement"), NELN agreed to purchase certain Eligible Loans (as defined in the Union Purchase Agreement) from Nebhelp to the extent and in the manner set forth herein.
(5) NELN, NELNET, Nebhelp, Union Bank, and Bank have entered an Amendment to Application and Agreement for Standby Letter of Credit, Loan Purchase Agreements, and Standby Student Loan Purchase Agreements dated effective as of October 21, 2003 ("Amendment").
The Union Bank Purchase Agreement, the Nelnet Purchase Agreement, and the Nebhelp Purchase Agreement shall be individually referred to herein as a "Purchase Agreement" and collectively, as the "Purchase Agreements". NELN, NELNET, Nebhelp, and Union Bank are collectively referred to herein as the "Nelnet Entities")
1
Exhibit 10.63
NELN, Nelnet, and Nebhelp have requested that for an additional temporary 30 day period beginning on the Effective Date of this Amendment, loans Guaranteed by the Colorado Student Loan Program, which are otherwise Eligible Loans, be included within the definition of "Eligible Loans" for the purposes of the Letter of Credit Agreement and the Purchase Agreements.
Accordingly, in consideration of the foregoing and the mutual covenants set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. All capitalized terms defined in the Purchase Agreements, and not otherwise defined herein shall have the same meanings herein as in the Purchase Agreements. Upon the effectiveness of this Amendment, each reference in the Letter of Credit Agreement or any Purchase Agreement to "this Agreement," "hereunder," "herein" or words of like import shall mean and be a reference to the Letter of Credit Agreement and the Purchase Agreements, each as amended hereby.
Section 1.02 References, Etc. The words "hereof," "herein" and "hereunder" and words of similar import when used in this Amendment shall refer to this Amendment as a whole and not to any particular provision of this Amendment. In this Amendment, unless a clear contrary intention appears the word "including" (and with correlative meaning "include") means including, without limiting the generality of any description preceding such term. No provision of this Amendment shall be interpreted or constructed against any person solely because that person or its legal representative drafted such provision.
ARTICLE II
AMENDMENTS TO LETTER OF CREDIT AGREEMENT AND PURCHASE AGREEMENTS
Section 2.01 Amendments. Section 2 of the Letter of Credit Agreement shall be amended by adding the following to the end thereof:
"Notwithstanding anything to the contrary set forth herein, in addition to the deposits required above, in the event any Eligible Loan (as defined in the Loan Purchase Agreements) which is guaranteed by the Colorado Student Loan Program, or any successor thereto or assignee or transferee therefrom, is owned by Nelnet Education Loan Funding, Inc., acting through Wells Fargo Bank, National Association, not individually, but as Eligible Lender Trustee ("Eligible Lender Trustee") and continues to be pledged as collateral pursuant to the Trust Indenture dated November 15, 1985, as amended and supplemented from time to time, between Nelnet Education Loan Funding, Inc. and the Eligible Lender Trustee, on or after December 19, 2003, then, without any notice or demand of Bank of America, Applicant shall immediately deposit with Bank of America, as cash security for Applicant's obligations to Bank of America under this Application and Agreement, an amount equal to 110% of the principal amount of such Eligible Loans guaranteed by the Colorado Student Loan Program."
Section 2.02 Amendment to Nebhelp Purchase Agreement. The definition of "Guarantee Agency" set forth in Section 1 of the Nebhelp Purchase Agreement shall be amended in its entirety to read as follows: "Guarantee Agency" means:
(i) National Student Loan Program, Inc. (NSLP); (ii) USA Funds (USAF); (iii) Tennessee Student Assistance Corporation (TSAC); (iv) California Student Aid
2
Exhibit 10.63
Commission (CSAC); (v) Great Lakes Higher Education Guaranty Corporation
(GLHEGC); (vi) Pennsylvania Higher Education Assistance Authority (PHEAA); (vii)
with respect to FFELP Loans transferred from the Seller to the Purchaser on or before December 19, 2003, the Colorado Student Loan Program (CSLP); and (viii) any other Guaranty Agency with which both Purchaser and Bank of America, N.A. have entered into Guarantee Agreements or which are approved by Purchaser and Bank of America, N.A., from time to time, each of which administers a Guarantee Program within a State or any successors and assigns thereof administering the Guarantee Program, and each of which has entered into a Guarantee Agreement with the Trustee on behalf of the Seller."
Section 2.03 Amendment to Union Bank Purchase Agreement. The definition of "Guarantee Agency" set forth in Section 1 of the Union Bank Purchase Agreement shall be amended in its entirety to read as follows:
"Guarantee Agency" means: (i) National Student Loan Program, Inc. (NSLP); (ii) USA Funds (USAF); (iii) Tennessee Student Assistance Corporation (TSAC); (iv) California Student Aid Commission (CSAC); (v) Great Lakes Higher Education Guaranty Corporation (GLHEGC); (vi) Pennsylvania Higher Education Assistance Authority (PHEAA); (vii) with respect to FFELP Loans transferred to Nelnet Education Loan Funding, Inc., acting by and through Wells Fargo Bank Minnesota, National Association, not individually, but as Eligible Lender Trustee, on or before December 19, 2003, the Colorado Student Loan Program (CSLP), and
(viii) any other Guaranty Agency with which Seller has entered into Guarantee Agreements or which are approved by Seller, from time to time, each of which administers a Guarantee Program within a State or any successors and assigns thereof administering the Guarantee Program, and each of which has entered into a Guarantee Agreement with the Seller."
ARTICLE III
CONDITIONS TO EFFECTIVENESS
Section 3.01 Conditions to Effectiveness. This Amendment shall become effective upon receipt by Bank of this Amendment duly executed by NELN, NELNET, Nebhelp and Union Bank.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce Bank to enter into this Amendment, each Nelnet Entity hereby represents and warrants to Bank, that, after giving effect to the execution and delivery of this Amendment and the consummation of the transactions contemplated hereby, all representations and warranties set forth in the Letter of Credit and the Purchase Agreement by such Nelnet Entity are true and correct on the date hereof as though made on and as of such date.
ARTICLE V
MISCELLANEOUS
Section 5.01 Affirmation of Documents. Nelnet Entities hereby acknowledge and agree that all of their obligations under the Letter of Credit Agreement and the Purchase Agreements, as amended hereby, and the obligations of NELNET under the Continuing Guaranty dated May 23, 2003, shall remain in full force and effect following the execution and delivery of this Amendment, and such obligations are hereby affirmed, ratified, and confirmed by Nelnet Entities.
3
Exhibit 10.63
Section 5.02 Costs and Expenses. Nelnet Entities agree to pay on demand all costs and expenses incurred by Bank in connection with the preparation, execution, delivery, filing, administration, and recording of this Amendment and any other agreements delivered in connection with or pursuant to this Amendment, including, without limitation, the fees and out-of-pocket expenses of Haynes and Boone, LLP, counsel to Bank.
Section 5.03 Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the Nelnet Entities and Bank and their respective successors and assigns.
Section 5.04 Captions. The captions in this Amendment have been inserted for convenience only and shall be given no substantive meaning or significance whatsoever in construing the terms and provisions of this Amendment.
Section 5.05 Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered either in original, facsimile or electronic form, shall be deemed to be an original but all of which taken together shall constitute but one and the same instrument.
Section 5.06 Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Texas.
Section 5.07 FINAL AGREEMENT OF THE PARTIES. THE LETTER OF CREDIT AGREEMENT AND THE PURCHASE AGREEMENTS (INCLUDING THE EXHIBITS THERETO), AS AMENDED BY THIS AMENDMENT, REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
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4
Exhibit 10.63
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the date first above written.
NELNET ENTITIES
NATIONAL EDUCATION LOAN NETWORK, INC.
NELNET, INC.

