NELNET STUDENT LOAN CORPORATION-2
$1,000,000,000
TAXABLE STUDENT LOAN ASSET-BACKED AUCTION RATE NOTES
(SERIES 2000)
UNDERWRITING AGREEMENT
May 24, 2000
PaineWebber Incorporated
as representative of the Underwriters
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
NELNET Student Loan Corporation-2, a Nevada corporation (the
"Company"), proposes to sell to PaineWebber Incorporated (the "Representative")
and the other underwriters listed on Schedule A hereto (the "Underwriters"),
pursuant to the terms of this Underwriting Agreement, $1,000,000,000 aggregate
principal amount of its Taxable Student Loan Asset-Backed Auction Rate Notes,
Series 2000 (the "Notes"). Zions First National Bank, a national banking
association, will act as eligible lender (the "Eligible Lender") on behalf of
the Company. The Notes will be issued under an Indenture of Trust dated as of
June 1, 2000 (the "Master Indenture") between the Company and Zions First
National Bank, a national banking association, as indenture trustee (the
"Trustee"), as supplemented by the Series 2000 Supplemental Indenture of Trust
(the "Indenture Supplement" and collectively with the Master Indenture, the
"Indenture"). 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 Servicing Agreement dated as of June 1, 2000 (the "Servicing
Agreement"), between NELnet and the Company. NELnet has entered into loan
subservicing agreements with (i) InTuition, Inc., a Florida corporation
("InTuition"), dated as of June 1, 2000 (the "InTuition Subservicing Agreement")
pursuant to which InTuition will act as subservicer with respect to certain of
the Financed Eligible Loans and (ii) UNIPAC Service Corporation ("UNIPAC") dated
as of June 1, 2000 (the "UNIPAC Subservicing Agreement") pursuant to which
UNIPAC will act as subservicer with respect to certain of the Financed Eligible
Loans. The InTuition Subservicing Agreement and the UNIPAC Subservicing
Agreement are referred to collectively as the "Subservicing Agreements."
This Agreement, the Loan Purchase Agreement, dated as of June 1,
2000 between NHELP-I, Inc. ("NHELP-I") and the Company (along with the related
Loan Transfer Addendum, the " NHELP-I Purchase Agreement"), the Loan Purchase
Agreement, dated as of June 1, 2000 between NHELP-III, Inc. ("NHELP-III") and
the Company (along with the related Loan Transfer Addendum, the "NHELP-III
Purchase Agreement" and, collectively with the NHELP-I Purchase Agreement, the
"Purchase Agreements"), the Servicing Agreement, the Subservicing Agreements and
the Indenture shall collectively hereinafter be referred to as the "Basic
Documents."
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Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Indenture or the Prospectus.
The Company proposes, upon the terms and conditions set forth
herein, to sell to each of the Underwriters on the Closing Date (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) 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, each of the Underwriters severally agrees to
purchase from the Company, such principal amount of the Classes of the Notes at
such respective purchase prices as are set forth on Schedule A hereto.
(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. 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 June 1, 2000 (the "Closing
Date"). The place of such closing and the Closing Date may be varied by
agreement between the Representative and the Company.
The Notes will be delivered to the Underwriters against payment
of the purchase price therefor to the Company in Federal Funds, by wire, or such
other form of payment as to which the parties may agree. Unless otherwise agreed
to by the Company and the Representative, each Class of Notes will be evidenced
by a single global security in definitive form 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 the 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 next preceding the Closing Date.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to each of the Underwriters that:
(a) registration statement on Form S-3 (No. 333-93865), 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
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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"; 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
"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
the 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 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 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 Master Indenture and the Indenture Supplement have been
duly and validly authorized by the Company and, upon their execution
and delivery by the Company and assuming due authorization, execution
and delivery by the Trustee, will be valid and binding agreements of
the Company, enforceable in accordance with their 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.
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(f) The Notes have been duly authorized by the Company and the
Notes to be issued on the 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.
