Exhibit 10.55
EXECUTION COPY
Nelnet Education Loan Funding, Inc.
$1,030,000,000
Student Loan Asset-Backed Notes,
Series 2003-1
UNDERWRITING AGREEMENT
July 9, 0000
Xxxx xx Xxxxxxx Securities LLC
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Securitized Products Group
Ladies and Gentlemen:
Nelnet Education Loan Funding, Inc., a Nebraska corporation (the
"Company"), proposes to sell to Banc of America Securities LLC and Deutsche Bank
Securities Inc. (each an "Underwriter" and collectively, the "Underwriters"),
pursuant to the terms of this Underwriting Agreement, $1,030,000,000 aggregate
principal amount of the Company's Student Loan Asset-Backed Notes, Series 2003-1
(the "Notes") in the classes and initial principal amounts set forth on Schedule
A hereto. Xxxxx Fargo Bank Minnesota, National Association, a national banking
association, will act as eligible lender trustee on behalf of the Company (the
"Eligible Lender Trustee"). The Notes will be issued under an indenture of
trust, dated as of June 1, 2003 (the "Indenture of Trust"), among the Company,
the Eligible Lender Trustee and Xxxxx Fargo Bank Minnesota, National
Association, a national banking association, as indenture trustee (the
"Trustee"), as supplemented by a Series 2003-1 supplemental indenture of trust,
dated as of June 1, 2003 (the "Supplemental Indenture", and together with the
Indenture of Trust, the "Indenture") between the Company and the Trustee. Upon
issuance, the Notes will be secured by, among other things, Financed Eligible
Loans (as defined in the Indenture) pledged to the Trustee and described in the
Prospectus (as defined in Section 3 below). The Financed Eligible Loans will be
serviced by Nelnet, Inc., a Nevada corporation ("Nelnet") pursuant to a master
servicing agreement, dated as of June 1, 2003 (the "Servicing Agreement"),
between the Company and Nelnet, as master servicer. Nelnet has entered into a
subservicing agreement with Nelnet Loan Services, Inc. ("NLS"), dated as of June
1, 2003 (the "Subservicing Agreement"), pursuant to which NLS will act as
subservicer with respect to all of the Financed Eligible Loans.
This Agreement, an eligible loan acquisition certificate, dated as of
July 10, 2003 between the Company and the Trustee, in such capacity ("Xxxxx
Transferor") (along with the related Annex A, the "Xxxxx Loan Acquisition
Certificate"), an eligible loan acquisition certificate, dated as of July 10,
2003 between the Company and Zions First National Bank (the "Zions Transferor",
and together with the Xxxxx Transferor, the "Transferors") (along with the
related Annex A, the "Zion Loan Acquisition Certificate", and together with the
Xxxxx Loan Acquisition Certificate, the "Loan Acquisition Certificates"), an
initial auction agent agreement, dated as of June 1, 2003 (the "Initial Auction
Agent Agreement"), among the Company, the Trustee and Deutsche Bank Trust
Company Americas, as the initial auction agent (the "Auction Agent"), a
broker-dealer agreement, dated as of June 1, 2003 (the "Deutsche Broker-Dealer
Agreement"), between Deutsche Bank Securities Inc., as broker-dealer ("Deutsche
Broker-Dealer") and the Auction Agent, a broker-dealer agreement, dated as of
June 1, 2003 (the "Banc of America Broker-Dealer Agreement", and together with
the Deutsche Broker-Dealer Agreement, the "Broker-Dealer Agreements"), between
Banc of America Securities LLC, as broker-dealer ("Banc of America
Broker-Dealer", and together with the Deutsche Broker-Dealer, the
"Broker-Dealers") and the Auction Agent, an administrative services agreement,
dated as of June 1, 2003 (the "Administrative Services Agreement"), between the
Company and Nelnet, as administrator, an eligible lender trust agreement, dated
as of June 1, 2003 (the "Eligible Lender Agreement"), between Xxxxx Fargo Bank
Minnesota, National Association, as eligible lender trustee and the Company, a
custodian agreement, dated June 1, 2003 (the "Custodian Agreement"), among the
Company, the Trustee and NLS, as custodian, the partial assignment agreement,
dated as of June 1, 2003 (the "Partial Assignment Agreement"), between the
Company and the Trustee, the Servicing Agreement, the Subservicing Agreement and
the Indenture shall collectively hereinafter be referred to as the "Basic
Documents."
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Indenture or the Prospectus.
The Company, upon the terms and conditions set forth herein, proposes to
sell to the Underwriters on the Closing Dates (as hereinafter defined) the
aggregate principal amount of each Class of Notes set forth next to the name of
each Underwriter on Schedule A hereto.
The Company wishes to confirm as follows this agreement with the
Underwriters in connection with the purchase and resale of the Notes.
1. Agreements to Sell, Purchase and Resell. (a) On each Closing Date,
the Company hereby agrees, subject to all the terms and conditions set forth
herein, to sell to each of the Underwriters and, upon the basis of the
representations, warranties and agreements of the Company herein contained and
subject to all the terms and conditions set forth herein, on each Closing Date
each of the Underwriters severally and not jointly agrees to purchase from the
Company, such principal amount of each Class of the Notes to be sold on each
such Closing Date at such respective purchase prices as are set forth next to
the name of each Underwriter on Schedule A hereto.
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(b) It is understood that the Underwriters propose to
offer the Notes for sale to the public (which may include selected dealers) as
set forth in the Prospectus.
2. Delivery of the Notes and Payment Therefor. Each date on which Notes
are being delivered is referred to as a "Closing Date." The initial delivery to
the Underwriters of and payment for the Notes shall be made at the office of
Xxxxx Xxxx LLP, Denver, Colorado, at 11:00 a.m., Denver time, on July 10, 2003.
The delivery of Notes being sold on subsequent Closing Dates shall be as agreed
to from time to time between the Underwriters and the Company. The place of any
such closing and any Closing Date may be varied by agreement between the
Underwriters and the Company.
On each Closing Date, the Notes being delivered on such Closing Date
will be delivered to the Underwriters against payment of the purchase price
therefor to the Company in Federal Funds, by wire transfer to an account at a
bank acceptable to the Underwriters, or such other form of payment as to which
the parties may agree. Unless otherwise agreed to by the Company and the
Underwriters, each Class of Notes will be evidenced by a single global security
in definitive form deposited with the Trustee as custodian for DTC and/or by
additional definitive securities, and will be registered, in the case of the
global Classes of Notes, in the name of Cede & Co. as nominee of The Depository
Trust Company ("DTC"), and in the other cases, in such names and in such
denominations as the Underwriters shall request prior to 1:00 p.m., New York
City time, no later than the business day preceding such Closing Date. The Notes
to be delivered to the Underwriters shall be made available to the Underwriters
in Denver, Colorado, for inspection and packaging not later than 9:30 a.m.,
Denver time, on the business day immediately preceding such Closing Date.