By:    /s/ Terry J. Heimes
       ---------------------------------------------------
       Name:    Terry J. Heimes, Chief Financial Officer	

NELNET EDUCATION LOAN FUNDING, INC.

By:    /s/ Terry J. Heimes
       ---------------------------------------------------
       Name:    /s/ Terry J. Heimes
                ------------------------------------------
       Title:   /s/ Chief Financial Officer
                ------------------------------------------

UNION BANK AND TRUST COMPANY, INDIVIDUALLY AND AS TRUSTEE

By:    /s/ Angie Muhleisen
       ---------------------------------------------------
       Name:    /s/ Angie Muhleisen
                ------------------------------------------
       Title:   /s/ President and CEO
                ------------------------------------------	

Exhibit 10.63
BANK OF AMERICA, N. A.,

By:    /s/ Shelley Harper
       ---------------------------------------------------
       Shelley K. Harper, Principal	

Exhibit 10.64
DECEMBER 2003 AMENDMENT TO
APPLICATION AND AGREEMENT FOR STANDBY LETTER OF CREDIT,
LOAN PURCHASE AGREEMENTS,
AND STANDBY STUDENT LOAN PURCHASE AGREEMENTS
THIS DECEMBER 2003 AMENDMENT TO APPLICATION AND AGREEMENT FOR STANDBY LETTER OF CREDIT, LOAN PURCHASE AGREEMENTS, AND STANDBY STUDENT LOAN PURCHASE AGREEMENT, dated effective as of December 19, 2003 (the "Amendment") is among NATIONAL EDUCATION LOAN NETWORK, INC. (formerly known as Nelnet, Inc.), a corporation duly organized and validly existing under the laws of the State of Nevada ("NELN"), NELNET, INC. (formerly known as Nelnet Loan Services, Inc.), a corporation duly organized and validly existing under the laws of the State of Nebraska ("NELNET"), NELNET EDUCATION LOAN FUNDING, INC., a corporation organized and validly existing under the laws of the State of Nebraska ("Nebhelp"), UNION BANK AND TRUST COMPANY, a Nebraska state banking corporation ("Union Bank), and BANK OF AMERICA, N.A., a national banking association ("Bank").
PRELIMINARY STATEMENT
(1) Pursuant to that certain Application and Agreement for Standby Letter of Credit (as amended, restated, modified, and increased from time to time, the "Letter of Credit Agreement") between NELN and Bank, Bank issued letter of credit number 3056073 to Wells Fargo Bank Minnesota, National Association, for the account of NELN.
(2) Pursuant to that certain Loan Purchase Agreement dated May 23, 2003 ("Union Bank Purchase Agreement"), Union Bank agreed to purchase certain Eligible Loans (as defined in the Union Bank Purchase Agreement) from Bank to the extent and in the manner set forth herein.
(3) Pursuant to that certain Loan Purchase Agreement dated May 23, 2003 ("Nelnet Purchase Agreement"), NELN agreed to purchase certain Eligible Loans (as defined in the Nelnet Purchase Agreement) from Nebhelp acting by and through Wells Fargo Bank Minnesota, National Association, not individually, but as Eligible Lender Trustee to the extent and in the manner set forth herein.
(4) Pursuant to that certain Standby Student Loan Purchase Agreement dated May 23, 2003 ("Nebhelp Purchase Agreement"), NELN agreed to purchase certain Eligible Loans (as defined in the Union Purchase Agreement) from Nebhelp to the extent and in the manner set forth herein.
(5) NELN, NELNET, Nebhelp, Union Bank, and Bank have entered an Amendment to Application and Agreement for Standby Letter of Credit, Loan Purchase Agreements, and Standby Student Loan Purchase Agreements dated effective as of October 21, 2003 ("Amendment").
(6) NELN, NELNET, Nebhelp, Union Bank, and Bank have entered an additional Amendment to Application and Agreement for Standby Letter of Credit, Loan Purchase Agreements, and Standby Student Loan Purchase Agreements dated effective as of November 20, 2003 ("November Amendment").
1
Exhibit 10.64
The Union Bank Purchase Agreement, the Nelnet Purchase Agreement, and the Nebhelp Purchase Agreement shall be individually referred to herein as a "Purchase Agreement" and collectively, as the "Purchase Agreements". NELN, NELNET, Nebhelp, and Union Bank are collectively referred to herein as the "Nelnet Entities")
NELN, Nelnet, and Nebhelp have requested that for an additional temporary 60 day period beginning on the Effective Date of this Amendment, loans Guaranteed by the Colorado Student Loan Program, which are otherwise Eligible Loans, be included within the definition of "Eligible Loans" for the purposes of the Letter of Credit Agreement and the Purchase Agreements.
Accordingly, in consideration of the foregoing and the mutual covenants set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. All capitalized terms defined in the Purchase Agreements, and not otherwise defined herein shall have the same meanings herein as in the Purchase Agreements. Upon the effectiveness of this Amendment, each reference in the Letter of Credit Agreement or any Purchase Agreement to "this Agreement," "hereunder," "herein" or words of like import shall mean and be a reference to the Letter of Credit Agreement and the Purchase Agreements, each as amended hereby.
Section 1.02 References, Etc. The words "hereof," "herein" and "hereunder" and words of similar import when used in this Amendment shall refer to this Amendment as a whole and not to any particular provision of this Amendment. In this Amendment, unless a clear contrary intention appears the word "including" (and with correlative meaning "include") means including, without limiting the generality of any description preceding such term. No provision of this Amendment shall be interpreted or constructed against any person solely because that person or its legal representative drafted such provision.
ARTICLE II
AMENDMENTS TO LETTER OF CREDIT AGREEMENT AND PURCHASE AGREEMENTS
Section 2.01 Amendments. Section 2 of the Letter of Credit Agreement shall be amended by adding the following to the end thereof:
"Notwithstanding anything to the contrary set forth herein, in addition to the deposits required above, in the event any Eligible Loan (as defined in the Loan Purchase Agreements) which is guaranteed by the Colorado Student Loan Program, or any successor thereto or assignee or transferee therefrom, is owned by Nelnet Education Loan Funding, Inc., acting through Wells Fargo Bank, National Association, not individually, but as Eligible Lender Trustee ("Eligible Lender Trustee") and continues to be pledged as collateral pursuant to the Trust Indenture dated November 15, 1985, as amended and supplemented from time to time, between Nelnet Education Loan Funding, Inc. and the Eligible Lender Trustee, on or after February 20, 2004, then, without any notice or demand of Bank of America, Applicant shall immediately deposit with Bank of America, as cash security for Applicant's obligations to Bank of America under this Application and Agreement, an amount equal to 110% of the principal amount of such Eligible Loans guaranteed by the Colorado Student Loan Program."
2
Exhibit 10.64
Section 2.02 Amendment to Nebhelp Purchase Agreement. The definition of "Guarantee Agency" set forth in Section 1 of the Nebhelp Purchase Agreement shall be amended in its entirety to read as follows: "Guarantee Agency" means:
(i) National Student Loan Program, Inc. (NSLP); (ii) USA Funds (USAF); (iii) Tennessee Student Assistance Corporation (TSAC); (iv) California Student Aid Commission (CSAC); (v) Great Lakes Higher Education Guaranty Corporation
(GLHEGC); (vi) Pennsylvania Higher Education Assistance Authority (PHEAA); (vii) with respect to FFELP Loans transferred from the Seller to the Purchaser on or before February 20, 2004, the Colorado Student Loan Program (CSLP); and (viii) any other Guaranty Agency with which both Purchaser and Bank of America, N.A. have entered into Guarantee Agreements or which are approved by Purchaser and Bank of America, N.A., from time to time, each of which administers a Guarantee Program within a State or any successors and assigns thereof administering the Guarantee Program, and each of which has entered into a Guarantee Agreement with the Trustee on behalf of the Seller."
Section 2.03 Amendment to Union Bank Purchase Agreement. The definition of "Guarantee Agency" set forth in Section 1 of the Union Bank Purchase Agreement shall be amended in its entirety to read as follows:
"Guarantee Agency" means: (i) National Student Loan Program, Inc. (NSLP); (ii) USA Funds (USAF); (iii) Tennessee Student Assistance Corporation (TSAC); (iv) California Student Aid Commission (CSAC); (v) Great Lakes Higher Education Guaranty Corporation (GLHEGC); (vi) Pennsylvania Higher Education Assistance Authority (PHEAA); (vii) with respect to FFELP Loans transferred to Nelnet Education Loan Funding, Inc., acting by and through Wells Fargo Bank Minnesota, National Association, not individually, but as Eligible Lender Trustee, on or before February 20, 2004, the Colorado Student Loan Program (CSLP), and
(viii) any other Guaranty Agency with which Seller has entered into Guarantee Agreements or which are approved by Seller, from time to time, each of which administers a Guarantee Program within a State or any successors and assigns thereof administering the Guarantee Program, and each of which has entered into a Guarantee Agreement with the Seller."
ARTICLE III
CONDITIONS TO EFFECTIVENESS
Section 3.01 Conditions to Effectiveness. This Amendment shall become effective upon receipt by Bank of this Amendment duly executed by NELN, NELNET, Nebhelp and Union Bank.
3
Exhibit 10.64
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce Bank to enter into this Amendment, each Nelnet Entity hereby represents and warrants to Bank, that, after giving effect to the execution and delivery of this Amendment and the consummation of the transactions contemplated hereby, all representations and warranties set forth in the Letter of Credit and the Purchase Agreement by such Nelnet Entity are true and correct on the date hereof as though made on and as of such date.
ARTICLE V
MISCELLANEOUS
Section 5.01 Affirmation of Documents. Nelnet Entities hereby acknowledge and agree that all of their obligations under the Letter of Credit Agreement and the Purchase Agreements, as amended hereby, and the obligations of NELNET under the Continuing Guaranty dated May 23, 2003, shall remain in full force and effect following the execution and delivery of this Amendment, and such obligations are hereby affirmed, ratified, and confirmed by Nelnet Entities.
Section 5.02 Costs and Expenses. Nelnet Entities agree to pay on demand all costs and expenses incurred by Bank in connection with the preparation, execution, delivery, filing, administration, and recording of this Amendment and any other agreements delivered in connection with or pursuant to this Amendment, including, without limitation, the fees and out-of-pocket expenses of Haynes and Boone, LLP, counsel to Bank.
Section 5.03 Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the Nelnet Entities and Bank and their respective successors and assigns.
Section 5.04 Captions. The captions in this Amendment have been inserted for convenience only and shall be given no substantive meaning or significance whatsoever in construing the terms and provisions of this Amendment.
Section 5.05 Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered either in original, facsimile or electronic form, shall be deemed to be an original but all of which taken together shall constitute but one and the same instrument.
Section 5.06 Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Texas.
Section 5.07 FINAL AGREEMENT OF THE PARTIES. THE LETTER OF CREDIT AGREEMENT AND THE PURCHASE AGREEMENTS (INCLUDING THE EXHIBITS THERETO), AS AMENDED BY THIS AMENDMENT, REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
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4
Exhibit 10.64
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the date first above written.
NELNET ENTITIES
NATIONAL EDUCATION LOAN NETWORK, INC.
NELNET, INC.