(g) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Nevada with full
corporate power and authority to own, lease and operate its properties
and to conduct its business 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, to
the knowledge of the Company threatened, 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, are
reasonably likely to 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
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 Closing Date) or conflicts or
will conflict with or constitutes or will constitute a breach of, or a
default under, the organizational documents or bylaws 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 material agreement, indenture, lease or other instrument to which
the Company is a party or by which the Company or any of its
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
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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.
(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 Seller's assignment and delivery of Financed Eligible
Loans to the order of the Trustee on behalf of the Company as of the
applicable sale date described in the Purchase Agreements will vest in
the Trustee on behalf of the Company all of the Seller's right, title
and interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
(m) 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.
(n) 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 (the "1940 Act").
(o) 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 the applicable Closing Date.
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,
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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, or if 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
prepare and file with the SEC, an amendment or supplement to such
Prospectus that will correct such statement or omission or an
amendment that will effect such compliance.
(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
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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 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 Representative terminating this
Agreement pursuant to Section 8 or Section 9 hereof) or if this
Agreement shall be terminated by the Representative 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 the Closing Date, the Company shall xxxx its
accounting and other records, if any, relating to the Financed
Eligible Loans and shall cause the Servicer, UNIPAC and InTuition to
xxxx their respective
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computer records relating to the Financed Eligible Loans to show the
absolute ownership by the Trustee, as eligible lender of, and the
interest of the Company in, the Initial Financed Eligible Loans, and
from and after each Closing Date the Company will take, or cause the
Servicer, UNIPAC and InTuition to take, as the case may be, such
actions with respect to the respective records of each with regard to
any Additional Acquired Eligible Loans at the time of the acquisition
thereof by the Trustee on behalf of the Company and the Company shall
not take, or shall permit any other person to take, any action
inconsistent with the ownership of, and the interest of the Company
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 hereafter, none of the Company and any entity
affiliated, directly or indirectly, with the Company will, without the
prior written notice to the Underwriters, offer to sell or sell notes
(other than the Notes) collateralized by FFELP Loans; 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.
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 (including reasonable costs of investigation) 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 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 or on behalf of such Underwriter
expressly for use in connection therewith; 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 of 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. The
foregoing indemnity agreement shall be in addition to any liability which the
Company may otherwise have.
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(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 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 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 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
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
10
(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 an Underwriter furnished in writing by or on behalf of
such Underwriter expressly for use in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus. 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 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 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
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(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 exceed 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. 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.
(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.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase the Notes hereunder are subject to the following
conditions:
(a) All actions required to be taken and all filings required to
be made by the Company under the Act prior to the sale of the Notes
shall have been duly taken or made. At and prior to the 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 involving a
prospective change, in or affecting the condition (financial or
other), business, properties, net worth, or results of operations of
the Company, the Sellers, the Servicer, UNIPAC or InTuition not
contemplated by the Registration Statement, which in the opinion of
the Representative, would materially adversely affect the market for
the Notes, (ii) any downgrading in the rating of any debt securities
of the Company, a Seller, the Servicer, UNIPAC or InTuition by any
nationally recognized statistical rating organization or any public
announcement that any such
12
organization has under surveillance or review its rating of any debt
securities of the Company, a Seller, the Servicer, UNIPAC or InTuition
(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 Representative,
materially adversely affect the market for the Notes.
(c) You shall have received an opinion addressed to you of Xxxxx
Xxxx, in its capacity as counsel to the Company, dated the Closing
Date, in form and substance satisfactory to you and your counsel with
respect to the status of the Company, to each of the Purchase
Agreements, Servicing Agreement, Indenture, Auction Agency Agreement,
Broker-Dealer Agreements and this 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 Sellers to the Company and from the Company to
the Trustee.
(d) You shall have received an opinion addressed to you of Xxxxx Xxxx LLP,
in its capacity as counsel for the Company, dated the 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 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 Closing
Date, in form and substance satisfactory to you.
