NELNET STUDENT LOAN TRUST 200_-_
$-------------
STUDENT LOAN ASSET-BACKED NOTES
FORM OF
UNDERWRITING AGREEMENT
[Date]
[Names of Underwriters]
Ladies and Gentlemen:
Nelnet Student Loan Funding, LLC, a Delaware limited liability company
("Nelnet Funding") proposes to cause Nelnet Student Loan Trust 200_-_, a
Delaware business trust (the "Company"), to sell to [Names of the Underwriters]
(each an "Underwriter" and collectively, the "Underwriters"), pursuant to the
terms of this Underwriting Agreement, $__________ aggregate principal amount of
the Company's Student Loan Asset-Backed Notes (the "Notes") in the classes and
initial principal amounts set forth on Schedule A hereto. 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 _____ __, 200_ (the "Indenture") between the Company and
Zions First National Bank, a national banking association, as indenture trustee
(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 Servicing Agreement dated as of _____ __, 200_ (the
"Servicing Agreement"), between NELnet and the Company. NELnet has entered into
loan subservicing agreements with (i) InTuition, Inc., dated as of ______ __,
200_ (the "InTuition Subservicing Agreement") pursuant to which InTuition will
act as subservicer with respect to certain of the Financed Eligible Loans and
(ii) Nelnet Loan Services, Inc. (formally known as UNIPAC Service Corporation)
("NLS") dated as of ______ __, 200_ (the "NLS Subservicing Agreement") pursuant
to which NLS will act as subservicer with respect to certain of the Financed
Eligible Loans. The InTuition Subservicing Agreement and the NLS Subservicing
Agreement are referred to collectively as the "Subservicing Agreements."
This Agreement, the Loan Purchase Agreement, dated as of _______ __,
200_ between _______ (the "Seller") and Nelnet Funding (along with the related
Loan Transfer Addendum, the " Nelnet Funding Purchase Agreement"), the Loan
Purchase Agreement, dated as of _______ __, 200_ between Nelnet Funding and the
Company (along with the related Loan Transfer Addendum, the "Nelnet Trust
Purchase Agreement Agreement" and, collectively with the Nelnet Funding Purchase
Agreement, the "Purchase Agreements"), the Trust Agreement, dated as of _______
__, 200_, among NELnet, Inc., as Administrator, Wilmington Trust Company, as
Delaware Trustee and Nelnet Funding, as Sponsor (the "Trust Agreement"), the
Servicing Agreement, the Subservicing Agreements 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.
Nelnet Funding proposes to cause the Company, 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.
Nelnet Funding 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) Nelnet Funding hereby
agrees, subject to all the terms and conditions set forth herein, to cause the
Company to sell to each of the Underwriters and, upon the basis of the
representations, warranties and agreements of Nelnet Funding herein contained
and subject to all the terms and conditions set forth herein, each of the
Underwriters severally and not jointly agrees to purchase from the Company, such
principal amount of each Class of the Notes at such respective purchase prices
as are set forth next to the name of each Underwriter 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 _______ __, 200_ (the
"Closing Date"). The place of such closing and the Closing Date may be varied by
agreement between the Underwriters and Nelnet Funding.
The Notes 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 Nelnet Funding
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 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.
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3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Nelnet Funding
represents and warrants to each of the Underwriters that:
(a) A registration statement on Form S-3 (No. ________),
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
"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 Nelnet Funding 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.
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(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 Nelnet
Funding 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 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) Nelnet Funding is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware 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 Nelnet Funding.
(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 Nelnet Funding 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 Nelnet Funding contemplated, against
Nelnet Funding, or to which Nelnet Funding 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 Nelnet Funding
("Material Adverse Effect"), or would materially and adversely affect
the ability of Nelnet Funding, or 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.
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(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 Nelnet Funding or the Company, nor the
consummation by Nelnet Funding or 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 of Nelnet Funding or 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 Nelnet Funding or the
Company is a party or by which Nelnet Funding or 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 Nelnet Funding or
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 Nelnet Funding or 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) Nelnet Funding 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 Nelnet Funding of its obligations
under, this Agreement and the other Basic Documents to which it is a
party have been duly and validly authorized by Nelnet Funding and this
Agreement and the other Basic Documents have been duly executed and
delivered by Nelnet Funding and constitute the valid and legally
binding agreements of Nelnet Funding, enforceable against Nelnet
Funding 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) Nelnet Funding'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 Nelnet Funding's
right, title and interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance.