By:    /s/ Terry J. Heimes
       --------------------------------------------------
       Name:    Terry J. Heimes, Chief Financial Officer	

NELNET EDUCATION LOAN FUNDING, INC.

By:    /s/ Terry J. Heimes
       --------------------------------------------------
       Name:    /s/ Terry J. Heimes
                -----------------------------------------
       Title:   /s/ Chief Financial Officer
                -----------------------------------------

UNION BANK AND TRUST COMPANY, INDIVIDUALLY AND AS TRUSTEE

By:    /s/ Kenneth Backemeyer
       --------------------------------------------------
       Name:    /s/ Kenneth Backemeyer
                -----------------------------------------
       Title:   /s/ Senior Vice President
                -----------------------------------------	

Exhibit 10.64
BANK OF AMERICA, N. A.,

By:    /s/ Shelley Harper
       --------------------------------------------------
       Shelley K. Harper, Principal	

Exhibit 10.65
AGREEMENT OF LEASE RENEWAL
BY AND AMONG
MARIANNE B. JARDINE, OR HER SUCCESSOR, TRUSTEE UNDER THE
MARIANNE B. JARDINE REVOCABLE TRUST DATED SEPTEMBER 15, 1992
LANDLORD
RHODE ISLAND STUDENT LOAN AUTHORITY
TENANT
Exhibit 10.65
TERMS AND CONDITIONS
Reference
Subjects Referred To. Each Reference in this Lease Renewal to any of the following subjects shall be construed to incorporate the data for that subject in this Article:
PARTIES:
Landlord: Marianne B. Jardine, or her successor, Trustee under the Marianne B. Jardine Revocable Trust dated September 15, 1992.
MANAGING AGENT: NA
LANDLORD'S ADDRESS FOR NOTICE:

                           Summer - 80 Hillside Street
                           Saunderstown, RI  02874
                           Winter - 1341 Middle Gulf Drive 1-B
                           Sanibel, FL  33957

CHECKS TO:                 Marianne B. Jardine as Trustee

TENANT:                    RHODE  ISLAND STUDENT LOAN AUTHORITY	

TENANT'S ADDRESS FOR BILLING AND NOTICE:
ATTN: Executive Director
560 Jefferson Boulevard
Warwick, RI 02886
BUILIDING & LEASED Premises: Approximately 1,440 rentable square feet on the 2nd floor (the "Premises") in the building located at 615 Jefferson Boulevard, Warwick, RI 02886 #203.

TERM:                               Three Years
                                    Commencement Date         June 1, 2002
                                    Expiration Date           May 31, 2005

MONTHLY BASE RENT:  rent  /  sf  =  $12.00 NNN	

Condo fee = $1.91 + RE tax = $2.50 Annual Rent = $23,630.40 Monthly Rent = $1,969.20 Increase amount due on Security Deposit: $0.00 The new Tax Base is $3,599.29 The Condominium fee Base is $2,756
 
REAL ESTATE TAXES &

CONDOMINUM FEES:                    Tenant is responsible for any increases over
                                    the Base Year 1999 Real Estate taxes (actual
                                    2000 / 2001) = $3,599.29  and Base Year 2002
                                    Condominium Fees (actual 2001 = $2,756). Any
                                    increases  after  the Base Year 2001 will be
                                    billed by Landlord to Tenant.

BROKER:                             NA

RENT COMMENCES:                     June 1, 2002

PROPORTIONATE SHARE:                6.84%

UTILITES:                           All Utilities will be paid by Tenant.

PERMITTED USE OF THE PREMISES:      For  general  office  use  only  and not for
                                    retail   sales  or  bulk   storage  or  uses
                                    requiring     above    building     standard
                                    structural, electrical or HVAC facilities.

TENANT INSURANCE REQUIREMENTS:      Public Liability Insurance
                                    Bodily Injury:   $500,000
                                    Property Damage: $500,000

SECURITY DEPOSIT:                   $3,412.80

GUARANTOR:                          Rhode Island Student Loan Authority	

This Lease Renewal is on the same terms and conditions as the Initial Lease Term dated and signed by both parties June 1, 1999.
IN WITNESS WHEREOF the parties hereto have set their hands and seals in three counter part copies, each of which counterpart copy shall be deemed an original for all purposes, as of the date and year first above written:
Landlord:

By /s/ Marianne B. Jardine
   ----------------------------------
                                           Marianne B. Jardine as Trustee	

Tenant:

By:/s/ Charles P. Kelley
   ----------------------------------
   /s/ Executive Director                  Rhode Island Student Loan Authority

STATE OF FLORIDA
COUNTY OF LEE	

In ____________________________________________________________ in said County ____________________________ and State, on the _________________ day of _____________ 2002, before me personally appeared ________________________________________________, to me known and known by me to be the party executing the foregoing instrument, for and on behalf of __________________________________________ and acknowledge said instrument, by executed, to be the free act and deed, free act and deed in capacity as aforementioned, and the free act and deed of
Notary Public Commission expires ___________________
STATE OF RHODE ISLAND
COUNTY OF KENT
In ______________________________________________________________ in said County ______________________________ and State, on the _________________ day of ______________ 2002, before me personally appeared _________________________________________________, to me known and known by me to be the party executing the foregoing instrument, for and on behalf of __________________________________ and acknowledge said instrument, by executed, to be the free act and deed, free act and deed in capacity as aforementioned, and the free act and deed of ________________________________________________
Notary Public Commission expires___________________
 
