redactedexhibit1045to10k







CONFIDENTIAL   FIRSTMARK SERVICES   Page 1   Exhibit 10.45   PORTIONS OF THIS EXHIBIT HAVE BEEN REDACTED PURSUANT TO A REQUEST FOR   CONFIDENTIAL TREATMENT BY NELNET, INC. UNDER RULES AND REGULATIONS   PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION.  THE REDACTED   PORTIONS ARE MARKED WITH [*****] AND HAVE BEEN FILED SEPARATELY WITH   THE SECURITIES AND EXCHANGE COMMISSION ALONG WITH SUCH REQUEST FOR   CONFIDENTIAL TREATMENT.   PRIVATE STUDENT LOAN   ORIGINATION AND SERVICING AGREEMENT   This agreement is entered into and effective as of the 22nd day of December, 2014, by and between   Nelnet Servicing, LLC, d/b/a Firstmark Services,  a Nebraska limited liability company,   (“Firstmark”), and Union Bank and Trust Company, a Nebraska state banking corporation,   (“Lender”).   WHEREAS, Firstmark provides processing services related to the origination and servicing of   Education Loans for lenders; and,   WHEREAS, Lender in the ordinary course of its business makes or acquires, or intends to make   or acquire Education Loans; and,   WHEREAS, Firstmark agrees to process and service Education Loans for Lender pursuant to the   Servicing Guidelines, and Lender therefore desires to retain Firstmark for such services.   NOW THEREFORE, in consideration of the premises and the mutual covenants hereinafter set   forth, the parties agree as follows:   ARTICLE I – DEFINITIONS   1-1. “Affiliate” means any individual, corporation, partnership, association or business that   directly or indirectly through one or more intermediaries, controls, or is controlled by, or is   under common control with a party or its successors.  The term “control” including the terms   “controlling,” “controlled by,” and “under common control with” means the possession, direct   or indirect, of the power to direct or cause the direction of the management and policies of a   corporation, partnership, association or business, whether through the ownership of voting   shares, by contract or otherwise. Affiliates shall include such entities whether now existing or   later established by investment, merger or otherwise, including the successors and assigns of   such entities.   1-2. “Agreement” means this Agreement.    





 







CONFIDENTIAL   FIRSTMARK SERVICES   Page 2   1-3. “Applicable Law” means federal, state or local statute, rule, regulation or similar legal   requirement applicable to processing the origination and servicing of Education Loans.   1-4. “Applicable Requirements” means each of the following, as applicable: (i) all contractual   obligations under this Agreement and under the Loan Documents; (ii) Applicable Law, (iii)   the Underwriting Guidelines, (iv) the Servicing Guidelines; and (v) applicable School   requirements.   1-5. “Borrower” means a maker of a promissory note with respect to an Education Loan.   1-6. “Business Day” means any day other than a Saturday, Sunday, or a day on which the   banking institutions in the city in which a payment is received or a disbursement hereunder   must be initiated are authorized or required by law or executive order to close.   1-7. “Claims” means claims, liabilities, losses, damages, costs, expenses and reasonable   attorney's fees asserted against or incurred by a party in connection with a dispute by or the   assertions of a third party which arise out of the relationship created by the Agreement.   1-8. “Confidential Information” has the meaning given such term in Section III-11.a. hereof.   1-9. “Customer Identification Program” means a process whereby Firstmark screens and   monitors applicants under certain of the regulations promulgated by the Office of Foreign   Assets Control (“OFAC”) and in connection with the USA Patriot Act in an effort to determine   if such persons appear on any lists maintained by OFAC and determining whether any potential   transaction may constitute suspicious activity.   1-10. “Education Loan” means a consumer loan made or to be made to a Borrower for the   funding of expenses in connection with such Borrower’s post-secondary education and/or   education related to professional certifications, and which is not insured or guaranteed by, or   made pursuant to a program sponsored by, a state or federal government or governmental   agency.   1-11. “Effective Date” means the date set forth in the preamble to this Agreement.   1-12. “Fees” means the amounts to be paid by Lender to Firstmark for the Services, as further   set forth in Section 2-8 hereof.   1-13. “Force Majeure" means, without limitation, the following:  acts of God, strikes, lockouts,   or other industrial disturbances; acts of public enemies; order or restraint of any kind of the   government of the United States of America or of any state or locality in which a party is doing   business or any of their departments, agencies or officials, or any civil or military authority;   insurrections; riots; landslides; earthquakes; fires; storms; droughts; floods; explosions;   breakage or accident to machinery, equipment, transmission pipes or canals; or any other cause   or event not reasonably within the control of the party.    