3. Representations and Warranties of the Company. The Company represents
and warrants to each of the Underwriters that:
(a) A registration statement on Form S-3 (No. 333-104736),
including a prospectus and such amendments thereto as may have been
required to the date hereof, relating to the Notes and the offering
thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Act"), has been filed with the
Securities and Exchange Commission (the "SEC" or the "Commission") and
such registration statement, as amended, has become effective; such
registration statement, as amended, and the prospectus relating to the
sale of the Notes offered thereby constituting a part thereof, as from
time to time amended or supplemented (including the base prospectus, any
prospectus supplement filed with the Commission pursuant to Rule 424(b)
under the Act, the information deemed to be a part thereof pursuant to
Rule 430A(b) under the Act, and the information incorporated by
reference therein) are respectively referred to herein as the
"Registration Statement" and the "Prospectus" respectively; and the
conditions to the use of a registration statement on Form S-3 under the
Act, as set forth in the General Instructions to Form S-3, and the
conditions of Rule 415 under the Act, have been satisfied with respect
to the Registration Statement;
(b) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all respects to
the requirements of the Act, the rules and regulations of the SEC (the
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"Rules and Regulations") and the Trust Indenture Act of 1939, as
amended, and the rules and regulations thereunder (the "Trust Indenture
Act"), and, except with respect to information omitted pursuant to Rule
430A of the Act, did not include any untrue statement of a material fact
or, in the case of the Registration Statement, omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and, in the case of the Prospectus,
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and on the date of this Agreement and on each Closing
Date, the Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act, the Rules and Regulations and
the Trust Indenture Act, and neither of such documents included or will
include as of each Closing Date any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that the foregoing does not apply to statements in or omissions
from the Registration Statement or the Prospectus based upon written
information furnished to the Company by the Underwriters, specifically
for use therein.
(c) The Commission has not issued and, to the best knowledge of
the Company, is not threatening to issue any order preventing or
suspending the use of the Registration Statement.
(d) As of the initial Closing Date, each consent, approval,
authorization or order of, or filing with, any court or governmental
agency or body which is required to be obtained or made by the Company
or its affiliates for the consummation of the transactions contemplated
by this Agreement shall have been obtained, except as otherwise provided
in the Basic Documents.
(e) The Indenture has been duly and validly authorized by the
Company and, upon its execution and delivery by the Company and assuming
due authorization, execution and delivery by the Trustee, will be a
valid and binding agreement of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally and conform in all material respects to the description
thereof in the Prospectus. The Indenture has been duly qualified under
the Trust Indenture Act with respect to the Notes.
(f) The Notes have been duly authorized by the Company and the
Notes to be issued on each Closing Date, when executed by the Company
and authenticated by the Trustee in accordance with the Indenture, and
delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will have been validly issued and delivered, and
will constitute valid and binding obligations of the Company entitled to
the benefits of the Indenture and enforceable in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance or other similar laws
relating to or affecting creditors' rights generally and court decisions
with respect thereto, and the Notes will conform in all material
respects to the description thereof in the Prospectus.
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(g) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nebraska
with full power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus Supplement
and as conducted on the date hereof, and is duly registered and
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct
of its business requires such registration or qualification, except
where the failure so to register or qualify does not have a material
adverse effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the
Company.
(h) Other than as contemplated by this Agreement or as disclosed
in the Prospectus, there is no broker, finder or other party that is
entitled to receive from the Company or any of its affiliates any
brokerage or finder's fee or other fee or commission as a result of any
of the transactions contemplated by this Agreement.
(i) There are no legal or governmental proceedings pending or
threatened or, to the knowledge of the Company contemplated, against the
Company, or to which the Company or any of its properties is subject,
that are not disclosed in the Prospectus and which, if adversely
decided, would individually or in the aggregate have a material adverse
effect on the condition (financial or other), business, properties or
results of operations of the Company, or would materially and adversely
affect the ability of the Company to perform its obligations under this
Agreement and the other Basic Documents or otherwise materially affect
the issuance of the Notes or the consummation of the transactions
contemplated hereby or by the Basic Documents.
(j) Neither the offer, sale or delivery of the Notes by the
Company nor the execution, delivery or performance of this Agreement or
the Basic Documents by the Company, nor the consummation by the Company
of the transactions contemplated hereby or thereby (i) requires or will
require any consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official (except for
compliance with the securities or Blue Sky laws of various
jurisdictions, the qualification of the Indenture under the Trust
Indenture Act and such other consents, approvals or authorizations as
shall have been obtained prior to the initial Closing Date) or conflicts
or will conflict with or constitutes or will constitute a breach of, or
a default under, the organizational documents of the Company or (ii)
conflicts or will conflict with or constitutes or will constitute a
breach of, or a default under, in any material respect, any agreement,
indenture, lease or other instrument to which the Company is a party or
by which the Company or any of its respective properties may be bound,
or violates or will violate in any material respect any statute, law,
regulation or filing or judgment, injunction, order or decree applicable
to the Company or any of its respective properties, or will result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to the terms of any agreement
or instrument to which it is a party or by which it may be bound or to
which any of its properties is subject other than as contemplated by the
Basic Documents.
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(k) The Company has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement and
the other Basic Documents to which it is a party; the execution and
delivery of, and the performance by the Company of its obligations,
under this Agreement and the other Basic Documents to which it is a
party have been duly and validly authorized by the Company and this
Agreement and the other Basic Documents have been duly executed and
delivered by the Company and constitute the valid and legally binding
agreements of the Company, enforceable against the Company in accordance
with their respective terms, except as the enforcement hereof and
thereof may be limited by bankruptcy, insolvency, moratorium, fraudulent
conveyance or other similar laws relating to or affecting creditors'
rights generally and court decisions with respect thereto and subject to
the applicability of general principles of equity, and except as rights
to indemnity and contribution hereunder and thereunder may be limited by
Federal or state securities laws or principles of public policy.
(l) The Company's assignment of the Financed Eligible Loans to
the Trustee pursuant to the Indenture will vest in the Trustee, for the
benefit of the Noteholders, a first priority perfected security interest
therein, subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance.
(m) The Company is not, nor as a result of the issuance and sale
of the Notes as contemplated hereunder will it become, subject to
registration as an "investment company" under the Investment Company Act
of 1940, as amended.
(n) The representations and warranties made by the Company in
any Basic Document to which the Company is a party and made in any
Officer's Certificate of the Company will be true and correct at the
time made and on and as of each applicable Closing Date.
(o) Since the date of the Prospectus, no material adverse change
or any development involving a prospective material adverse change in,
or affecting particularly the business or properties of, the Company has
occurred.