Exhibit 14.1
Nelnet, Inc.
Code of Business Conduct and Ethics
for Directors, Officers and Employees
General Statement of Policy
It is the policy of Nelnet, Inc. (the "Company") and its affiliated companies that the conduct of every director, officer and employee while acting on behalf of the Company be based upon the highest ethical standards and compliance with the law. This Code of Business Conduct and Ethics affirms the policy of the Company and is a guideline to:
o promote honest and ethical conduct that reflects positively on the Company;
o maintain a corporate climate in which the integrity and dignity of each individual is valued;
o assure compliance with laws, rules and regulations that govern the Company's business activities; and
o assure the proper use of the Company's assets.
This Code does not specifically address every potential form of unacceptable conduct, and it is expected that directors, officers and employees will exercise good judgment in compliance with the principles set out in this Code. Each director, officer and employee has a duty to avoid any circumstance that would violate the letter or spirit of this Code.
Fair Dealing
Each director, officer and employee should endeavor to deal honestly and ethically with the Company's directors, officers, employees, auditors, advisors, customers, suppliers and competitors while engaged in business on behalf of the Company. Non-compliance with this Code or the law or other unethical or dishonest business practices while acting on behalf of the Company are forbidden and may result in disciplinary action, including termination.
Proper Use of Company Assets
Company assets should be used only for the legitimate business purposes of the Company. Directors, officers and employees are prohibited from using Company assets, confidential or proprietary information or position for personal gain.
-2-
Compliance with Laws, Rules and Regulations
Any transaction undertaken in the name of the Company that would violate the laws, rules or regulations of any country or its political subdivisions in which the Company conducts business is prohibited. Particular attention is directed to the laws, rules and regulations relating to discrimination, securities, antitrust, civil rights, transactions with foreign officials, safety and the environment. If any uncertainty arises as to whether a course of action is within the letter and spirit of the law, advice should be obtained from the Company's General Counsel or his designee.
Observing the law is a minimum requirement. The Company's Code envisions a level of ethical business conduct well above the minimum required by law.
1. Discrimination and Harassment
The Company is committed to providing a workplace free of discrimination and harassment based on race, color, religion, age, gender, national origin, disability, veteran status, or any other basis prohibited by applicable law. Similarly, offensive or hostile working conditions created by such harassment or discrimination will not be tolerated. Each director, officer and employee has a duty while acting on behalf of the Company to refrain from engaging in conduct that constitutes discrimination or harassment.
An officer or employee should promptly report any discrimination or harassment or any complaint of discrimination or harassment to the Head of Human Resources or to corporate legal. Additional information regarding discrimination and harassment may be found in the employee policy manual.
2. Insider Trading
Directors, officers or employees in possession of material information about the Company must abstain from trading in its securities until such information is generally and publicly available by means of a press release or other public filing. Such material "inside information" might include earnings estimates, stock and dividend activity, changes of control or management, pending mergers, sales, acquisitions, reserves numbers or other significant business information or developments. Providing such inside information to others who then trade on it is also strictly prohibited. Trading on inside information is also a violation of federal securities law.
Political Contributions
Corporate funds, credit, property or services may not be used (directly or indirectly) to support any political party or candidate for public office, or to support or oppose any ballot measure, without the prior approval of the Board. Although directors, officers and employees
-3-
are encouraged to support political parties and candidates with their personal efforts and money, the Company will not reimburse or subsidize them in any way for such political participation.
Confidential Information
Directors, officers and employees may become aware of non-public information regarding actual or potential customers, suppliers or commercial transactions of the Company, or of nonpublic technical information pertaining to the operations or potential operations of the Company. Such confidential and proprietary information is the exclusive property of the Company and each director, officer and employee is bound to keep such information in strictest confidence, except when disclosure is authorized by an officer of the Company or legally mandated. Furthermore, such information is to be used solely for Company purposes and never for the private gain of a director, officer or employee (or any member of his or her immediate family), or any third party.
Special care is required regarding the public release of information concerning the Company's business, strategies, activities and plans, the disclosure of which could influence investors trading in the Company's securities. All media contact and public statements and discussions of Company business should be coordinated with the Head of Marketing Communications and should only be made by spokespersons who have been authorized by an officer of the Company.
Conflicts of Interest
1. General
Generally, a conflict exists when the personal interests or activities of a director, officer or employee (or members of their immediate family) may influence the exercise of his or her independent judgment in the performance of one or more duties to the Company. Even the appearance of a conflict of interest may be as damaging as an actual conflict and should be avoided. Directors, officers and employees should not enter into any transaction or engage in any practice (directly or indirectly) that would tend to influence him or her to act in any manner other than in the best interests of the Company. Directors, officers and employees (or members of their immediate family) also should not exercise discretionary authority or make or influence any recommendation or decision on behalf of the Company that would result in an undisclosed personal financial benefit to such director, officer or employee (or to members of his or her immediate family).
It is not a conflict of interest for a director, officer or employee or members of their immediate family to obtain services from persons or entities who also provide services to the Company, including legal, accounting or brokerage services, loans from banks or insurance from insurance companies, at rates customary for similarly situated customers. Furthermore,
-4-
no relationship involving an employee or non-executive officer that is disclosed to and affirmatively determined by corporate legal to be immaterial and no relationship involving an executive officer or director that is disclosed to and affirmatively determined by the Board of Directors to be immaterial (and no action incidentally benefiting any such employee, officer or director as a result of such relationship) shall be deemed a conflict of interest within the meaning of this Code.
2. Gifts, Gratuities and Other Benefits
No officer or employee shall (directly or indirectly) offer or give any gift, "kickback" or other improper payment or consideration to any customer, supplier, government official or employee, or any other person in consideration for assistance or influence concerning any transaction or potential transaction involving the Company.