 







CONFIDENTIAL   FIRSTMARK SERVICES   Page 3   1-14. “Intellectual Property” means user manuals, training materials, computer programs,   routines, structures, layout, report formats, trademarks, servicemarks, copyrights, patent rights   and all oral or written information relating to a party’s business which is not generally known   to the public and which gives such party an advantage over its competitors who do not know   or use such information.   1-15. “Lender” has the meaning given to such term in the preamble to this Agreement.   1-16. “Loan Documents” means loan applications, promissory notes, credit agreements,   disclosures and notices with respect to Education Loans.  Lender acknowledges that it holds   the “Customer Relationship” (as defined in the Gramm-Leach-Bliley Act) with Borrowers and   thereby has the responsibility to provide privacy policies and notices to such Borrowers as   required therein.  Firstmark will deliver or make available Lender’s privacy notices in   connection with the Services, as directed by Lender.   1-17. “NPI” means “Nonpublic Personal Information” as such term is defined in the regulations   implementing Subtitle A of Title V of the Graham-Leach-Bliley Act, Pub. L. 106-102, codified   at 15 U.S.C. 6801 et seq., received or obtained, directly or indirectly, by Firstmark pursuant to   or in connection with of this Agreement.   1-18. “Origination Services” means all services provided by Firstmark under this Agreement in   connection with the origination and processing of applications for Education Loans.   1-19. “Person” means an individual, a partnership, a joint venture, a corporation, a trust, an   unincorporated organization, a government or any department or agency thereof or any other   entity.   1-20. “Post-Origination Services” means the services provided by Servicer with respect to the   period following Origination Services pursuant to this Agreement.   1-21. “School” means the educational institution attended or to be attended by a Borrower, using   the funds provided by an Education Loan.   1-22. “Servicing Guidelines” means the Client Program Manual or similar information attached   hereto as Schedule I-22.   1-23. “Services” means the Origination Services and the Servicing Services.   1-24. “Term” has the meaning set forth in Section III-1 below.   1-25. “Underwriting Guidelines” means the guidelines established or approved by Lender for   Education Loans, set forth in one or more manuals delivered to Firstmark, as may be updated   from time to time, which address the requirements applicable to the origination of Education   Loans.    





 







CONFIDENTIAL   FIRSTMARK SERVICES   Page 4   ARTICLE II – SERVICES PROVIDED   2-1. Forms and Documentation.   All Loan Documents to be utilized by Lender and Firstmark in connection with the Services,   shall be approved by Lender and provided to Firstmark.  Any material modification of such   forms and documentation shall likewise be approved in writing by Lender.  Firstmark shall   have no liability for inaccuracies in information furnished by a Borrower in the Loan   Documents.   2-2. Approval of Education Loan Applications.   Nothing in this Agreement shall make Firstmark a loan production office or a holder or   originator of any Education Loan, processed or serviced hereunder.  Lender acknowledges that   it has sole authority and responsibility for the decision to approve or deny applications for all   Education Loans, although Firstmark shall approve or deny such applications on behalf of   Lender in accordance with the Servicing Guidelines and Underwriting Guidelines.   2-3. Origination Services.   The parties will cooperate to deliver or direct to Firstmark applications for Education Loans   and Firstmark will perform Origination Services with respect to such applications.   Applications will be delivered or directed via paper or in such electronic format as Lender and   Firstmark agree in the Servicing Guidelines.  Upon acceptance of any Education Loan   application into Firstmark’s computer system for Origination Services, Firstmark shall have   responsibility for processing the disbursement(s) of the Education Loan pursuant to Applicable   Requirements.  Origination Services shall include the following:   a. Review of Loan Application to ensure all required information has been completed by   the Borrower.   b. Properly identifying the Borrower and processing the Borrower’s application through   the Customer Identification Program.   c. Calculation and deduction of fees as required by Servicing Guidelines prior to   disbursement, such that the disbursed amount is net of applicable deductions.   d. Preparation of disbursement of the Borrower’s Education Loan and delivery of   Education Loan funds to the Borrower or Borrower’s School, or to such other location   as Lender may designate, in each case in a single disbursement unless otherwise   provided in the Servicing Guidelines.   e. Preparation of and delivery to Borrower of all required Loan Documents, as provided   by the Servicing Guidelines. Such actions to be taken by Firstmark shall include   creation and processing of Loan Documents on forms approved by Lender, review of    





