Exhibit 99.1
LOAN PURCHASE AGREEMENT
This Loan Purchase Agreement made and entered into as of this 1st
day of
December, 2006 by and between Nelnet Student Loan Trust 2006-3, a
Delaware
statutory trust (the "Purchaser") acting by and through Zions First
National
Bank, not individually but as eligible lender trustee (the
"Trustee") under the
Eligible Lender Trust Agreement (as defined herein) and Nelnet
Student Loan
Funding, LLC, a limited liability company organized and existing
under the laws
of the State of Delaware and having its principal offices at 121
South 13th
Street, Suite 201, in the city of Lincoln, County of Lancaster,
State of
Nebraska, acting by and through Zions First National Bank, not
individually, but
as eligible lender trustee (the "Seller").
W I T N E S S E T H :
WHEREAS, the Purchaser, by and through the Trustee, desires to
purchase
from the Seller certain FFELP Loans (as defined below) to assist
students in
obtaining a post-secondary education, title to which will be held
by the Trustee
pursuant to the Eligible Lender Trust Agreement, and the Seller
desires to sell
certain FFELP Loans to the Purchaser, title to which will be held
by and through
the Trustee, in accordance with the terms and conditions of this
Loan Purchase
Agreement.
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 FFELP
Loan.
"CERTIFICATE OF INSURANCE" means a certificate of federal loan
insurance
issued with respect to a FFELP 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 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.
"Conveyed Property" has the meaning set forth in Section 13
hereof.
"ELIGIBLE LENDER TRUST AGREEMENT" means the Eligible Lender
Trust
Agreement dated as of December 1, 2006, between the Trustee and the
Purchaser,
as the same may be amended, modified, supplemented, restated or
otherwise
altered.
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"ELIGIBLE LOAN" means a FFELP Loan authorized to be acquired by
the
Purchaser by and through the Trustee which on the date sold
hereunder (i) is
either Insured or Guaranteed; (ii) 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; (iii)
complies with each
representation and warranty with respect thereto contained in
Exhibit E attached
hereto; and (iv) meets the other criteria set forth in the Loan
Purchase
Regulations and is eligible for purchase under the terms of the
Financing
Agreement.
"FEDERAL CONTRACTS" means all agreements between a Guarantee 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 FFELP Loans and other student loans insured or guaranteed
by any
Guarantee Agency and federal interest subsidy payments and Special
Allowance
Payments, if applicable, to holders of qualifying student loans
guaranteed by
any Guarantee Agency.
"FFELP LOANS" means those specific loans acquired by the Trustee,
on
behalf of the Purchaser, 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
pursuant to the Federal Family Education Loan Program and the
Higher Education
Act.
"FINANCING AGREEMENT" means the Indenture of Trust, dated as of
December
1, 2006, by and between the Purchaser and the Indenture Trustee, as
the same may
be amended, modified, supplemented, restated or otherwise altered,
which is
utilized to finance the Purchaser's purchase of the FFELP Loans
under this Loan
Purchase Agreement.
"GUARANTEE" or "GUARANTEED" means, with respect to a FFELP Loan,
the
guarantee by the Guarantee Agency, in accordance with the terms and
conditions
of the 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 the
Guarantee
Agency for losses incurred by it on defaulted FFELP Loans
guaranteed by it to
the extent of the maximum reimbursement allowed by the Federal
Contracts.
"GUARANTEE 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 Trustee on
behalf of the
Purchaser.
"GUARANTEE AGREEMENT" means the Federal Contracts, an agreement
between
a Guarantee Agency and either the Trustee or the Seller providing
for the
Guarantee by such Guarantee Agency of the principal of and accrued
interest on
FFELP Loans to Borrowers, made or acquired by the Trustee or the
Seller from
time to time, and any other similar guarantee or agreement issued
by a Guarantee
Agency to the Purchaser or the Trustee pertaining to FFELP
Loans.
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"GUARANTEED LOANS" means FFELP Loans that are Guaranteed.
"GUARANTEE PROGRAM" means a Guarantee Agency's student loan
guaranty
program pursuant to which such Guarantee 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.