No officer or employee, or member of his or her immediate family, shall (directly or indirectly) solicit, accept or retain any gift, entertainment, trip, discount, service or other benefit from any organization or person doing business or competing with the Company, other than (i) modest gifts or entertainment as part of normal business courtesy and hospitality that would not influence, and would not reasonably appear to be capable of influencing, such officer or employee to act in any manner not in the best interest of the Company or (ii) acceptance of a nominal benefit that has been disclosed to and approved by the officer's or employee's supervisor.
Written approval by an officer of the Company shall be required for any gift, entertainment, trip, discount, service, or other benefit from an organization or person doing business with or competing with the Company which exceeds $250 in value (or such lesser value as may be determined through written notice by an Officer of the Company for a Department or Division under his or her supervision). A copy of such written approval shall be provided to corporate legal.
Corporate Opportunities
Directors, officers and employees are prohibited from taking for themselves personally (or for members of their immediate family) any opportunity that may be of interest to the Company that is discovered through the use of corporate property, information or position unless such opportunity is first offered to the Company and the Company affirmative determines not to pursue it.
Other Organizations
Each officer and employee is expected to devote his or her full time and efforts during normal working hours to the service of the Company. No officer or employee shall engage in
-5-
any business or secondary employment that interferes with his or her obligations and responsibilities to the Company.
No officer or employee of the Company may serve on the board of directors of any corporation not owned or controlled by the Company, other than a nonprofit, charitable, religious, civic or educational organization, without the prior written approval of one of the Company's Co-Chief Executive Officers, or, for the Co-Chief Executive Officers, without the prior approval of the Company's Board of Directors.
Unless disclosed to and approved by the co-chief executives, no officer or employee or any member of their immediate families may directly or indirectly have a financial interest (whether as an investor, lender, employee or other service provider) in any company that is selling supplies, furnishing services or otherwise doing business or competing with the Company. This provision does not apply to an officer or employee or members of their immediate family owning the securities of a publicly traded entity as long as such ownership represents less than five percent (5%) of the outstanding securities.
Employment of Family Members and Employee Relationships
The Company does not prohibit spouses, parents, children and other persons related by blood or marriage from working for the Company simultaneously. However, all such employees must be hired by disinterested personnel strictly on the basis of merit and without regard to family relationships. Reporting relationships between family members are to be avoided to the maximum extent possible, to eliminate even the appearance of possible favoritism based on family ties. For these reasons, employees should disclose to the Company the names and current job titles of all family members who work directly or indirectly for the Company.
The Company continually strives to promote positive and productive working relationships between its employees and to fully comply with the letter and spirit of all laws prohibiting discrimination and sexual harassment. While the Company does not wish to unduly interfere with the private lives of its employees, some limitations on personal relationships in the workplace are necessary in order to prevent actual or perceived favoritism, problems with supervision, security and morale and possible claims of discrimination or harassment. For these reasons, an employee may not engage in romantic or sexual encounters or relationships with any other employee with whom he or she is in a supervisory or reporting relationship. This includes the immediate supervisor, any upper level supervisor (that is, anyone up the supervisory chain), any person to whom the employee directly or indirectly reports, anyone who evaluates the employee and any person whose input is regularly sought for the evaluation of an employee.
-6-
The Company recognizes the importance of developing close working relationships among employees and this policy is not intended to prohibit friendships that naturally develop in a work setting or social interaction among employees.
If two employees become subject to the restrictions of this policy after they are hired, one or both of the employees must seek a transfer or reassignment that eliminates the reporting or supervisory relationship. The decision as to which of the individuals will remain within the department and/or with the Company must be made by the two employees within three (3) months. If no decision has been made during this time, the Company may take whatever action it determines to be appropriate, including transfers, reassignments or termination of one or both of the employees.
Accounting and Reporting
Every officer and employee is required to follow the Company's accounting policies, including the business expense policies. All accounting records should accurately reflect and describe corporate transactions. The recordation of such data must not be falsified or altered in any way to conceal or distort assets, liabilities, revenues, expenses or the nature of the activity. The Company's accounting policies may be obtained from the Company's head of accounting.
All public disclosures made by the Company, including disclosures in reports and documents filed with or submitted to the Securities and Exchange Commission, shall be accurate and complete in all material respects. Each director, officer and employee is expected to carefully consider all inquiries from the Company related to the Company's public disclosure requirements and promptly supply complete and accurate responses.
If any officer or employee has any questions or concerns about any of the Company's public disclosures, he or she should immediately contact the Company's head of marketing communications.
Compliance and Enforcement
Questions of interpretation or application of this Code with respect to a particular situation should be addressed to corporate legal or its designees. Such requests may be made in writing or orally and will be handled discretely.
Compliance with this Code is a condition of employment for each officer and employee. Conduct contrary to this Code is outside of the scope of employment. Employees are encouraged to talk to supervisors, Human Resource Department representatives or an officer of the Company when in doubt about the best course of action in a particular situation.
-7-
Any suspected violation of applicable laws, rules or regulations or this Code, including any transaction or relationship that reasonably could be expected to give rise to a conflict of interest, should be reported promptly to corporate legal or its designee, without regard to the usual lines of reporting.
No adverse action will be taken against any employee for making a complaint or disclosing information in good faith, and any officer or employee who retaliates in any way against an employee who in good faith reports any violation or suspected violation of the Code of Conduct will be subject to disciplinary action, including termination.
Any violation of this Code of Conduct will be grounds for immediate disciplinary action including termination.
Amendment, Modification and Waiver
Any amendment or modification of this Code must be approved by the Company's Board of Directors. Any waiver of this Code for non-executive officers or employees may be granted by a co-Chief Executive Officer. Any waiver of this Code for directors or executive officers may be granted only by the Board of Directors or a duly authorized committee of the Board of Directors, subject to the disclosure and other provisions of the Securities Exchange Act of 1934, the rules promulgated thereunder and the applicable rules of the New York Stock Exchange.
 