 







CONFIDENTIAL   FIRSTMARK SERVICES   Page 5   credit bureau information for potential problems, and providing disclosures and notices   in accordance with Applicable Requirements.   Upon disbursement of loan proceeds, Education Loans shall be treated hereunder as completed   Education Loans, and Firstmark shall thereupon assume responsibility for servicing and   collection of such loans as provided in this Agreement.   2-4. Post-Origination Services.   Upon completion of Origination Services, or upon acceptance of any third-party originated   Education Loan into Firstmark’s computer system, Firstmark shall service such loan in   accordance with Applicable Requirements, provided, Firstmark shall at no time have any   liability for the actions of third parties or for the origination or servicing (by a third party) of   Education Loans prior to such Education Loans being delivered to Firstmark for servicing.   Post-Origination Services shall include the following:   a. Making available to Borrowers all Loan Documents in accordance with Applicable   Requirements.   b. Acceptance of Borrower payments, including via Automated Clearinghouse processes.   Payments via U.S. Mail will be directed to a lockbox established by Firstmark.  Daily   transfer of funds to lender will include all sums applied to the Education Loans, less   any cash payment reversals (checks returned for insufficient funds and stop payment   orders).   c. Accounting for all transactions related to Education Loans, including all payments on   such Education Loans, in accordance with the Servicing Guidelines.  Interest   computation shall be completed in accordance with the Servicing Guidelines.   d. Processing of address changes and other demographic information changes provided,   Firstmark may rely on, without independently verifying, all data entries, manipulations   and representations related to Education Loans which are provided to Firstmark or the   Firstmark systems by Lender, Schools or Borrowers.   e. Responding to inquiries pertaining to Education Loans, school status or refunds,   provided, Lender shall cooperate as necessary to enable Firstmark to respond.  Inquiries   may be referred to the School if necessary.   f. Reporting to credit reporting agencies pursuant to Applicable Requirements and   assisting in credit reporting dispute process.   g. Retention of an image of all Loan Documentation, including maintaining a backup copy   of all Loan Documentation in a location distinct from the original.   h. Acting as custodian with respect to all Loan Documentation and systems records for   each Education Loan.  Firstmark may make electronic images of Loan    





 







CONFIDENTIAL   FIRSTMARK SERVICES   Page 6   PORTIONS OF THIS EXHIBIT HAVE BEEN REDACTED PURSUANT TO A REQUEST FOR   CONFIDENTIAL TREATMENT BY NELNET, INC. UNDER RULES AND REGULATIONS   PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION.  THE REDACTED   PORTIONS ARE MARKED WITH [*****] AND HAVE BEEN FILED SEPARATELY WITH   THE SECURITIES AND EXCHANGE COMMISSION ALONG WITH SUCH REQUEST FOR   CONFIDENTIAL TREATMENT.   Documentation in place of the original as permitted for collectability purposes under   state and federal law.   2-5. Service Levels; Adjustments.   a. Service Levels.  Servicer agrees to maintain certain levels of service with respect to the   key Services activities, as follows:   i. Average speed of answer: [*****] seconds   ii. Maximum call abandon rate: [*****] percent ([*****]%)   iii. Loan application processing: [*****] Business Days from receipt,   provided, delays in receiving necessary information from Borrower or School   shall not be considered in calculating processing time.   b. Fee Adjustments.  With respect to any individual Service Level identified above, if   Servicer fails to maintain such Service Level in two (2) consecutive months, Lender   may, upon written notice to Servicer, require a remediation plan.  For each consecutive   month following such notice in which Servicer fails to meet the same Service Level   without having cured the failure, Servicer will provide Lender a [*****]percent   ([*****]%) credit to the Fees for such month.   2-6. Origination or Servicing Errors.   If Firstmark commits an error in connection with the Services, which error directly results in   such Education Loan becoming unenforceable or uncollectible, Lender shall give Firstmark   written notice of the same.  Thereafter, Firstmark shall have a reasonable time to cure such   Education Loan.  If cure cannot be accomplished within twelve (12) months of the original   error, Firstmark will purchase or arrange for purchase of the Education Loan from Lender at   an amount equal to the outstanding principal balance and accrued but unpaid interest thereon.   If the Education Loan is thereafter cured within twelve (12) months after the date of purchase,   Lender shall repurchase such Education Loan from Firstmark or its designee, at a price equal   to the outstanding principal amount thereof plus accrued but unpaid interest thereon, such sum   to be payable as an additional servicing fee under this Agreement.  The foregoing shall be   Lender’s sole remedy as against Firstmark for origination or servicing errors by Firstmark.   In connection with the purchase of any Education Loan by Firstmark or its designee hereunder,   Lender will deliver to Firstmark all records in Lender’s possession and will execute and deliver   to Firstmark such other documents and instruments as Firstmark may reasonably request to   effect the transfer.  Such records shall be transferred to Firstmark free and clear of any liens,   encumbrances, claims, or interest of any person or entity claiming by, through, or under   Lender, and without representations or warranties, expressed or implied, and without recourse    