(g) You shall have received an opinion addressed to you of Xxxxxxx Xxxxx
Xxxxxxx & Ingersoll LLP, in its capacity as counsel for the Company,
dated the 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.
13
(h) You shall have received opinions addressed to you of Perry,
Guthery, Xxxxx & Xxxxxxxx, P.C. in their capacity as counsel to NELnet
and each of the Sellers, each dated the Closing Date and satisfactory
in form and substance to you and your counsel, to the effect that:
(i) Each of NELnet and each of the Sellers is a corporation
in good standing under the laws of the State of Nevada; 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 Servicing
Agreements, the Purchase Agreements and the Subservicing Agreements to
which it is a party.
(ii) The Purchase Agreements have been duly authorized,
executed and delivered by the respective Seller and the Servicing
Agreement and the Subservicing Agreements have been duly authorized,
executed and delivered by NELnet and each such agreement is the legal,
valid and binding obligations of the respective Seller and NELnet, as
the case may be, enforceable against each such Seller and NELnet, 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 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
Servicing Agreement or the Subservicing Agreements, or the execution
by each Seller of the respective Purchase Agreement, nor the
consummation by NELnet or each Seller of the transactions contemplated
therein nor the fulfillment of the terms thereof by NELnet or each
Seller 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 or each Seller or of any indenture or other
agreement or instrument to which NELnet or any Seller is a party or by
which NELnet or any Seller is bound, or result in a violation of or
contravene the terms of any statute, order or regulation applicable to
NELnet or any Seller of any court, regulatory body, administrative
agency or governmental body having jurisdiction over NELnet or any
Seller.
(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 or any Seller
before or by any governmental authority that might materially and
adversely affect the performance by NELnet or any Seller of its
obligations under, or the validity or enforceability of, the Servicing
Agreement, the Subservicing Agreements or the Purchase Agreements 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 Servicing Agreement, or the Subservicing
Agreements or the representations and warranties of the Sellers
contained in the Purchase Agreements are other than as stated therein.
14
(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 Servicing Agreement or the Subservicing Agreements,
(b) for the due execution, delivery and performance by each Seller of
the respective Purchase Agreement or (c) for the perfection of the
Company's and the Trustee's interest in the Student Loans sold
pursuant to the Purchase Agreements or the exercise by the Company (or
its permitted assigns) and the Trustee of their rights and remedies
under the Purchase Agreements, including specifically the filings of
any Uniform Commercial Code financing statements, EXCEPT for the
execution and delivery of the Guarantee Agreements.
(vii) The Purchase Agreements together with the related xxxx
of sale and blanket endorsement effects a valid sale to the Trustee of
the Student Loans to be sold under the Purchase Agreements enforceable
against creditors of, and purchasers from, the respective Seller.
(viii) As of the date specified in a schedule to such
opinion, there were no (a) UCC financing statements naming a Seller as
debtor or seller and covering any Student Loans to be sold under the
related Purchase Agreement or 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 sold under the related Purchase Agreement or
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.
(ix) As of the date of such opinion, by executing the
Guarantee Agreements and upon execution and delivery of the
instruments of transfer described in the Purchase Agreements and
notification of the Guarantors and borrowers of the transfer
contemplated thereby, 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 sold from time to time under the Purchase Agreements,
subject to the terms and conditions of the Guarantee Agreements and
the Act.
(i) You shall have received an opinion addressed to you of
counsel to the Trustee, dated the Closing Date and in form and
substance satisfactory to you and your counsel, to the effect that:
(i) The Trustee is a national banking association duly
organized and validly existing under the laws of the United States of
America.
(ii) The Trustee has the full corporate trust power to
accept the office of indenture trustee under the Indenture and to
enter into and perform its obligations under the Indenture, the
Custodian Agreements, the Auction Agency Agreement and each Guarantee
Agreement.