4. Agreements of the Company. The Company agrees with each of the
Underwriters as follows:
(a) The Company will prepare a supplement to the Prospectus
setting forth the amount of the Notes covered thereby and the terms
thereof not otherwise specified in the Prospectus, the price at which
the Notes are to be purchased by the Underwriters, either the initial
public offering price or the method by which the price at which the
Notes are to be sold will be determined, the selling concessions and
reallowances, if any, and such other information as the Underwriters and
the Company deem appropriate in connection with the offering of the
Notes, and the Company will timely file such supplement to the
prospectus with the SEC pursuant to Rule 424(b) under the Act, but the
Company will not file any amendments to the Registration Statement as in
effect with respect to the Notes or any amendments or supplements to the
Prospectus, unless it shall first have delivered copies of such
amendments or supplements to the Underwriters, with reasonable
opportunity to comment on such proposed amendment or supplement or if
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the Underwriters shall have reasonably objected thereto promptly after
receipt thereof; the Company will immediately advise the Underwriters or
the Underwriters' counsel (i) when notice is received from the SEC that
any post-effective amendment to the Registration Statement has become or
will become effective and (ii) of any order or communication suspending
or preventing, or threatening to suspend or prevent, the offer and sale
of the Notes or of any proceedings or examinations that may lead to such
an order or communication, whether by or of the SEC or any authority
administering any state securities or Blue Sky law, as soon as the
Company is advised thereof, and will use its best efforts to prevent the
issuance of any such order or communication and to obtain as soon as
possible its lifting, if issued.
(b) If, at any time when the Prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply
with the Act or the Rules and Regulations, the Company promptly will
notify each of the Underwriters of such event and will promptly prepare
and file with the SEC, at its own expense, an amendment or supplement to
such Prospectus that will correct such statement or omission or an
amendment that will effect such compliance. Neither the Underwriters'
consent to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth
in Section 6 hereof.
(c) The Company will immediately inform the Underwriters (i) of
the receipt by the Company of any communication from the SEC or any
state securities authority concerning the offering or sale of the Notes
and (ii) of the commencement of any lawsuit or proceeding to which the
Company is a party relating to the offering or sale of the Notes.
(d) The Company will furnish to the Underwriters, without
charge, copies of the Registration Statement (including all documents
and exhibits thereto or incorporated by reference therein), the
Prospectus, and all amendments and supplements to such documents
relating to the Notes, in each case in such quantities as the
Underwriters may reasonably request.
(e) No amendment or supplement will be made to the Registration
Statement or Prospectus which the Underwriters shall not previously have
been advised or to which it shall reasonably object after being so
advised.
(f) The Company will cooperate with the Underwriters and with
their counsel in connection with the qualification of, or procurement of
exemptions with respect to, the Notes for offering and sale by the
Underwriters and by dealers under the securities or Blue Sky laws of
such jurisdictions as the Underwriters may designate and will file such
consents to service of process or other documents necessary or
appropriate in order to effect such qualification or exemptions;
provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to
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take any action which would subject it to service of process in suits,
other than those arising out of the offering or sale of the Notes, in
any jurisdiction where it is not now so subject.
(g) The Company consents to the use, in accordance with the
securities or Blue Sky laws of such jurisdictions in which the Notes are
offered by the Underwriters and by dealers, of the Prospectus furnished
by the Company.
(h) To the extent, if any, that the rating or ratings provided
with respect to the Notes by the rating agency or agencies that
initially rate the Notes is conditional upon the furnishing of documents
or the taking of any other actions by the Company, the Company shall
cause to be furnished such documents and such other actions to be taken.
(i) So long as any of the Notes are outstanding, the Company
will furnish to the Underwriters (i) as soon as available, a copy of
each document relating to the Notes required to be filed with the SEC
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any order of the SEC thereunder, and (ii) such other
information concerning the Company as the Underwriters may request from
time to time.
(j) If this Agreement shall terminate or shall be terminated
after execution and delivery pursuant to any provisions hereof
(otherwise than by notice given by the Underwriters terminating this
Agreement pursuant to Section 8 or Section 9 hereof) or if this
Agreement shall be terminated by the Underwriters because of any failure
or refusal on the part of the Company to comply with the terms or
fulfill any of the conditions of this Agreement, the Company agrees to
reimburse the Underwriters for all out-of-pocket expenses (including
fees and expenses of their counsel) reasonably incurred by it in
connection herewith, but without any further obligation on the part of
the Company for loss of profits or otherwise.
(k) The net proceeds from the sale of the Notes hereunder will
be applied substantially in accordance with the description set forth in
the Prospectus.
(l) Except as stated in this Agreement and in the Prospectus,
the Company has not taken, nor will it take, directly or indirectly, any
action designed to or that might reasonably be expected to cause or
result in stabilization or manipulation of the price of the Notes to
facilitate the sale or resale of the Notes.
(m) For a period from the date of this Agreement until the
retirement of the Notes, the Company will deliver to you the annual
statements of compliance and the annual independent certified public
accountants' reports furnished to the Trustee or the Company pursuant to
the Servicing Agreement as soon as such statements and reports are
furnished to the Trustee or the Company.
(n) On or before each date that Financed Eligible Loans are
pledged under the Indenture, the Company shall xxxx its records relating
to the Financed Eligible Loans and shall cause the Servicer and NLS to
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xxxx their respective computer records relating to the Financed Eligible
Loans to show the pledge of such Financed Eligible Loans by the Company
to the Trustee, and the Company shall not take, or permit any other
person to take, any action inconsistent with the security interest of
the Trustee in the Financed Eligible Loans, other than as permitted by
the Basic Documents.
(o) For the period beginning on the date of this Agreement and
ending 90 days after the final Closing Date, none of the Company and any
entity affiliated, directly or indirectly, with the Company will,
without prior written notice to the Underwriters, offer to sell or sell
notes (other than the Notes) collateralized by FFELP Loans other than
pursuant to the Nelnet Student Loan Trust 2003-2 transaction; provided,
however, that this shall not be construed to prevent the sale of FFELP
Loans by the Company.
(p) If, at the time the Registration Statement became effective,
any information shall have been omitted therefrom in reliance upon Rule
430A under the 1933 Act, then, immediately following the execution of
this Agreement, the Company will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A and Rule
424(b) under the 1933 Act, copies of an amended Prospectus containing
all information so omitted.
(q) As soon as practicable, but not later than 16 months after
the date of this Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least
12 months beginning after the later of (i) the effective date of the
Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of this Agreement and (iii) the date of the
Company's most recent Annual Report or Form 10-K filed with the
Commission prior to the date of this Agreement, which will satisfy the
provisions of Section 11(a) of the Act.
5. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each of the Underwriters and each person, if any, who controls
an Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and expenses (or actions in respect thereof) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus, or in any amendment or supplement
thereto, or any preliminary prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability, or action as such expenses are incurred,
except insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with the information relating to an Underwriter
furnished in writing to the Company by such Underwriter expressly for use
therein, it being understood that the only such information furnished by any
Underwriter consists of the information described as such in Section 10 of this
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Agreement; provided, however, that the indemnification contained in this
paragraph (a) with respect to any preliminary prospectus shall not inure to the
benefit of an Underwriter (or to the benefit of any person controlling an
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Notes by an Underwriter to any person if the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in such preliminary prospectus was corrected in the
final Prospectus and such Underwriter sold Notes to that person without sending
or giving at or prior to the written confirmation of such sale, a copy of the
final Prospectus (as then amended or supplemented but excluding documents
incorporated by reference therein) if the Company has previously furnished
sufficient copies thereof to such Underwriter at a time reasonably prior to the
date such Notes are sold to such person. The foregoing indemnity agreement shall
be in addition to any liability that the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against
an Underwriter or any person controlling an Underwriter in respect of
which indemnity may be sought against the Company, such Underwriter or
such controlling person shall promptly notify the parties against whom
indemnification is being sought (the "indemnifying parties"), but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party under Sections
5(a) and 5(c) hereof, except to the extent that the indemnifying party
is materially prejudiced by such omission, and in no event shall the
omission so to notify relieve the Company from any liability which it
may otherwise have. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party). The applicable Underwriter or any such controlling
person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of
such Underwriter or such controlling person unless (i) the indemnifying
parties have agreed in writing to pay such fees and expenses, (ii) the
indemnifying parties have failed to assume the defense and employ
counsel, or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both the
Underwriter or such controlling person and the indemnifying parties and
the Underwriter or such controlling person shall have been advised by
its counsel that there may be one or more legal defenses available to it
which are different from or additional to or in conflict with those
available to the indemnifying parties and in the reasonable judgment of
such counsel it is advisable for the Underwriter or such controlling
person to employ separate counsel (in which case the indemnifying party
shall not have the right to assume the defense of such action, suit or
proceeding on behalf of the Underwriter or such controlling person). It
is understood, however, that the indemnifying parties shall, in
connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only
one separate firm of attorneys (in addition to any local counsel) at any
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time for each Underwriter and controlling persons not having actual or
potential differing interests with such Underwriter or among themselves,
which firm shall be designated in writing by such Underwriter, and that
all such fees and expenses shall be reimbursed on a monthly basis as
provided in paragraph (a) hereof. An indemnifying party will not,
without the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii)
does not include a statement as to, or an admission of fault,
culpability or a failure to act by or on behalf of an indemnified party.
(c) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company and its directors and officers,
and any person who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, to the same extent as the
indemnity from the Company to the Underwriters set forth in paragraph
(a) hereof, but only with respect to information relating to such
Underwriter furnished in writing by such Underwriter expressly for use
in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus therein, it
being understood that the only such information furnished by any
Underwriter consists of the information described as such in Section 10
of this Agreement. If any action, suit or proceeding shall be brought
against the Company, any of its directors or officers, or any such
controlling person based on the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary
prospectus and in respect of which indemnity may be sought against an
Underwriter pursuant to this paragraph (c), such Underwriter shall have
the rights and duties given to the Company by paragraph (b) above
(except that if the Company shall have assumed the defense thereof the
Underwriter shall have the option to assume such defense but shall not
be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such
counsel shall be at such Underwriter's expense), and the Company, its
directors and officers, and any such controlling person shall have the
rights and duties given to the Underwriters by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability
which the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof
in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then an indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the applicable Underwriter on the other hand from the offering of
the Notes, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
11
but also the relative fault of the Company on the one hand and the
applicable Underwriter on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and an
Underwriter on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Notes (before deducting
expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriter. The relative
fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or by an Underwriter
on the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 5 were
determined by a pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in paragraph (d) above. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities and
expenses referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 5, no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total underwriting discounts and commissions
received by such Underwriter with respect to the Notes underwritten by
such Underwriter exceed the sum of the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission and the
amount of any damages such Underwriter has been required to pay under
the Indemnity Agreement dated as of the date hereof between the
Underwriters and Nelnet Loan Services, Inc. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this paragraph (e) to contribute are several in
proportion to their respective underwriting obligations.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or
contribution under this Section 5 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section 5 and the representations and
warranties of the Company and the Underwriters set forth in this
Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of the
Underwriters, the Company or any person controlling any of them or their
respective directors or officers, (ii) acceptance of any Notes and
payment therefor hereunder, and (iii) any termination of this Agreement.
A successor to the Underwriters, the Company or any person controlling
any of them or their respective directors or officers, shall be entitled
to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 5.
12
6. Conditions of the Underwriters' Obligations. (A) The obligations of
the Underwriters to purchase the Notes hereunder on the initial Closing Date are
subject to the following conditions precedent:
(a) All actions required to be taken and all filings required to
be made by the Company under the Act prior to the initial sale of the
Notes shall have been duly taken or made. At and prior to the initial
Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the
Company or the Underwriters, shall be contemplated by the Commission.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in or affecting the condition (financial
or other), business, properties, net worth, or results of operations of
the Company, the Servicer or NLS not contemplated by the Registration
Statement, which in the opinion of the Underwriters, would materially
adversely affect the market for the Notes, (ii) any downgrading in the
rating of any debt securities of trusts sponsored by the Company, the
Servicer or NLS by any nationally recognized statistical rating
organization or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of trusts
sponsored by the Company, the Servicer or NLS (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating), or (iii) any
event or development which makes any statement made in the Registration
Statement or Prospectus untrue or which, in the opinion of the Company
and its counsel or the Underwriters and their counsel, requires the
filing of any amendment to or change in the Registration Statement or
Prospectus in order to state a material fact required by any law to be
stated therein or necessary in order to make the statements therein not
misleading, if amending or supplementing the Registration Statement or
Prospectus to reflect such event or development would, in the opinion of
the Underwriters, materially adversely affect the market for the Notes.
(c) You shall have received an opinion addressed to you of Xxxxx
Xxxx LLP, in its capacity as counsel to the Company, dated the initial
Closing Date, in form and substance satisfactory to you and your counsel
with respect to the Indenture, Custodian Agreement, this Agreement, the
Servicing Agreement, the Auction Agent Agreement and the Administrative
Services Agreement and to the validity of the Notes and such related
matters as you shall reasonably request. In addition, you shall have
received an opinion addressed to you of Xxxxx Xxxx LLP, in its capacity
as counsel for the Company, in form and substance satisfactory to you
and your counsel, concerning "true sale," "non- consolidation" and
"first perfected security interest" and certain other issues with
respect to the transfer of the Financed Eligible Loans from the
Transferors to the Trustee.
13
(d) You shall have received an opinion addressed to you of Xxxxx
Xxxx LLP, in its capacity as counsel for the Company, dated the initial
Closing Date, in form and substance satisfactory to you and your counsel
to the effect that the statements in the Prospectus under the headings
"Federal Income Tax Consequences" and "ERISA Considerations", to the
extent that they constitute statements of matters of law or legal
conclusions with respect thereto, have been prepared or reviewed by such
counsel and are correct in all material respects.
(e) You shall have received an opinion addressed to you of Xxxxx
Xxxx LLP, in its capacity as counsel for the Company, dated the initial
Closing Date, in form and substance satisfactory to you and your counsel
with respect to the character of the Notes for federal tax purposes.
(f) You shall have received an opinion addressed to you of
Stroock & Stroock & Xxxxx LLP, in its capacity as Underwriters' Counsel,
dated the initial Closing Date, in form and substance satisfactory to
you.
(g) You shall have received an opinion addressed to you of
Ballard, Spahr, Xxxxxxx & Ingersoll, LLP, in its capacity as counsel for
the Company, dated the initial Closing Date in form and substance
satisfactory to you and your counsel with respect to the Prospectus and
the Registration Statement and certain matters arising under the Trust
Indenture Act of 1939, as amended, and the Investment Company Act of
1940, as amended.