 







CONFIDENTIAL   FIRSTMARK SERVICES   Page 7   to Firstmark.  If Lender is required to repurchase the Education Loan from Firstmark or its   designee hereunder, Firstmark will deliver to Lender all records in Firstmark’s possession and   will execute and deliver to Lender such other documents and instruments as Lender may   reasonably request to effect the transfer.  Such records shall be transferred to Lender free and   clear of any liens, encumbrances, claims, or interest of any person or entity claiming by,   through, or under Firstmark, and without representations or warranties, expressed or implied,   and without recourse to Lender.   2-7. Reports to Lender.   On or about the 10th day of each month, Firstmark shall make available to Lender reports of   activity with respect to the Services during the preceding month, as designated in the Servicing   Guidelines.   2-8. Compensation for Services.   Firstmark’s compensation for services performed under this Agreement are included in and   satisfied by payment of fees by Lender to Nelnet, Inc., in accordance with that certain Master   Private Loan Program Agreement of even date herewith between Lender and Nelnet, Inc.   ARTICLE III – GENERAL PROVISIONS   3-1. Term of Agreement.   Subject to the termination provisions set forth below, the Agreement shall be effective for a   period commencing on the Effective Date, and terminating on the date on which the last   payment due is paid on the Education Loans serviced hereunder, during which the Services   shall be provided, subject to payment of the Origination and Servicing Fees and other terms of   the Agreement. The parties acknowledge and agree that it is their intent that this Agreement   shall remain in full force and effect through the “life of” each Education Loan serviced   hereunder.   3-2. Termination of Agreement.   The Agreement may be terminated as follows:   a. At the expiration of the Term.   b. Upon the refusal or failure of a party to perform any material obligation of the   Agreement, and the failure or refusal to correct or cure such performance or lack   thereof, within sixty (60) days after the party’s receipt of written notice of the failure   or refusal.   c. Upon the failure of the parties to reach agreement with respect to a change in the Fees   requested by Firstmark in the event of a change in Applicable Requirements that   materially increases costs of performance by Firstmark hereunder.    





 