15
(iii) The execution and delivery of each of the Indenture,
the Custodian Agreements, the Auction Agency Agreement and each
Guarantee Agreement, and the performance by the Trustee of its
obligations under the Indenture, the Custodian Agreements, the Auction
Agency Agreement and each Guarantee Agreement, have been duly
authorized by all necessary action of the Trustee and each has been
duly executed and delivered by the Trustee.
(iv) The Indenture, the Custodian Agreements, the Auction
Agency Agreement and each Guarantee Agreement constitute valid and
binding obligations of the Trustee enforceable against the Trustee.
(v) The execution and delivery by the Trustee of the
Indenture, the Custodian Agreement, the Auction Agency Agreement and
each Guarantee Agreement do not require any consent, approval or
authorization of, or any registration or filing with, any state or
United States Federal governmental authority.
(vi) Each of the Notes has been duly authenticated by the
Trustee.
(vii) Neither the consummation by the Trustee of the
transactions contemplated in the Indenture, the Custodian Agreements,
the Auction Agency Agreement and each Guarantee Agreement nor the
fulfillment of the terms thereof by the Trustee will conflict with,
result in a breach or violation of, or constitute a default under any
law or the charter, by-laws or other organizational documents of the
Trustee or the terms of any indenture or other agreement or instrument
known to such counsel and to which the Trustee or any of its
subsidiaries is a party or is bound or any judgment, order or decree
known to such counsel to be applicable to the Trustee or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Trustee
or any of its subsidiaries.
(viii) There are no actions, suits or proceedings pending
or, to the best of such counsel's knowledge after due inquiry,
threatened against the Trustee (as indenture trustee under the
Indenture or in its individual capacity) before or by any governmental
authority that might materially and adversely affect the performance
by the Trustee of its obligations under, or the validity or
enforceability of, the Indenture, the Custodian Agreements, the
Auction Agency Agreement or any Guarantee Agreement.
(ix) The execution, delivery and performance by the Trustee
of the Indenture, the Custodian Agreements, the Auction Agency
Agreement or any Guarantee Agreement will not subject any of the
property or assets of the Company or any portion thereof, to any lien
created by or arising under the Indenture that is unrelated to the
transactions contemplated in such agreements.
(x) The Trustee is an "eligible lender" for purposes of the
FFELP Program in its capacity as trustee with respect to Financed
Eligible Loans held under the Indenture.
16
(j) You shall have received certificates addressed to you dated
the 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 each Seller
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 such Seller or the Servicer, as the
case may be, contained in the respective Purchase Agreement, the
Servicing Agreement and the Subservicing Agreements, as applicable,
are true and correct in all material respects, that each of such
Seller 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 Closing Date, (ii) that they have
reviewed the Prospectus and that the information therein regarding
such Seller or the Servicer, as applicable, 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 such Seller or the Servicer, as applicable, has
occurred.
(k) You shall have received certificates addressed to you dated
the 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 UNIPAC and
InTuition in which such officers shall state that, to the best of
their knowledge after reasonable investigation, (i) the
representations and warranties of UNIPAC and InTuition contained in
the Subservicing Agreements are true and correct in all material
respects, that each of UNIPAC and InTuition 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 Closing Date, (ii)
that they have reviewed the Prospectus and that the information
therein regarding UNIPAC and InTuition 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 UNIPAC and InTuition has occurred.
(l) You shall have received evidence satisfactory to you that, on
or before the Closing Date, UCC-1 financing statements have been or
are being filed in the office of the Secretary of State of the States
of Nevada and Nebraska reflecting the grant of the security interest
by the Company in the Financed Eligible Loans and the proceeds thereof
to the Trustee.
(m) You shall have received a certificate addressed to you dated
the 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.
(n) The Underwriters shall have received on the Closing Date from
KPMG Peat Marwick a letter dated the Closing Date, and in form and
substance satisfactory to the Representative, 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
(o) 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 the Closing Date as if made on and as of the Closing Date
and the Underwriters shall have received a certificate, dated the
Closing Date and signed by an executive officer of the Company to the
effect set forth in this Section 6(o) and in Section 6(p) hereof.