(h) You shall have received opinions addressed to you of Perry,
Guthery, Xxxxx & Xxxxxxxx, P.C. in its capacity as counsel to Nelnet, as
servicer and administrator, NLS and the Company, each dated the initial
Closing Date and satisfactory in form and substance to you and your
counsel, to the effect that:
(i) Each of Nelnet, NLS and the Company is a
corporation, in good standing under the laws of their respective
states of incorporation; each having the full power and
authority (corporate and other) to own its properties and
conduct its business, as presently conducted by it, and to enter
into and perform its obligations under each of the Basic
Documents to which it is a party.
(ii) The Servicing Agreement, the Partial Assignment
Agreement, the Loan Acquisition Certificates, the Administrative
Services Agreement, the Indenture, the Initial Auction
Agreement, the Custodian Agreement, the Eligible Lender
Agreement and this Agreement have been duly authorized, executed
and delivered by the Company, the Administrative Services
Agreement, the Servicing Agreement and the Subservicing
Agreement have been duly authorized, executed and delivered by
Nelnet and the Subservicing Agreement and the Custodian
Agreement have been duly authorized, executed and delivered by
NLS and each such agreement is the legal, valid and binding
obligation of the Company, Nelnet and NLS, as the case may be,
enforceable against the Company, Nelnet and NLS, as the case may
be, in accordance with their respective terms, except (x) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
14
hereafter in effect relating to creditors' rights and (y) remedy
of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may
be brought.
(iii) Neither the execution and delivery by Nelnet of
the Administrative Services Agreement, the Servicing Agreement
or the Subservicing Agreement, or the execution and delivery by
the Company of the Servicing Agreement, the Loan Acquisition
Certificates, the Partial Assignment Agreement, the
Administrative Services Agreement, the Indenture, the Initial
Auction Agreement, the Custodian Agreement, the Eligible Lender
Agreement or this Agreement, or the execution and delivery by
NLS of the Subservicing Agreement or the Custodian Agreement,
nor the consummation by Nelnet, the Company or NLS of the
transactions contemplated therein nor the fulfillment of the
terms thereof by Nelnet, the Company or NLS will conflict with,
result in a breach, violation or acceleration of, or constitute
a default under, any term or provision of the by-laws, of
Nelnet, the Company or NLS or of any indenture or other
agreement or instrument to which Nelnet, the Company or NLS is a
party or by which Nelnet, the Company or NLS is bound, or result
in a violation of or contravene the terms of any statute, order
or regulation applicable to Nelnet, the Company or NLS of any
court, regulatory body, administrative agency or governmental
body having jurisdiction over Nelnet, the Company or NLS.
(iv) There are no actions, proceedings or investigations
pending or, to the best of such counsel's knowledge after due
inquiry and reasonable investigation, threatened against Nelnet,
the Company or NLS before or by any governmental authority that
might materially and adversely affect the performance by Nelnet,
the Company or NLS of its obligations under, or the validity or
enforceability of, any Basic Documents to which it is a party.
(v) Nothing has come to such counsel's attention that
would lead such counsel to believe that the representations and
warranties of Nelnet contained in the Administrative Services
Agreement, the Servicing Agreement or the Subservicing Agreement
or the representations and warranties of the Company contained
in the Loan Acquisition Certificates, the Partial Assignment
Agreement, the Servicing Agreement, the Administrative Services
Agreement, the Indenture, the Initial Auction Agreement, the
Custodian Agreement, the Eligible Lender Agreement or this
Agreement, or the representations and warranties of NLS
contained in the Subservicing Agreement or the Custodian
Agreement are other than as stated therein.
(vi) No authorization, approval, or other action by, and
no notice to or filing with, any governmental authority or
regulatory body is required (a) for the due execution, delivery
and performance by Nelnet of the Administrative Services
Agreement, the Servicing Agreement or the Subservicing
Agreement, (b) for the due execution, delivery and performance
by the Company of the Loan Acquisition Certificates, the Partial
Assignment Agreement, the Servicing Agreement, the
15
Administrative Services Agreement, the Indenture, the Initial
Auction Agreement, the Custodian Agreement, the Eligible Lender
Agreement or this Agreement, (c) for the due execution, delivery
and performance by NLS of the Subservicing Agreement or the
Custodian Agreement or (d) for the perfection of the Trustee's
interest in the Financed Eligible Loans pledged under the
Indenture or the exercise by the Trustee of its rights and
remedies under the Indenture, including specifically the filings
of any Uniform Commercial Code financing statements, except for
the execution and delivery of the Guarantee ------ Agreements.
(vii) As of the date specified in a schedule to such
opinion, there were no (a) UCC financing statements naming a
Transferor as debtor or seller and covering any Student Loans to
be transferred under the Loan Acquisition Certificates or any
interest therein or (b) notices of the filing of any federal tax
lien (filed pursuant to Section 6323 of the Internal Revenue
Code) or lien of the Pension Benefit Guaranty Corporation (filed
pursuant to Section 4068 of ERISA) covering any Student Loan to
be transferred under the Loan Acquisition Certificates or any
interest therein, listed in the available records in the
respective offices set forth in such schedule opposite each such
date (which are all of the offices that are prescribed under
either the internal law of the conflict of law rules of the
Nebraska UCC as the offices in which filings should be made to
perfect security interests in Student Loans), except as set
forth in such schedule.
(viii) As of the date of such opinion and assuming that
the Trustee is an eligible lender as that term is defined in 20
U.S.C. ss.1085(d)(1) of the Higher Education Act of 1965, as
amended, the Trustee on behalf of the Company will be entitled
to the benefit of the applicable Guarantor and/or Department of
Education payments under the Act related to the Student Loans
transferred under the Loan Acquisition Certificates, subject to
the terms and conditions of the Guarantee Agreements and the
Act.
(i) You shall have received an opinion addressed to Nelnet, that
can be relied upon by Nelnet's affiliates and the Underwriters, acting
in their capacity as underwriters for the Company, of Xxxx Xxxxxx, in
its capacity as special counsel to the Company, with respect to certain
matters arising under the Higher Education Act relating to Special
Allowance Payments, in form and substance satisfactory to you and your
counsel.
(j) You shall have received an opinion addressed to you of
counsel to the Trustee, dated the initial Closing Date and in form and
substance satisfactory to you and your counsel.
(k) You shall have received certificates addressed to you dated
the initial Closing Date of any two of the Chairman of the Board, the
President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the principal
financial officer or the principal accounting officer of the Company and
the Servicer in which such officers shall state that, to the best of
their knowledge after reasonable investigation, (i) the representations
and warranties of the Company or the Servicer, as the case may be,
16
contained in the respective Basic Documents to which it is a party, are
true and correct in all material respects, that each of the Company and
the Servicer has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such
agreements at or prior to the initial Closing Date, (ii) that the
Servicer has reviewed the information pertaining to it in the
Prospectus, and the Company has reviewed the Prospectus, and as
applicable, the information therein is fair and accurate in all material
respects, and (iii) since the date set forth in such certificate, except
as may be disclosed in the Prospectus, no material adverse change or any
development involving a prospective material adverse change, in or
affecting particularly the business or properties of the Company or the
Servicer, as applicable, has occurred.