CONFIDENTIAL   FIRSTMARK SERVICES   Page 8   d. At Firstmark’s option, if Lender fails to pay Firstmark the Fees within sixty (60) days   of any billing statement.   e. If an insolvency, bankruptcy or similar proceeding shall have been commenced, or a   decree or order of an appropriate court, agency or supervisory authority for the   appointment of a conservator, receiver or liquidator shall have been entered against a   party, the other party may terminate this Agreement immediately.   3-3. Termination Process.   Upon termination of this Agreement for any reason above, all Loan Documentation and   relevant servicing records will be made available to Lender in Firstmark’s standard format.   Lender will reimburse Firstmark for all expenses associated with removing such information   from Firstmark’s systems and making such information available to Lender.   3-4. Representations and Warranties.   Each of the parties represents and warrants to the other party:   a. it is duly organized, validly existing and in good standing under the laws of the state of   its organization;   b. it has all necessary power and all licenses, permits, authorizations and approvals   (governmental, corporate or otherwise) necessary to carry on its business and perform   its obligations under this Agreement; and,   c. the execution or performance of this Agreement will not violate it’s documents of   formation or governance, or any material contract or other instrument to which it is a   party or by which it is bound and will not violate any outstanding judgment, order, writ,   injunction, law, rule or regulation to which it is subject.   3-5. Limitation on Liability.   Firstmark shall have no liability with respect to:   a. the failure of any Borrower to repay an Education Loan;   b. disputes between Borrowers and Schools regarding tuition, registration, attendance or   quality of education or training;   c. Claims arising from actions or inactions of Firstmark as directed by Lender, either   pursuant to Applicable Requirements or otherwise; or   PORTIONS OF THIS EXHIBIT HAVE BEEN REDACTED PURSUANT TO A REQUEST   FOR CONFIDENTIAL TREATMENT BY NELNET, INC. UNDER RULES AND   REGULATIONS PROMULGATED BY THE SECURITIES AND EXCHANGE   COMMISSION.  THE REDACTED PORTIONS ARE MARKED WITH [*****] AND HAVE    





 







CONFIDENTIAL   FIRSTMARK SERVICES   Page 9   BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION   ALONG WITH SUCH REQUEST FOR CONFIDENTIAL TREATMENT.   d. incorrect information regarding Education Loans or Borrowers which may be provided   to Firstmark by Lender, Schools or Borrowers, including but not limited to,   School/Borrower certification, eligibility, enrollment, and School or Borrower   demographic information   Neither party shall have any liability for Claims under any theory of tort, contract, strict   liability or other legal or equitable theory for any lost profits, exemplary, punitive, special,   incidental, indirect or consequential damages, each of which is hereby excluded by agreement   of the parties regardless of whether such party has been advised of the possibility of such   damages.   3-6. Limitation on Actions.   The parties agree that any action for the breach of any provision of this Agreement shall be   commenced within twelve months following the earlier of (i) the termination of this Agreement   or (ii) the date the Education Loan with respect to which the action relates has been removed   from the Firstmark servicing system.   3-7. Audit Rights.   Upon prior written notice to Firstmark, and in coordination with Firstmark’s management,   Lender may perform or arrange to have audits performed of Firstmark’s origination and   servicing activities with respect to Education Loans owned by Lender.  All such audits will be   performed at Lender’s sole expense and during Firstmark’s normal business hours.  In   connection with such audits, Firstmark agrees to provide, annually, up to forty (40) hours of   assistance by Firstmark employees.  Any additional assistance requested by Lender will be   provided at an hourly rate of [*****] dollars ($[*****]) per hour per employee.  Such fee is   subject to change at Firstmark’s reasonable discretion but upon at least sixty (60) days’   advance written notice to Lender. Such audit rights shall extend through termination of this   Agreement and four (4) years thereafter.   3-8. Annual Compliance Audit.   On an annual basis, Servicer will cause to be completed a SSAE 16 review of its activities.   Upon request, Lender may receive a copy of the report of such review by paying a pro-rata   share of the cost of same.  Servicer’s Internal Audit Department coordinates such participation   on an annual basis and divides the aforementioned costs equally between those lenders   participating    





 