Exhibit 14.2
Nelnet Education Loan Funding, Inc Code of Business Conduct and Ethics for Directors and Officers
General Statement of Policy
It is the policy of Nelnet Education Loan Funding, Inc. (the "Company") that the conduct of every Director and officer while acting on behalf of the Company be based upon the highest ethical standards and compliance with the law. This Code of Business Conduct and Ethics affirms the policy of the Company and is a guideline to:
o promote honest and ethical conduct that reflects positively on the Company;
o maintain a corporate climate in which the integrity and dignity of each individual is valued;
o assure compliance with laws, rules and regulations that govern the Company's business activities; and
o assure the proper use of the Company's assets.
This Code does not specifically address every potential form of unacceptable conduct, and it is expected that Directors and officers will exercise good judgment in compliance with the principles set out in this Code. Each Director and officer has a duty to avoid any circumstance that would violate the letter or spirit of this Code.
Fair Dealing
Each Director and officer should endeavor to deal honestly and ethically with the Company's Directors, officers, auditors, advisors, customers, suppliers and competitors while engaged in business on behalf of the Company. Non-compliance with this Code or the law or other unethical or dishonest business practices while acting on behalf of the Company are forbidden and may result in disciplinary action, including termination.
Proper Use of Company Assets
Company assets should be used only for the legitimate business purposes of the Company. Directors and officers are prohibited from using Company assets, confidential or proprietary information or position for personal gain.
Compliance with Laws, Rules and Regulations
Any transaction undertaken in the name of the Company that would violate the laws, rules or regulations of any country or its political subdivisions in which the Company conducts business is prohibited. Particular attention is directed to the laws, rules and regulations relating to discrimination, securities, antitrust, civil rights, transactions with foreign officials, safety and the environment. If any uncertainty arises as to whether a course of action is within the letter and spirit of the law, advice should be obtained from the Company's General Counsel or his designee.
Observing the law is a minimum requirement. The Company's Code envisions a level of ethical business conduct well above the minimum required by law.
Exhibit 14.2
1. Discrimination and Harassment
The Company is committed to providing a workplace free of discrimination and harassment based on race, color, religion, age, gender, national origin, disability, veteran status, or any other basis prohibited by applicable law. Similarly, offensive or hostile working conditions created by such harassment or discrimination will not be tolerated. Each Director and officer has a duty while acting on behalf of the Company to refrain from engaging in conduct that constitutes discrimination or harassment.
An officer should promptly report any discrimination or harassment or any complaint of discrimination or harassment to the Company's president and to the head of human resources of Nelnet, Inc. ("Nelnet") or corporate legal. Additional information regarding discrimination and harassment may be found in Nelnet's employee policy manual.
2. Insider Trading
Directors and officers in possession of material information about the Company or Nelnet must abstain from trading in securities of Nelnet until such information is generally and publicly available by means of a press release or other public filing. Such material "inside information" might include earnings estimates, stock and dividend activity, changes of control or management, pending mergers, sales, acquisitions, reserves numbers or other significant business information or developments. Providing such inside information to others who then trade on it is also strictly prohibited. Trading on inside information is also a violation of federal securities law.
Political Contributions
Corporate funds, credit, property or services may not be used (directly or indirectly) to support any political party or candidate for public office, or to support or oppose any ballot measure, without the prior approval of the Board of Directors. Although Directors and officers are encouraged to support political parties and candidates with their personal efforts and money, the Company will not reimburse or subsidize them in any way for such political participation.
Confidential Information
Directors and officers may become aware of non-public information regarding actual or potential customers, suppliers or commercial transactions of the Company, or of nonpublic technical information pertaining to the operations or potential operations of the Company. Such confidential and proprietary information is the exclusive property of the Company and each Director and officer is bound to keep such information in strictest confidence, except when disclosure is authorized by an officer of the Company or legally mandated. Furthermore, such information is to be used solely for Company purposes and never for the private gain of a Director and officer (or any member of his or her immediate family), or any third party.
Special care is required regarding the public release of information concerning the Company's business, strategies, activities and plans, the disclosure of which could influence investors trading in the Company's securities. All media contact and public statements and discussions of Company business should be coordinated with the Nelnet's head of marketing communications and should only be made by spokespersons who have been authorized by an officer of the Company.
Exhibit 14.2
Conflicts of Interest
1. General
Generally, a conflict exists when the personal interests or activities of a Director and officer (or members of their immediate family) may influence the exercise of his or her independent judgment in the performance of one or more duties to the Company. Even the appearance of a conflict of interest may be as damaging as an actual conflict and should be avoided. Directors and officers should not enter into any transaction or engage in any practice (directly or indirectly) that would tend to influence him or her to act in any manner other than in the best interests of the Company. Directors and officers (or members of their immediate family) also should not exercise discretionary authority or make or influence any recommendation or decision on behalf of the Company that would result in an undisclosed personal financial benefit to such Director and officer (or to members of his or her immediate family).
It is not a conflict of interest for a Director and officer (or to members of their immediate family) to obtain services from persons or entities who also provide services to the Company, including legal, accounting or brokerage services, loans from banks or insurance from insurance companies, at rates customary for similarly situated customers. Furthermore, no relationship involving an executive officer or Director that is disclosed to and affirmatively determined by the Board of Directors to be immaterial (and no action incidentally benefiting any such officer or Director as a result of such relationship) shall be deemed a conflict of interest within the meaning of this Code.
2. Gifts, Gratuities and Other Benefits
No officer or Director shall (directly or indirectly) offer or give any gift, "kickback" or other improper payment or consideration to any customer, supplier or government official, or any other person in consideration for assistance or influence concerning any transaction or potential transaction involving the Company.
No officer or Director, or member of his or her immediate family, shall (directly or indirectly) solicit, accept or retain any gift, entertainment, trip, discount, service or other benefit from any organization or person doing business or competing with the Company, other than (i) modest gifts or entertainment as part of normal business courtesy and hospitality that would not influence, and would not reasonably appear to be capable of influencing, such officer or Director to act in any manner not in the best interest of the Company or (ii) acceptance of a nominal benefit that has been disclosed.
Written approval by an officer or Director of the Company shall be required for any gift, entertainment, trip, discount, service, or other benefit from an organization or person doing business with or competing with the Company which exceeds $250 in value (or such lesser value as may be determined through written notice by an Officer of the Company for a Department or Division under his or her supervision). A copy of such written approval shall be provided to Nelnet corporate legal.
Exhibit 14.2
Corporate Opportunities
Directors and officers are prohibited from taking for themselves personally (or for members of their immediate family) any opportunity that may be of interest to the Company that is discovered through the use of corporate property, information or position unless such opportunity is first offered to the Company and the Company affirmative determines not to pursue it.
Other Organizations
Each officer is expected to devote his or her full time and efforts during normal working hours to the service of the Company or its affiliates. No officer shall engage in any business or secondary employment that interferes with his or her obligations and responsibilities to the Company or its affiliates.
No officer of the Company may serve on the Board of Directors of any corporation not owned or controlled by or under common control with the Company or Nelnet, other than a nonprofit, charitable, religious, civic or educational organization, without the prior written approval of one of the president of the Company.
Unless disclosed to and approved by the president of the Company, no officer (or any member of their immediate families) may directly or indirectly have a financial interest (whether as an investor, lender or other service provider) in any company that is selling supplies, furnishing services or otherwise doing business or competing with the Company. This provision does not apply to an officer (or members of their immediate family) owning the securities of a publicly traded entity as long as such ownership represents less than five percent (5%) of the outstanding securities.
Accounting and Reporting
Every officer is required to follow the Company's accounting policies, including the business expense policies. All accounting records should accurately reflect and describe corporate transactions. The recordation of such data must not be falsified or altered in any way to conceal or distort assets, liabilities, revenues, expenses or the nature of the activity. The Company's accounting policies may be obtained from the Nelnet's head of accounting.
All public disclosures made by the Company, including disclosures in reports and documents filed with or submitted to the Securities and Exchange Commission, shall be accurate and complete in all material respects. Each Director and officer is expected to carefully consider all inquiries from the Company related to the the Company's public disclosure requirements and promptly supply complete and accurate responses.
If any officer has any questions or concerns about any of the Company's public disclosures, he or she should immediately contact the president of the Company.
Compliance and Enforcement
Questions of interpretation or application of this Code with respect to a particular situation should be addressed to the Company's corporate legal or its designees. Such requests may be made in writing or orally and will be handled discretely.
Any suspected violation of applicable laws, rules or regulations or this Code, including any transaction or relationship that reasonably could be expected to give
Exhibit 14.2
rise to a conflict of interest, should be reported promptly to corporate legal or its designee, without regard to the usual lines of reporting.
No adverse action will be taken against any officer for making a complaint or disclosing information in good faith, and any officer who retaliates in any way against an individual who in good faith reports any violation or suspected violation of the Code of Conduct will be subject to disciplinary action, including termination.
Any violation of this Code of Conduct will be grounds for immediate disciplinary action including termination.
Amendment, Modification and Waiver
Any amendment or modification of this Code must be approved by the Company's Board of Directors. Any waiver of this Code for officers may be granted only by the Board of Directors or a duly authorized committee of the Board of Directors, subject to the disclosure and other provisions of the Securities Exchange Act of 1934, the rules promulgated there under.
 