(p) The Company shall not have failed at or prior to the 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 Closing Date.
(q) The Underwriters shall have received by instrument dated the
Closing Date (at the option of the Representative), 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.
(r) Each of the Class A Notes shall be rated at least "AAA",
"AAA" and "Aaa", respectively, by Fitch IBCA, Inc. ("Fitch"), Standard
& Poor's Ratings Service, a division of The XxXxxx-Xxxx Companies
("S&P"), and Xxxxx'x Investors Services, Inc. ("Moody's"), and that
neither Fitch, S&P nor Moody's have placed the Class A Notes under
surveillance or review with possible negative implications.
(s) The Class B Notes shall be rated at least "A", "A" and "A2",
respectively, by Fitch, S&P and Moody's, and that neither Fitch, S&P
nor Moody's have placed the Class B Notes under surveillance or review
with possible negative implications.
(t) The issuance of the Notes shall not have resulted in a
reduction or withdrawal by Fitch, S&P or Moody's of the current rating
of any outstanding securities issued or originated by the Company or
any of its affiliates.
(u) 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 Sellers', UNIPAC's and InTuition's computer
systems.
(v) You shall have received certificates addressed to you dated
the Closing Date from officers of the Company addressing such
additional matters as you may reasonably request in form and substance
satisfactory to you and your counsel.
(w) You shall have received a signed Indemnity Agreement from
UNIPAC Service Corporation in form and substance satisfactory to you
and your counsel.
(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
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
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 and (G) KPMG Peat Marwick, accountants
for the Company and issuer of the Comfort Letter; and (viii) the fees charged by
S&P, Fitch and Moody's 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 the Representative,
or by the Representative, by notifying the Company.
Any notice under this Section 8 may be given by telecopy or
telephone but shall be subsequently confirmed by letter.
9. TERMINATION OF AGREEMENT. This Agreement shall be subject to termination
in the absolute discretion of the Representative, without liability on the part
of the Underwriters to the Company, by notice to the Company, if prior to the
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 on the
financial markets of the United States is such as to make it, in the judgment of
the Representative, 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.
19
10. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth
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 any of the Underwriters shall
fail on the Closing Date to purchase the Notes which it is obligated to purchase
hereunder (the "Defaulted Notes"), the remaining Underwriters (the
"Non-Defaulting Underwriters") 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 Underwriters 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 Underwriters.
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 Underwriters or the
Company shall have the right to postpone the 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,
Peabody & 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").
(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 providedin Section
11(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
20
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 the 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 11(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 11(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.
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 Xxxxxx, and (ii) if to the
Underwriters, to PaineWebber Incorporated, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxx.
This Agreement has been and is made solely for the benefit of the
Underwriters, the Company, their respective directors, officers, 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.
21
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.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the Underwriters.
Very truly yours,
NELNET Student Loan Corporation - 2
By /s/ Xxxxxx X. Page
---------------------
Confirmed as of the date first above mentioned.