CONFIDENTIAL   FIRSTMARK SERVICES   Page 10   3-9. Disaster Recovery Plan.   Servicer agrees to maintain a disaster recovery plan designed to enable Servicer, after a   disaster, to resume Services within a reasonable timeframe.  A summary of Servicer’s plan will   be made available to Lender upon request.   3-10. Intellectual Property Protection.   All right, title and interest of whatever nature in each party’s Intellectual Property is and shall   remain the sole and exclusive property of such party, and no license or other rights thereto are   granted by this Agreement.   3-11. Confidentiality and Nondisclosure.   a. Definition.  The term “Confidential Information” means any information that either   party discloses, by any method and in any form or format, which is marked   “Confidential,” “Restricted,” “Proprietary” or with other similar marking, or which   should reasonably be considered to be Confidential Information.  By way of example   and not limitation, Confidential Information includes:  (i) any information concerning   a party’s, its agents’ or licensors’ technology, such as systems, source code, databases,   hardware, software, programs, applications, protocols, routines, models, displays and   manuals, including, without limitation, the selection, coordination, and arrangement of   the contents thereof; and (ii) any information concerning a party’s, its agents’ or   licensors’ financial or business plans or operations, such as research activities and   plans, marketing or sales plans, pricing or pricing strategies, operational techniques,   internal controls, compliance policies, methods of operation, security procedures,   strategic plans, and unpublished financial information, including information   concerning revenues, profits and profit margins.   b. Restrictions on Use.  The party providing Confidential Information in each case shall   be called the “Disclosing Party” and the party receiving the Confidential Information   shall be called the “Receiving Party.” The Receiving Party shall not use, without the   prior written consent of the Disclosing Party, any portion of the Disclosing Party’s   Confidential Information for any purpose other than in connection with the   performance of this Agreement.  Each party agrees that: (i) it will hold the Confidential   Information of the other party in the strictest confidence; (ii) it will exercise no less   care with respect to the other party’s Confidential Information than the level of care   exercised with respect to its own Confidential Information; (iii) it will not, without the   other party’s prior written consent, copy or disclose to any third party any portion   thereof; and (iv) it will promptly notify the other party of any unauthorized disclosure   or use, and will cooperate with the other property to protect all rights in and ownership   of its Confidential Information.   c. Exceptions.  The foregoing restrictions on use shall not prohibit or limit the Receiving   Party’s use, disclosure, reproduction or dissemination of the Disclosing Party’s   Confidential Information which: (a) is or becomes public domain information or    





 







CONFIDENTIAL   FIRSTMARK SERVICES   Page 11   material through no fault or breach on the part of the Receiving Party; (b) as   demonstrated by the written records of the Receiving Party, was already lawfully   known (without restriction on disclosure) to the Receiving Party prior to the   information being disclosed to the Receiving Party by the Disclosing Party or any   representative of the Disclosing Party; (c) has been or is hereafter rightfully furnished   to the Receiving Party without restriction on disclosure by a third person lawfully in   possession thereof; (d) has been independently developed, by or for the Receiving   Party, without reference to the Confidential Information of the Disclosing Party; or (e)   is required to be disclosed by court or agency order, provided that, unless prohibited by   law or order, the Receiving Party notifies the Disclosing Party so that the Disclosing   Party may have a reasonable opportunity to obtain a protective order or other form of   protection against disclosure.   d. Borrower Information.  Firstmark agrees that all information related to or contained in   documents subject to this Agreement which is NPI constitutes Confidential Information   of the Lender, and Firstmark shall keep all such NPI in strictest confidence.  NPI shall   not be released or divulged in any way without prior written consent of Lender, except   (i) to Firstmark’s officers and employees, or such other third parties as is necessary to   perform its obligations under this Agreement, (ii) as specifically required by Applicable   Law, or (iii) to such other parties as directed in writing by the Lender.  Firstmark shall   only use NPI to perform its duties under this Agreement and for other purposes specifically   directed in writing by Lender from time to time, and shall not directly or indirectly use, or   suffer, permit or cause to be used, any such NPI in any other manner or for any other   purpose whatsoever including marketing or cross-selling, or suffer, permit or cause the   marketing or cross-selling of, any products or services of any kind using NPI without   Lender’s prior written approval.  Without in any way limiting the foregoing, Firstmark’s   use, reuse, disclosure and redisclosure of NPI shall comply with Applicable Law.   e. Firstmark will maintain an information security program designed to prevent the   unauthorized disclosure, misuse, alteration or destruction of NPI.  Without limiting the   immediately preceding sentence, Firstmark agrees that such program shall be designed to   satisfy the objectives set forth in the “Interagency Guidelines Establishing Standards for   Safeguarding Borrower Information”, 66 Fed. Reg. 8616, February 1, 2001 (codified in   Appendix B to 12 C.F.R. part 30).   f. Firstmark shall promptly notify Lender in the event of a disclosure or of an unauthorized   access to Confidential Information in violation of this Agreement, and the parties shall   mutually agree upon an action plan to mitigate and resolve issues or problems arising from   such disclosure.   3-12. Independent Contractors.   Lender and Firstmark are independent contractors, and nothing in this Agreement shall be   construed to create a partnership, joint venture or agency relationship between Lender and   Firstmark.    