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(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 Nelnet Funding
in any Basic Document to which Nelnet Funding 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 NELNET FUNDING. Nelnet Funding agrees with each of the
Underwriters as follows:
(a) Nelnet Funding 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 Nelnet Funding deem appropriate in connection with the offering of
the Notes, and Nelnet Funding will timely file such supplement to the
prospectus with the SEC pursuant to Rule 424(b) under the Act, but
Nelnet Funding 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 the Underwriters shall have reasonably objected
thereto promptly after receipt thereof; Nelnet Funding 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 Nelnet Funding 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
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with the Act or the Rules and Regulations, Nelnet Funding 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) Nelnet Funding will immediately inform the Underwriters
(i) of the receipt by Nelnet Funding 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 Nelnet Funding is a party relating to the offering or sale of the
Notes.
(d) Nelnet Funding 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) Nelnet Funding 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 Nelnet Funding 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) Nelnet Funding 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 Nelnet Funding.
(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 Nelnet Funding, Nelnet
Funding shall cause to be furnished such documents and such other
actions to be taken.
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(i) So long as any of the Notes are outstanding, Nelnet
Funding 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 Nelnet Funding 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 Nelnet Funding to comply with the
terms or fulfill any of the conditions of this Agreement, Nelnet
Funding 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 Nelnet Funding 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,
Nelnet Funding 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 Nelnet Funding
pursuant to the Servicing Agreement as soon as such statements and
reports are furnished to the Trustee or Nelnet Funding.
(n) On or before the Closing Date, Nelnet Funding shall xxxx
its accounting and other records, if any, relating to the Financed
Eligible Loans and shall cause the Servicer, InTuition and NLS to xxxx
their respective 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 Nelnet Funding will take,
or cause the Servicer, InTuition and NLS 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 Nelnet
Funding 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.
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(o) For the period beginning on the date of this Agreement and
ending 90 days hereafter, none of Nelnet Funding and any entity
affiliated, directly or indirectly, with Nelnet Funding 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 Nelnet Funding.
(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, Nelnet Funding 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, Nelnet Funding 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) Nelnet Funding 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 Nelnet Funding 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 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 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 Nelnet Funding has
previously furnished sufficient copies thereof to such Underwriter. The
foregoing indemnity agreement shall be in addition to any liability
which Nelnet Funding 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 Nelnet Funding, 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 (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.
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(c) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless Nelnet Funding and its directors and
officers, and any person who controls Nelnet Funding within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the indemnity from Nelnet Funding to the Underwriters set
forth in paragraph (a) hereof, but only with respect to information
relating to an 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 Nelnet Funding, 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 Nelnet Funding by paragraph
(b) above (except that if Nelnet Funding 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 Nelnet Funding, 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 Nelnet Funding
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 Nelnet Funding 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 Nelnet
Funding 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 Nelnet Funding 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 Nelnet
Funding 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.
11
(e) Nelnet Funding 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 price at which the Notes
underwritten by it and distributed to the public were offered to the
public exceeds 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. 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 Nelnet Funding 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, Nelnet Funding 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, Nelnet Funding 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 precedent:
(a) All actions required to be taken and all filings required
to be made by Nelnet Funding 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 Nelnet Funding or
the Underwriters, shall be contemplated by the Commission.
12
(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 Nelnet Funding, the Sellers, the Servicer, InTuition 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 Nelnet Funding, a Seller, the
Servicer, InTuition 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 Nelnet Funding, a Seller, the
Servicer, InTuition 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 Nelnet Funding 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 Nelnet Funding and the
Company, dated the Closing Date, in form and substance satisfactory to
you and your counsel with respect to the status of Nelnet Funding and
the Company, to each of the Purchase Agreements, Servicing Agreement,
Indenture 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 Nelnet Funding and 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 Nelnet Funding, from Nelnet Funding
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 Nelnet Funding and 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 Nelnet Funding and 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.
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(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
Nelnet Funding and 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.
(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 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
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.
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(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.
(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.
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(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 opinions addressed to you of
Xxxxxxxx, Xxxxxx & Finger, in their capacity as counsel to the Delaware
Trustee, the Company and Nelnet Funding, dated the Closing Date and 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 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 and each Guarantee
Agreement.
(iii) The execution and delivery of each of the
Indenture, the Custodian Agreements and each Guarantee
Agreement, and the performance by the Trustee of its
obligations under the Indenture, the Custodian Agreements 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 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 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.