PAINEWEBBER INCORPORATED, acting on
behalf of itself and as Representative of the Underwriters
By /s/ Xxxx X. Xxxxxx
---------------------
Xxxx X. Xxxxxx, Managing Director
22
SCHEDULE A
----------- ---------------------------------------------------------------------------------------------------------------
UNDERWRITERS
----------- -------------------------------------------------------------------------------------------- ------------------
Notes PaineWebber Xxxxxxx Xxxxx Banc of America Xxxxxxx Xxxxx, X.X. Xxxxxx Xxxxxx Financial TOTAL
Incorporated Barney Inc. Securities LLC Xxxxxx, Xxxxxx Securities Inc Markets LLC
& Xxxxx
Incorporated
----------- ------------- -------------- --------------- --------------- -------------- ---------------- ------------------
Class A-1 $48,000,000 $0 $0 $0 $1,000,000 $1,000,000 $50,000,000
----------- ------------- -------------- --------------- --------------- -------------- ---------------- ------------------
Class A-2 $50,000,000 $0 $0 $0 $0 $0 $50,000,000
----------- ------------- -------------- --------------- --------------- -------------- ---------------- ------------------
Class A-3 $50,000,000 $0 $0 $0 $0 $0 $50,000,000
----------- ------------- -------------- --------------- --------------- -------------- ---------------- ------------------
Class A-4 $50,000,000 $0 $0 $0 $0 $0 $50,000,000
----------- ------------- -------------- --------------- --------------- -------------- ---------------- ------------------
Class A-5 $50,000,000 $0 $0 $0 $0 $0 $50,000,000
----------- ------------- -------------- --------------- --------------- -------------- ---------------- ------------------
Class A-6 $50,000,000 $0 $0 $0 $0 $0 $50,000,000
----------- ------------- -------------- --------------- --------------- -------------- ---------------- ------------------
Class A-7 $50,000,000 $0 $0 $0 $0 $0 $50,000,000
----------- ------------- -------------- --------------- --------------- -------------- ---------------- ------------------
Class A-8 $0 $75,000,000 $0 $0 $0 $0 $75,000,000
----------- ------------- -------------- --------------- --------------- -------------- ---------------- ------------------
Class A-9 $0 $75,000,000 $0 $0 $0 $0 $75,000,000
----------- ------------- -------------- --------------- --------------- -------------- ---------------- ------------------
Class A-10 $0 $75,000,000 $0 $0 $0 $0 $75,000,000
----------- ------------- -------------- --------------- --------------- -------------- ---------------- ------------------
Class A-11 $0 $75,000,000 $0 $0 $0 $0 $75,000,000
----------- ------------- -------------- --------------- --------------- -------------- ---------------- ------------------
Class A-12 $0 $0 $100,000,000 $0 $0 $0 $100,000,000
----------- ------------- -------------- --------------- --------------- -------------- ---------------- ------------------
Class A-13 $0 $0 $100,000,000 $0 $0 $0 $100,000,000
----------- ------------- -------------- --------------- --------------- -------------- ---------------- ------------------
Class A-14 $0 $0 $0 $100,000,000 $0 $0 $100,000,000
----------- ------------- -------------- --------------- --------------- -------------- ---------------- ------------------
Class B-1 $50,000,000 $0 $0 $0 $0 $0 $50,000,000
----------- ------------- -------------- --------------- --------------- -------------- ---------------- ------------------
TERMS OF THE NOTES
CLASS INTEREST RATE FINAL MATURITY PRICE TO PUBLIC UNDERWRITING DISCOUNT PROCEEDS TO
----- ------------- --------------- --------------- --------------------- -----------
DATE ISSUER
---- ------
A-1 Auction Rate 12/1/32 100% 0.28% $49,860,000
A-2 Auction Rate 12/1/32 100% 0.28% $49,860,000
A-3 Auction Rate 12/1/32 100% 0.28% $49,860,000
A-4 Auction Rate 12/1/32 100% 0.28% $49,860,000
A-5 Auction Rate 12/1/32 100% 0.28% $49,860,000
A-6 Auction Rate 12/1/32 100% 0.28% $49,860,000
A-7 Auction Rate 12/1/32 100% 0.28% $49,860,000
A-8 Auction Rate 12/1/32 100% 0.28% $74,790,000
A-9 Auction Rate 12/1/32 100% 0.28% $74,790,000
A-10 Auction Rate 12/1/32 100% 0.28% $74,790,000
A-11 Auction Rate 12/1/32 100% 0.28% $74,790,000
A-12 Auction Rate 12/1/32 100% 0.28% $99,720,000
A-13 Auction Rate 12/1/32 100% 0.28% $99,720,000
A-14 Auction Rate 12/1/32 100% 0.28% $99,720,000
B-1 Auction Rate 12/1/32 100% 0.28% $49,860,000
---------------------- ----------------
Total $2,800,000 $997,200,000