 







CONFIDENTIAL   FIRSTMARK SERVICES   Page 12   3-13. Notices.   All notices or communications by a party to the other party shall be delivered to the addresses   set forth in the signature section of this Agreement below, or to such other address as may be   provided from time to time by a party.  Any notice shall have been deemed to have been given   on the fifth (5th) day following the mailing of such notice when mailed by registered or   certified mail, and upon receipt in every other case.   3-14. Governing Law.   This Agreement is executed and delivered within the State of Nebraska.  The parties hereto   agree that it shall be construed, interpreted and applied in accordance with the laws of the State   of Nebraska, and that the courts and authorities within the State of Nebraska shall have sole   jurisdiction and venue over all controversies which may arise with respect to the execution of,   interpretation of and compliance with this Agreement.  EACH PARTY HERETO WAIVES,   TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO   TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO   THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.   3-15. Changes in Writing.   This Agreement, including this provision hereof, shall not be modified or changed in any   manner except by a writing signed by all parties hereto.   3-16. Severability.   If a court of competent jurisdiction finds any of the provisions of this Agreement to be so   overly broad as to be unenforceable or invalid for any other reason, it is the parties' intent that   such invalid provisions be reduced in scope or eliminated by the court, but only to the extent   deemed necessary by the court to render the remaining provisions of this Agreement reasonable   and enforceable.   3-17. Persons Bound.   This Agreement shall be binding upon and inure to the benefit of the parties hereto, their legal   representatives, heirs, successors and permitted assigns.   3-18. Assignment.   This Agreement shall not be assigned by either party without the prior written consent of the   other party, which consent shall not be unreasonably withheld, provided, Firstmark may assign   this agreement or delegate any obligation hereunder, to any Affiliate of Firstmark with   reasonable notice to Lender.    





 







CONFIDENTIAL   FIRSTMARK SERVICES   Page 13   3-19. Titles.   The titles used in this Agreement are intended for convenience and reference only.  They are   not intended and shall not be construed to be a substantive part of this Agreement or in any   other way to affect the validity, construction or effect of any of the provisions of this   Agreement.   3-20. Waiver.   The waiver or failure of either party to exercise in any respect any right provided for herein   shall not be deemed a waiver of any further right hereunder.   3-21. Force Majeure.   If by reason of a Force Majeure Firstmark is unable in whole or in part to carry out any   obligation of this Agreement, Firstmark shall not be deemed in default during the continuance   of such inability.   3-22. Corporate Obligations.   This Agreement consists of obligations of the parties as corporate or similar entities.  Any   liability arising hereunder shall be corporate liabilities.  No director, officer or employee of   either party shall be subject to any liability to any other party for any action taken, or for   refraining from taking any action in good faith, or for errors in judgment.   3-23. Hiring.   Lender agrees that during the Term or Renewal Terms of this Agreement and for one year   thereafter, it will not hire or solicit for hire, or knowingly allow its employees to hire or solicit   for hire, any employee of Firstmark without the written permission of Firstmark.   3-24. Entire Agreement.   This is the entire and exclusive statement of the Agreement between the parties, which   supersedes and merges all prior proposals, understandings and all other agreements, oral and   written, between the parties relating to the Services or any other provision of this Agreement.   3-25. Counterparts.   This Agreement may be executed in any number of counterparts.  Each counterpart so executed   shall be deemed an original, but all such counterparts shall together constitute one and the same   instrument.   [Remainder of page intentionally left blank]    





 







CONFIDENTIAL   FIRSTMARK SERVICES   Page 14   IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective   Date.   NELNET SERVICING, LLC   d/b/a Firstmark Services   UNION BANK AND TRUST COMPANY   By: /s/ WILLIAM J. MUNN By: /s/ ANGIE MUHLEISEN   Name: William J. Munn Name: Angie Muhleisen   Title: Secretary Title: President & CEO   Date: December 22, 2014 Date: December 22, 2014   Address: 121 S. 13th St., Suite 100   Lincoln, NE 68508   Address: 4243 Pioneer Woods Dr   Lincoln, NE 68506