16
(vii) Neither the consummation by the Trustee of the
transactions contemplated in the Indenture, the Custodian
Agreements 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 or any Guarantee
Agreement.
(ix) The execution, delivery and performance by the
Trustee of the Indenture, the Custodian Agreements 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.
(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 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.
17
(l) 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 InTuition and
NLS in which such officers shall state that, to the best of their
knowledge after reasonable investigation, (i) the representations and
warranties of InTuition and NLS contained in the Subservicing
Agreements are true and correct in all material respects, that each of
InTuition and 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 the Closing Date, (ii) that they have
reviewed the Prospectus and that the information therein regarding
InTuition and 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 InTuition and NLS
has occurred.
(m) 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 ________________ 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 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 Closing Date
from _______________ a letter dated the 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.
(p) All the representations and warranties of Nelnet Funding
and 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 Nelnet Funding to the effect set forth in this Section 6(p) and in
Section 6(q) hereof.
18
(q) Neither Nelnet Funding nor the Company shall 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.
(r) The Underwriters shall have received by instrument dated
the 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 "A", "A" and "A2", 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 Sellers', InTuition's and NLS's computer
systems.
(u) You shall have received certificates addressed to you
dated the Closing Date from officers of Nelnet Funding 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 such other opinions, certificates
and documents as are required under the Indenture as a condition to the
issuance of the Notes.
Nelnet Funding 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. Nelnet Funding 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
19
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 Delaware Trustee and its counsel, (E) the
Depository Trust Company in connection with the book-entry registration of the
Notes, (F) the SEC and (G) _______________, 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 Nelnet Funding, by notifying each of
the Underwriters, or by the Underwriters, by notifying Nelnet Funding.
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 Underwriters, without liability on
the part of the Underwriters to Nelnet Funding, by notice to Nelnet Funding, 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 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 Nelnet Funding by telecopy or telephone and
shall be subsequently confirmed by letter.
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 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.
20
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 Nelnet Funding
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 Nelnet Funding'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").
(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 Nelnet Funding
with representative forms of all Computational Materials prior
to their first use, to the extent such forms have not
previously been approved by Nelnet Funding for use by such
Underwriter. Each Underwriter shall provide to Nelnet Funding,
for filing on Form 8-K as provided in 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
described in this subsection (a)(iii) must be provided to
Nelnet Funding not later than 10:00 A.M., Colorado time, one
business day before filing thereof is required pursuant to the
terms of this Agreement.
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(iv) If an Underwriter does not provide the
Computational Materials to Nelnet Funding 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 Nelnet Funding of all Computational Materials
required to be delivered in accordance with subsection
(a)(iii) above, Nelnet Funding 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 Nelnet Funding to comply with its agreement set forth in
Section 11(b) to file the Computational Materials by the time
specified therein.
(b) Nelnet Funding 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
Nelnet Funding or its officers and of the Underwriters set forth in or made
pursuant to this Agreement or contained in notes of officers of Nelnet Funding
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, Nelnet Funding 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 Nelnet Funding, at
_________________________, Attention: ____________, 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, Nelnet Funding, 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.
22
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.
Nelnet Funding 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.
[Remainder of page intentionally left blank.]
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriters.
Very truly yours,
NELNET STUDENT LOAN FUNDING, LLC
By ____________________________
Name: ________________________
Title: ________________________
Confirmed as of the date first
above mentioned.
[NAME OF UNDERWRITER]
By ____________________________
Name: ________________________
Title: ________________________
[NAME OF UNDERWRITER]
By ____________________________
Name: ________________________
Title: ________________________
SCHEDULE A
--------------- ------------------ --------------------- -------------------
Notes [Name of [Name of Underwriter] TOTAL
Underwriter]
--------------- ------------------ --------------------- -------------------
200_-_-_ $_________ $_________ $_________
--------------- ------------------ --------------------- -------------------
200_-_-_ $_________ $_________ $_________
--------------- ------------------ --------------------- -------------------
200_-_-_ $_________ $_________ $_________
--------------- ------------------ --------------------- -------------------
Terms of the Notes
Class Interest Rate Final Maturity Date Price to Public Underwriting Discount Proceeds to Issuer
----- ------------- ------------------- --------------- --------------------- ------------------
200_-_-_ 3-month LIBOR plus ___% ____ __, 20__ ___% ___% $_________
200_-_-_ 3-month LIBOR plus ___% ____ __, 20__ ___% ___% $_________
200_-_-_ 3-month LIBOR plus ___% ____ __, 20__ ___% ___% $_________
TOTAL $____________