Exhibit 21.1
List of Direct and Indirect Subsidiaries of Nelnet, Inc.
Direct Subsidiary:
National Education Loan Network, Inc. (organized in Nevada)
Indirect Subsidiaries:
Nelnet Corporate Services, Inc. (organized in Nevada); Nelnet Guarantee Services, Inc.(organized in Florida); Idaho Financial Associates, Inc. (organized in Idaho); Nelnet Marketing Solutions, Inc. (organized in Florida); National Higher Education Loan Program, Inc. (organized in Nebraska); Charter Services, Inc. (organized in New York); Nelnet Canada Inc. (organized in Canada); EFS, Inc. (organized in Indiana); 5280 Solutions, Inc. (organized in Colorado); FirstMark Services, LLC (organized in Colorado); Student Partner Services, Inc. (organized in Virginia); GuaranTec, LLP (organized in Florida); ClassCredit, Inc. (organized in Florida); InTuition, Inc. (organized in Florida); EFS Finance Co. (organized in Indiana); EFS Services, Inc. (organized in Indiana); NELnet Student Loan Warehouse Corporation-1 (organized in Nevada); Nelnet Student Loan Funding Management Corporation (organized in Nevada); Nelnet Student Loan Funding, LLC (organized in Delaware); NELNET Student Loan Corporation-1 (organized in Nevada); NELNET Student Loan Corporation-2 (organized in Nevada); NHELP-I, Inc. (organized in Nevada); NHELP-II Inc. (organized in Nevada); NHELP-II, LLC (organized in Nevada); NHELP-III, Inc. (organized in Nevada); EMT Corp. (organized in Indiana); NELnet Private Student Loan Corporation-1 (organized in Nevada); Nelnet Education Loan Funding, Inc. (f/k/a NEBHELP, INC.) (organized in Nebraska); MELMAC, Inc. (organized in Nevada); MELMAC Enterprises, Inc. (organized in Nevada); MELMAC, LLC (organized in Delaware); Nelnet Mentor, LLC (organized in Nebraska); Premiere Credit of North America LLC (organized in Indiana); Nelnet New England, Inc. (organized in Rhode Island)
 