"INDENTURE TRUSTEE" means Zions First National Bank acting in
its
capacity as indenture trustee under the Financing Agreement, and
not in its
individual capacity.
"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
Purchaser, as may be adopted by the Purchaser from time to time
(with the
consent of any persons required under the terms of the Financing
Agreement),
which pertain to the Program, which shall incorporate all
requirements specified
in any indentures or other financing arrangements to which the
Purchaser is
subject.
"LOAN TRANSFER SCHEDULE" means a written schedule on a form
provided by
the Purchaser or its servicing agent identifying the Borrower on
the FFELP Loans
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).
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"MPN LOAN" means a FFELP Loan evidenced by a Master Note.
"PROGRAM" means the Purchaser's FFELP Loan acquisition program
under
which the Purchaser, acting by and through the Trustee will acquire
FFELP Loans
to assist students in obtaining a post-secondary education.
"PURCHASER" means Nelnet Student Loan Trust 2006-3, a Delaware
statutory
trust.
"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 Nelnet Student Loan Funding, LLC, a Delaware
limited
liability company, which is performing this Loan Purchase Agreement
by and
through its eligible lender trustee 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 Guarantee Agency with respect to Guaranteed Loans,
identified in the
introduction to this Loan Purchase Agreement, which is selling
FFELP Loans to
the Purchaser hereunder.
"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.
"TRUSTEE" means Zions First National Bank acting in its capacity
as
eligible lender trustee under the Eligible Lender Trust Agreement,
and not in
its individual capacity.
"UCC" means the Uniform Commercial Code as from time to time
enacted and
in effect in an applicable jurisdiction.
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
agrees to sell to the Trustee, acting on behalf of the Purchaser,
and
the Purchaser, acting by and through the Trustee under the
Eligible
Lender Trust Agreement on behalf of the Purchaser, agrees to buy
from
the Seller, a portfolio of FFELP Loans in the aggregate unpaid
principal
amount as set forth in
the applicable Loan Transfer Addendum
substantially in the form set forth in Exhibit A hereto and all
other
Conveyed Property related to such FFELP Loans. Portfolios of FFELP
Loans
and all other Conveyed Property related to such FFELP Loans may
be
purchased hereunder from the Seller by the Purchaser by and through
the
Trustee from time to time in the future, if the parties hereto
execute
and deliver a related Loan Transfer Addendum for each such purchase
of a
portfolio substantially in the form set forth in Exhibit A hereto,
and
if the Seller executes and delivers to the Purchaser all
documents
required under Section 4 hereof as of the applicable Loan Purchase
Date.
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Each such purchase of a 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 Purchaser, not less than five (5)
days
prior to the applicable Loan Purchase Date. Consummation of the
sale of
each portfolio of such FFELP Loan and all other Conveyed
Property
related to such FFELP Loans pursuant to a Loan Transfer Addendum
shall
require execution and delivery to the Purchaser of the Seller's
Closing
Certificate in the form of Exhibit B hereto (and delivery of
the
documents described in Exhibit B hereto), and execution and
delivery by
the Seller of the blanket endorsement and bill of sale
substantially 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
Trustee
on behalf of the Purchaser constitutes a true sale of each FFELP
Loans
sold hereunder and that neither the Seller's interest in nor title
to
such FFELP Loans shall thereafter become or be deemed property of
the
Seller for any purpose under applicable state or federal law,
unless and
until such FFELP Loan is repurchased by the Seller pursuant to the
terms
of this Loan Purchase Agreement.
(b) Delivery and payment for the FFELP Loans and all other
Conveyed Property related to the FELP Loans sold hereunder shall
take
place at a location and on a date (the "Loan Purchase Date") to
be
specified by the Purchaser. The applicable Loan Purchase Date shall
be
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 Purchaser agrees to purchase the FFELP Loans by
and
through the Trustee and all other Conveyed Property related to the
FFELP
Loans sold hereunder at a price agreed upon and specified in the
Loan
Transfer Addendum as set forth in Exhibit A. 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
Purchaser of any FFELP Loan, be required to pay to the Purchaser 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 Payments received by the 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 Purchaser.
