Exhibit 10.42
INDEMNITY AGREEMENT
AGREEMENT dated as of May 24, 2000, among PAINEWEBBER INCORPORATED, as
representative of the underwriters listed on Schedule A to the Underwriting
Agreement referred to below (each an "Underwriter" and collectively, the
"Underwriters") and UNIPAC SERVICE CORPORATION, a Nebraska corporation (the
"Company").
WHEREAS, the Underwriters have entered into an underwriting agreement
dated May 24, 2000 (the "Underwriting Agreement") with NELNET Student Loan
Corporation - 2, a Nevada corporation (the "Issuer"), pursuant to which the
Issuer has agreed to sell, and the Underwriters have agreed to purchase, subject
to the conditions set forth in the Underwriting Agreement, the Issuer's Taxable
Student Loan Asset-Backed Auction Rate Notes, Series 2000 (the "Notes"), which
Notes are being offered for sale by the Underwriters pursuant to a Prospectus
dated May 24, 2000 and a Prospectus Supplement dated May 24, 2000 (collectively,
the "Prospectus"), included as part of the Issuer's Registration Statement on
Form S-3 (Registration No. 333-93865) (the "Registration Statement"); and
WHEREAS, the Notes will be secured by, among other things, a pool of
Financed Eligible Loans that will be master serviced by NELnet, Inc. pursuant to
a Servicing Agreement dated as of June 1, 2000 (the "Servicing Agreement")
between the Issuer and NELnet, Inc.;
WHEREAS, the parties hereto wish to set forth their understanding
concerning certain matters relating to indemnification and contribution;
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows.
1. DEFINED TERMS. Capitalized terms used herein but not
otherwise defined shall have the respective meanings set forth in the
Underwriting Agreement.
2. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless
each Underwriter, and each person, if any, who controls an Underwriter
within the meaning of either Section 15 of the Securities Act of 1933
(the "1933 Act") or Section 20 of the Securities Exchange Act of 1934
(the "1934 Act") from and against any and all losses, claims, damages,
liabilities and expenses 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, except to the extent the Issuer is not
obligated to indemnify the Underwriters pursuant to Section 5 (a) of
the Underwriting Agreement. The foregoing indemnity agreement shall be
in addition to any liability which 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, the
applicable 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 except to the extent that the indemnifying party is
materially prejudiced by such omission. 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 such Underwriter or such controlling person and the indemnifying
parties and such 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 such
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 such
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 time for an 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 includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(c) If the indemnification provided for in this Agreement
is unavailable to an indemnified party under paragraph (a) 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
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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 sale 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
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 the applicable Underwriter on the other shall be deemed to
be in the same proportion as the total gross proceeds from the sale of
the Notes bear to the total underwriting discounts and commissions
received by the applicable Underwriter in connection with the sale of
the Notes. The relative fault of the Company on the one hand and the
applicable Underwriter on the other hand shall be determined by
reference to, among other things, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(d) The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Agreement
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 (c) 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 (c) 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 defending any such action, suit or proceeding.
Notwithstanding the provisions of this Agreement, 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
Underwriting Agreement. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the 0000
Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or
contribution under this Agreement 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 Agreement shall remain operative and in
full force and effect, regardless of (i) any investigation made by or
on behalf of the Underwriters, or any person controlling it or its
directors or officers, (ii) acceptance of any Notes and payment
therefor hereunder, and (iii) any termination of this Agreement. A
successor to an Underwriter, 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 Agreement.
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3. NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed, by
registered or certified mail, return receipt requested, or, if by other means,
when received by the other parties at the address set forth for such parties in
the Underwriting Agreement (in the case of the Underwriters) or the Servicing
Agreement (in the case of the Company), or such other address as may hereafter
be furnished to the other parties by like notice. Any such demand, notice or
communication hereunder shall be deemed to have been received on the date
delivered to or received at the premises of the addressee (as evidenced, in
the case of registered or certified mail, by the date noted on the return
receipt).
4. COUNTERPARTS. For the purpose of facilitating proving this
Agreement, and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts. Each counterparts shall be deemed to be an
original, and all such counterparts shall constitute one and the same
instrument.
5. GOVERNING LAW. The Agreement shall be construed in accordance
with the laws of the State of New York and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with the laws of the
State of New York, except to the extent preempted by Federal Law.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respected officers thereunto duly authorize as of the
date first above written.
UNIPAC SERVICE CORPORATE
By /s/ K. Xxx Xxxx
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K. Xxx Xxxx, President
PAINEWEBBER INCORPORATED, as representative
of the Underwriters
By /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Managing Director
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