Exhibit 23.1
Independent Auditors' Consent
The Board of Directors
Nelnet, Inc.:
We consent to incorporation by reference in the registration statement No. 333-112374, on Form S-8 of Nelnet, Inc. of our report dated February 27, 2004, with respect to the consolidated balance sheets of Nelnet, Inc. as of December 31, 2003 and 2002, and the related consolidated statements of income, shareholders' equity, and cash flows for each of the years in the three-year period ended December 31, 2003, which report appears in the December 31, 2003 annual report on Form 10-K of Nelnet, Inc.

/s/ KPMG LLP

Lincoln, Nebraska
March 26, 2004	

Exhibit 31.1
I, Michael S. Dunlap, certify that:
1. I have reviewed this annual report on Form 10-K of Nelnet, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
c) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting and
5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and to the audit committee of the registrant's board of directors (or persons performing the equivalent function):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

                                        /s/ MICHAEL S. DUNLAP
                                        ----------------------------------------
Dated:  March 26, 2004                  Michael S. Dunlap
                                        Chairman and Co-Chief Executive Officer
                                        (Co-Principal Executive Officer)	

Exhibit 31.2
I, Stephen F. Butterfield, certify that:
1. I have reviewed this annual report on Form 10-K of Nelnet, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
c) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and to the audit committee of the registrant's board of directors (or persons performing the equivalent function):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

                                  /s/ STEPHEN F. BUTTERFIELD
                                  ------------------------------------------
Dated:  March 26, 2004            Stephen F. Butterfield
                                  Vice Chairman and Co-Chief Executive Officer
                                  (Co-Principal Executive Officer)	

Exhibit 31.3
I, Terry J. Heimes, certify that:
1. I have reviewed this annual report on Form 10-K of Nelnet, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
a) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and to the audit committee of the registrant's board of directors (or persons performing the equivalent function):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

                                /s/ TERRY J. HEIMES
                                --------------------------------------------
Dated:  March 26, 2004          Terry J. Heimes
                                Chief Financial Officer (Principal Financial
                                Officer and Principal Accounting Officer)	

Exhibit 32
The undersigned hereby certify that this Form 10-K, containing Nelnet, Inc.'s (the "Company") consolidated financial statements as of and for the year ended December 31, 2003, fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934, as amended, and the information contained in this Form 10-K fairly presents, in all material respects, the financial condition and results of operations of the Company.

                                   /s/ MICHAEL S. DUNLAP
                                   --------------------------------------------
Dated:  March 26, 2004             Michael S. Dunlap
                                   Chairman and Co-Chief Executive Officer
                                   (Co-Principal Executive Officer)

                                   /s/ STEPHEN F. BUTTERFIELD
                                   --------------------------------------------
Dated:  March 26, 2004             Stephen F. Butterfield
                                   Vice Chairman and Co-Chief Executive Officer
                                   (Co-Principal Executive Officer)

                                   /s/ TERRY J. HEIMES
                                   --------------------------------------------
Dated:  March 26, 2004             Terry J. Heimes
                                   Chief Financial Officer (Principal Financial
                                   Officer and Principal Accounting Officer)