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(d) Subject to the terms and conditions of this Loan Purchase
Agreement, Seller shall sell to the Purchaser, by and through
the
Trustee, all FFELP 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
Purchaser
hereunder, then Seller shall rebate the premiums paid by the
Purchaser
to Seller in connection with the purchase of said FFELP Loan by
paying
to the Purchaser an amount equal to the same percentage of the
principal
balance of said FFELP Loan then outstanding as was originally paid
by
the Purchaser 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 of Issuance (whether changing its jurisdiction of organization
or
organizing under an additional jurisdiction) without giving 30
days
prior written notice of such action to the Purchaser. 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 Purchaser's interests in the FFELP
Loans.
Section 4. CONDITIONS OF PURCHASE. The Purchaser's obligation
to
purchase and pay for the FFELP Loans hereunder by and through the
Trustee as of
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 applicable Loan Purchase Date.
(b) Any notification to or approval by the Secretary of
Education
or a Guarantee 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
Purchaser.
(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.
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(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 Purchaser.
(e) The Purchaser shall receive an opinion of the Seller's
counsel, dated as of the first Loan Purchase Date covering such
first
sale and any other sale of FFELP Loans, in form and substance
satisfactory to the Purchaser and the Trustee 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, and (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 Purchaser, a perfected
valid
security interest in the FFELP Loans subject to no prior liens, (x)
if
the Purchaser and the Seller are affiliates, that 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 Purchaser 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 Purchaser or its
assignees,
(xi) if the Seller is the parent of the Purchaser, if the Seller
became
a debtor under the Bankruptcy Code, a court would not disregard
the
separate identity of the Purchaser so that the assets of the
Seller
would be consolidated with and become a part of the Seller's
bankruptcy
estate, and (xii) 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.
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(f) Delivery by the Seller to the Purchaser on or before the
applicable Loan Purchase Date 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 Financing Statements evidencing the transfer from the
Seller
to the Trustee on behalf of the Purchaser, and UCC lien
searches
sufficiently in advance of the Loan Purchase Date so as to permit
review
thereof by the Purchaser to its satisfaction, if either or both
are
requested by the Purchaser or a party to the Financing Agreement;
and
UCC termination statements or releases, if any, to the extent
necessary
to release any security interest granted by the Seller in any
FFELP
Loan.
(g) Delivery by the Seller to the Purchaser, 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 Purchaser to 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 of the first sale of FFELP Loans hereunder in form and
substance satisfactory to the Purchaser and Trustee and a
certificate
dated as of the date of the first sale of FFELP Loans hereunder of
the
certificates attached to the true sale/non-consolidation opinion
and the
perfection opinion of Kutak Rock LLP, each dated as of
approximately
even date therewith.
Section 5. REJECTION
OF FFELP LOANS PRIOR TO SALE.
(a)
If prior to the sale of a FFELP Loan under this Loan Purchase
Agreement (i) the Seller will be 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 or (ii)
the
Purchaser determines that the Seller will be unable to fulfill one
or
more covenants or conditions of this Loan Purchase Agreement as to
a
FFELP Loan, or (iii) the Purchaser, in its reasonable judgment,
deems
that a FFELP Loan will not comply with the terms and conditions of
this
Loan Purchase Agreement or will not be delivered in compliance with
such
terms and conditions, or (iv) the Purchaser, in its reasonable
judgment
deems that a FFELP Loan will be for any reason unacceptable to it,
then
the Purchaser, within thirty days prior to the applicable 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) on
the
applicable Loan Purchase Date and such FFELP Loan shall not be
sold
under this Loan Purchase Agreement on such Loan Purchase Date..
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(b) If the Purchaser rejects a FFELP Loan pursuant to
Subsection
5(a), any such FFELP Loan shall be returned to the Seller by
registered
mail, together with a letter identifying each returned FFELP Loan
and
stating the basis for its return. The Purchaser shall cause any
FFELP
Loan returned to the Seller which has been endorsed to the Trustee
to be
endorsed by the Trustee to the Seller in the form set forth in
Exhibit F
hereto.
(c) The liability of the Purchaser 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:
(i) any
representation or warranty made or furnished by the
Seller set forth in Exhibit E to this Loan Purchase
Agreement shall prove to have b