(l) You shall have received certificates addressed to you dated
the initial Closing Date of any one of the Chairman of the Board, the
President, any Executive Vice President, Chief Financial Officer, Senior
Vice President or Vice President, the Treasurer, any Assistant
Treasurer, the principal financial officer or the principal accounting
officer of NLS in which such officers shall state that, to the best of
their knowledge after reasonable investigation, (i) the representations
and warranties of NLS contained in the Subservicing Agreement are true
and correct in all material respects and that NLS has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied under such agreement at or prior to the initial Closing Date,
(ii) that they have reviewed the Prospectus and that the information
therein regarding NLS is fair and accurate in all material respects, and
(iii) since the date set forth in such certificate, except as may be
disclosed in the Prospectus, no material adverse change or any
development involving a prospective material adverse change in, or
affecting particularly the business or properties of, NLS has occurred.
(m) You shall have received evidence satisfactory to you that,
on or before the initial Closing Date, UCC-1 financing statements have
been or are being filed in the office of the Secretary of State of the
State of Nebraska reflecting the grant of the security interest by the
Company in the Financed Eligible Loans and the proceeds thereof to the
Trustee.
(n) You shall have received a certificate addressed to you dated
the initial Closing Date from a responsible officer acceptable to you of
the Trustee in form and substance satisfactory to you and your counsel
and to which shall be attached each Guarantee Agreement.
(o) The Underwriters shall have received on the initial Closing
Date from KPMG Peat Marwick a letter dated the initial Closing Date, and
in form and substance satisfactory to the Underwriters, to the effect
that they have carried out certain specified procedures, not
constituting an audit, with respect to certain information regarding the
Financed Eligible Loans and setting forth the results of such specified
procedures.
17
(p) All the representations and warranties of the Company
contained in this Agreement and the Basic Documents shall be true and
correct in all material respects on and as of the date hereof and on and
as of each Closing Date as if made on and as of each Closing Date and
the Underwriters shall have received a certificate, dated the initial
Closing Date and signed by an executive officer of the Company to the
effect set forth in this Section 6(p) and in Section 6(q) hereof.
(q) The Company shall not have failed at or prior to the initial
Closing Date to have performed or complied with any of its agreements
herein contained and required to be performed or complied with by it
hereunder at or prior to the initial Closing Date.
(r) The Underwriters shall have received by instrument dated the
initial Closing Date (at the option of the Underwriters), in lieu of or
in addition to the legal opinions referred to in this Section 6, the
right to rely on opinions provided by such counsel and all other counsel
under the terms of the Basic Documents.
(s) Each class of Class A Notes shall be rated "AAA", "AAA" and
"Aaa", respectively, by Fitch, Inc. ("Fitch"), Standard & Poor's Ratings
Service, a division of The XxXxxx-Xxxx Companies ("S&P"), and Xxxxx'x
Investors Services, Inc. ("Moody's"), the Class B Notes shall be rated
"AA", "AA-" and "Aa", or higher, by Fitch, S&P and Moody's,
respectively, and that neither Fitch, S&P nor Moody's have placed the
Notes under surveillance or review with possible negative implications.
(t) You shall have received evidence satisfactory to you of the
completion of all actions necessary to effect the transfer of the
Financed Eligible Loans as described in the Prospectus and the
recordation thereof on the Company's and NLS's computer systems.
(u) You shall have received certificates addressed to you dated
the initial Closing Date from officers of the Company and legal opinions
addressing such additional matters as you may reasonably request in form
and substance satisfactory to you and your counsel.
(v) You shall have received a signed Indemnity Agreement from
Nelnet Loan Services, Inc. in form and substance satisfactory to you and
your counsel.
(w) You shall have received certificates addressed to you dated
the initial Closing Date of NSLP and OSFA to the effect that (i) the
information in the Prospectus with respect to such entity is true and
correct and is fair and accurate in all material respects and (ii) that
since the date of the Prospectus, no material adverse change in or
affecting the business or properties of such entity has occurred.
(x) You shall have received such other opinions, certificates
and documents as are required under the Indenture as a condition to the
issuance of the Notes.
18
(B) The obligation of the Underwriters to purchase the Notes
being sold on each Closing Date after the initial Closing Date shall be subject
to the following additional conditions.
(a) Subsequent to the immediately preceding Closing Date,
there shall not have occurred (i) any change, or any development or
event involving a prospective change, in or affecting the condition
(financial or other), business, properties, net worth, or results of
operations of the Company, the Servicer or the Subservicer not
contemplated by the Prospectus, which in the opinion of the
Underwriters, would materially adversely affect the market for the
Notes, (ii) any downgrading in the rating of any debt securities of the
Company, the Servicer or the Subservicer by any nationally recognized
statistical rating organization or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company, the Servicer or the Subservicer (other than
an announcement with positive implications of a possible upgrading, and
no implication of a possible downgrading, of such rating), or (iii) any
event or development which makes any statement made in the Prospectus
untrue or which, in the opinion of the Company and its counsel or the
Underwriters and their counsel, requires the filing of any amendment to
or change in the Prospectus in order to state a material fact required
by any law to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which made, not
misleading, if amending or supplementing the Prospectus to reflect such
event or development would, in the opinion of the Underwriters,
materially adversely affect the market for the Notes.
(b) You shall have received opinions (which may be in the
form of "bring-down" opinions) substantially to the effect of the legal
opinions delivered on the initial Closing Date pursuant to Section
6(A)(c), (d), (e), (g), (h), (i) and (j).
(c) You shall have received certificates addressed to you
dated the applicable Closing Date of officials of the Company, in which
such officers shall state that, to the best of their knowledge after
reasonable investigation, (i) the representations and warranties of the
Company contained in the respective Basic Documents to which the Company
is a party are true and correct in all material respects and that the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied under such agreements at or prior
to such Closing Date, (ii) that they have reviewed the Prospectus and
that the information therein is fair and accurate in all material
respects and (iii) since the date set forth in such certificate, except
as may be disclosed in the Prospectus, no material adverse change or any
development involving a prospective material adverse change, in or
affecting particularly the business or properties of the Company has
occurred.
(d) You shall have received certificates addressed to you
dated the applicable Closing Date of officials of NLS in which such
officers shall state that, to the best of their knowledge after
reasonable investigation, (i) the representations and warranties of NLS
contained in the Subservicing Agreement are true and correct in all
material respects, and that NLS has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied under
such agreements at or prior to such Closing Date, (ii) that they have
19
reviewed the Prospectus and that the information therein regarding NLS
is fair and accurate in all material respects, and (iii) since the date
set forth in such certificate, except as may be disclosed in the
Prospectus, no material adverse change or any development involving a
prospective material adverse change, in or affecting particularly the
business or properties of NLS, has occurred.
(e) You shall have received certificates addressed to you
dated the applicable Closing Date of officials of the Servicer in which
such officers shall state that, to the best of their knowledge after
reasonable investigation, (i) the representations and warranties of the
Servicer contained in the Basic Documents to which the Servicer is a
party are true and correct in all material respects, and that the
Servicer has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied under such agreements at or
prior to such Closing Date, (ii) that they have reviewed the Prospectus
and that the information therein regarding the Servicer is fair and
accurate in all material respects, and (iii) since the date set forth in
such certificate, except as may be disclosed in the Prospectus, no
material adverse change or any development involving a prospective
material adverse change, in or affecting particularly the business or
properties of the Servicer, has occurred.
(f) You shall have received certificates addressed to you
dated the applicable Closing Date of NSLP and OSFA to the effect that
(i) the information in the Prospectus with respect to such entity is
true and correct and is fair and accurate in all material respects and
(ii) that since the date of the Prospectus, no material adverse change
in or affecting the business or properties of such entity has occurred.
(g) You shall have received a certificate addressed to you
dated the applicable Closing Date from a responsible officer acceptable
to you of the Eligible Lender Trustee in form and substance satisfactory
to you and your counsel and to which shall be attached each Guarantee
Agreement, if any, entered into since the preceding Closing Date.
(h) All the representations and warranties of the Company
contained in this Agreement and the Basic Documents to which it is a
party and of the Servicer and NLS in the Basic Documents to which they
are parties shall be true and correct in all material respects on and as
of the date hereof and on and as of the applicable Closing Date as if
made on and as of such Closing Date and the Underwriters shall have
received certificates, dated such Closing Date and signed by officers of
the Company and such entities to the effect set forth in this Section.
(i) The Company shall not have failed at or prior to the
applicable Closing Date to have performed or complied with any of its
agreements herein contained and required to be performed or complied
with by it hereunder at or prior to such Closing Date.
(j) The Underwriters shall have received by instrument
dated the applicable Closing Date (at the option of the Underwriters),
in lieu of or in addition to the legal opinions referred to in this
Section 6(B), the right to rely on opinions provided by such counsel and
all other counsel under the terms of the Basic Documents.
20
(k) The Underwriters shall have received from S&P and
Moody's confirmation that the Notes being sold on such Closing Date
shall be rated "AAA", "AAA" and "Aaa," respectively, by S&P, Fitch and
Xxxxx'x.
(l) The issuance of the Notes shall not cause a reduction
or withdrawal by a Rating Agency of the current rating of any
outstanding security issued or originated by the Company or any of its
affiliates.
(m) You shall have received certificates addressed to you
dated the applicable Closing Date from officers of the Company and
others addressing such additional matters as you may reasonably request
in form and substance satisfactory to you and your counsel.
The Company will provide or cause to be provided to you such conformed
copies of such of the foregoing opinions, notes, letters and documents as you
reasonably request.
7. Expenses. The Company agrees to pay or to otherwise cause the payment
of the following costs and expenses and all other costs and expenses incident to
the performance by it of its obligations hereunder: (i) the preparation,
printing or reproduction of the Registration Statement, the Prospectus and each
amendment or supplement to any of them, this Agreement, and each other Basic
Document; (ii) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of
the Registration Statement, the Prospectus and all amendments or supplements to,
and preliminary versions of, any of them as may be reasonably requested for use
in connection with the offering and sale of the Notes; (iii) the preparation,
printing, authentication, issuance and delivery of definitive certificates for
the Notes; (iv) the printing (or reproduction) and delivery of this Agreement,
the preliminary and supplemental Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Notes; (v) qualification of the Indenture under the Trust Indenture Act;
(vi) the qualification of the Notes for offer and sale under the securities or
Blue Sky laws of the several states as provided in Section 3(h) hereof
(including the reasonable fees, expenses and disbursements of counsel relating
to the preparation, printing or reproduction, and delivery of the preliminary
and supplemental Blue Sky Memoranda and such qualification); (vii) the fees and
disbursements of (A) the Company's counsel, (B) the Underwriters' counsel, (C)
the Trustee and its counsel, (D) the Depository Trust Company in connection with
the book-entry registration of the Notes, (E) the SEC and (F) KPMG Peat Marwick,
accountants for the Company and issuer of the Comfort Letter; and (viii) the
fees charged by S&P, Fitch and Xxxxx'x for rating the Notes.
8. Effective Date of Agreement. This Agreement shall be deemed effective
as of the date first above written upon the execution and delivery hereof by all
the parties hereto. Until such time as this Agreement shall have become
effective, it may be terminated by the Company, by notifying each of the
Underwriters, or by the Underwriters, by notifying the Company.
Any notice under this Section 8 may be given by telecopy or telephone
but shall be subsequently confirmed by letter.
21
9. Termination of Agreement. This Agreement shall be subject to
termination prior to a Closing Date, in the absolute discretion of the
Underwriters, without liability on the part of the Underwriters to the Company,
by notice to the Company, if prior to such Closing Date (i) trading in
securities generally on the New York Stock Exchange, American Stock Exchange or
the Nasdaq National Market shall have been suspended or materially limited, (ii)
a general moratorium on commercial banking activities in New York shall have
been declared by either Federal or state authorities, or (iii) there shall have
occurred any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which is such as to make it, in the judgment of the
Underwriters, impracticable or inadvisable to commence or continue the offering
of the Notes on the terms set forth in the Prospectus, as applicable, or to
enforce contracts for the resale of the Notes by the Underwriters. Notice of
such termination may be given to the Company by telecopy or telephone and shall
be subsequently confirmed by letter.
10. Information Furnished by the Underwriters. The statements set forth
in the second, fourth and seventh paragraphs and the second table under the
heading "Plan of Distribution" in the Prospectus Supplement constitute the only
information furnished by or on behalf of the Underwriters as such information is
referred to in Sections 3(b) and 5 hereof.
11. Default by One of the Underwriters. If either of the Underwriters
shall fail on a Closing Date to purchase the Notes which it is obligated to
purchase hereunder (the "Defaulted Notes"), the remaining Underwriter (the
"Non-Defaulting Underwriter") shall have the right, but not the obligation,
within one (1) Business Day thereafter, to make arrangements to purchase all,
but not less than all, of the Defaulted Notes upon the terms herein set forth;
if, however, the Non-Defaulting Underwriter shall have not completed such
arrangements within such one (1) Business Day period, then this Agreement shall
terminate without liability on the part of the Non-Defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Non-Defaulting Underwriter or the Company shall
have the right to postpone a Closing Date for a period not exceeding seven days
in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements.
12. Computational Materials. (a) It is understood that the Underwriters
may prepare and provide to prospective investors certain Computational Materials
(as defined below) in connection with the Company's offering of the Notes,
subject to the following conditions:
(i) The Underwriters shall comply with all applicable
laws and regulations in connection with the use of Computational
Materials including the No-Action Letter of May 20, 1994 issued
by the Commission to Xxxxxx, Peabody Acceptance Corporation I,
Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset
Corporation, as made applicable to other issuers and
underwriters by the Commission in response to the request of the
Public Securities Association dated May 24, 1994, and the
No-Action Letter of February 17, 1995 issued by the Commission
to the Public Securities Association (collectively, the
"Xxxxxx/PSA Letters").
22
(ii) As used herein, "Computational Materials" and the
term "ABS Term Sheets" shall have the meanings given such terms
in the Xxxxxx/PSA Letters, but shall include only those
Computational Materials that have been prepared or delivered to
prospective investors by or at the direction of an Underwriter.
(iii) Each Underwriter shall provide the Company with
representative forms of all Computational Materials prior to
their first use, to the extent such forms have not previously
been approved by the Company for use by such Underwriter. Each
Underwriter shall provide to the Company, for filing on Form 8-K
as provided in Section 12(b), copies of all Computational
Materials that are to be filed with the Commission pursuant to
the Xxxxxx/PSA Letters. Each Underwriter may provide copies of
the foregoing in a consolidated or aggregated form. All
Computational Materials described in this subsection (a)(iii)
must be provided to the Company not later than 10:00 A.M.,
Colorado time, one business day before filing thereof is
required pursuant to the terms of this Agreement.
(iv) If an Underwriter does not provide the
Computational Materials to the Company pursuant to subsection
(a)(iii) above, such Underwriter shall be deemed to have
represented, as of the applicable Closing Date, that it did not
provide any prospective investors with any information in
written or electronic form in connection with the offering of
the Notes that is required to be filed with the Commission in
accordance with the Xxxxxx/PSA Letters.
(v) In the event of any delay in the delivery by an
Underwriter to the Company of all Computational Materials
required to be delivered in accordance with subsection (a)(iii)
above, the Company shall have the right to delay the release of
the Prospectus to investors or to such Underwriter, to delay a
Closing Date and to take other appropriate actions in each case
as necessary in order to allow the Company to comply with its
agreement set forth in Section 12(b) to file the Computational
Materials by the time specified therein.
(b) The Company shall file the Computational Materials (if any)
provided to it by the Underwriter under Section 12(a)(iii) with the
Commission pursuant to a Current Report on Form 8-K no later than 5:30
P.M., New York time, on the date required pursuant to the Xxxxxx/PSA
Letters.
13. Survival of Representations and Warranties. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement or contained in notes of officers of the Company submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation or statement as to the results thereof, made by or on
behalf of the Underwriters, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes.
23
14. Miscellaneous. Except as otherwise provided in Sections 5, 8 and 9
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at 000 Xxxxx 00xx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx, and (ii) if to
the Underwriters, to the address of the respective Underwriter set forth above
with a copy to Xxxxxxx X. Xxxxx, Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx,
Xxx Xxxx, Xxx Xxxx 00000.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company, their respective directors, officers, managers,
trustees and controlling persons referred to in Section 5 hereof and their
respective successors and assigns, to the extent provided herein, and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" nor the term "successors and assigns" as used in
this Agreement shall include a purchaser from an Underwriter of any of the Notes
in his status as such purchaser.
15. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York without giving
effect to the choice of laws or conflict of laws principles thereof.
The Company hereby submits to the non-exclusive jurisdiction of the
federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof or
thereof shall have been executed and delivered on behalf of each party hereto.
24
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriters.
Very truly yours,
NELNET EDUCATION LOAN FUNDING, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: President
Confirmed as of the date first above mentioned.
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxxxxxxxx Xxxxx
------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Principal
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxx Xxx Xxxxxx
------------------------
Name: Xxxx Xxx Xxxxxx
Title: Managing Director
SCHEDULE A
------------------------------------------------------------------------------------------------------------------------------------
Anticipated
Banc of Deutsche Bank Date of Price
America Securities Issuance and to Underwriting Interest Final Proceeds to
Notes Securities LLC Inc. Delivery Public Discount Rate Maturity Issuer
-------- -------------- ------------ ------------- -------- ------------ ---------- -------------- --------------
Class Auction
A-1 $ 0 $100,000,000 July 10, 2003 100% 0.215% Rate July 1, 2043 $ 99,785,000
-------------- ------------ ------------- -------- ------------ ---------- -------------- --------------
Class Auction
A-2 $ 100,000,000 $ 0 July 10, 2003 100% 0.215% Rate July 1, 2043 $ 99,785,000
-------------- ------------ ------------- -------- ------------ ---------- -------------- --------------
Class Auction
A-3 $ 0 $100,000,000 July 10, 2003 100% 0.215% Rate July 1, 2043 $ 99,785,000
-------------- ------------ ------------- -------- ------------ ---------- -------------- --------------
Class Auction
A-4 $ 100,000,000 $ 0 July 10, 2003 100% 0.215% Rate July 1, 2043 $ 99,785,000
-------------- ------------ ------------- -------- ------------ ---------- -------------- --------------
Class Auction
A-5 $ 0 $ 75,000,000 July 10, 2003 100% 0.215% Rate July 1, 2043 $ 74,838,750
-------------- ------------ ------------- -------- ------------ ---------- -------------- --------------
Class Auction
A-6 $ 75,000,000 $ 0 July 10, 2003 100% 0.215% Rate July 1, 2043 $ 74,838,750
-------------- ------------ ------------- -------- ------------ ---------- -------------- --------------
Class Auction
A-7 $ 0 $ 75,000,000 July 10, 2003 100% 0.215% Rate July 1, 2043 $ 74,838,750
-------------- ------------ ------------- -------- ------------ ---------- -------------- --------------
Class Auction
A-8 $ 75,000,000 $ 0 July 10, 2003 100% 0.215% Rate July 1, 2043 $ 74,838,750
-------------- ------------ ------------- -------- ------------ ---------- -------------- --------------
Class Auction
A-9 $ 0 $ 75,000,000 July 10, 2003 100% 0.215% Rate July 1, 2043 $ 74,838,750
-------------- ------------ ------------- -------- ------------ ---------- -------------- --------------
Class Auction
A-10 $ 75,000,000 $ 0 July 10, 2003 100% 0.215% Rate July 1, 2043 $ 74,838,750
-------------- ------------ ------------- -------- ------------ ---------- -------------- --------------
Class October 9, Auction
A-11 $ 0 $ 75,000,000 2003 100% 0.215% Rate July 1, 2043 $ 74,838,750
-------------- ------------ ------------- -------- ------------ ---------- -------------- --------------
Class October 9, Auction
A-12 $ 75,000,000 $ 0 2003 100% 0.215% Rate July 1, 2043 $ 74,838,750
-------------- ------------ ------------- -------- ------------ ---------- -------------- --------------
Auction
Class B-1 $ 0 $ 15,000,000 July 10, 2003 100% 0.215% Rate July 1, 2043 $ 14,967,750
-------------- ------------ ------------- -------- ------------ ---------- -------------- --------------
Auction
Class B-2 $ 15,000,000 $ 0 July 10, 2003 100% 0.215% Rate July 1, 2043 $ 14,967,750
-------------- ------------ ------------- -------- ------------ ---------- -------------- --------------
Total $ 515,000,000 $515,000,000 $ 2,214,500 $1,027,785,500
-------------- ------------ ------------- -------- ------------ ---------- -------------- --------------