EXHIBIT 1.1
EXECUTION COPY
NELNET EDUCATION LOAN FUNDING, INC.
STUDENT LOAN ASSET-BACKED NOTES,
SERIES 2004-2
UNDERWRITING AGREEMENT
April 22, 2004
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
as Representatives of the Underwriters
Ladies and Gentlemen:
Nelnet Education Loan Funding, Inc., a Nebraska corporation (the
"Company"), proposes to sell to X.X. Xxxxxx Securities Inc. and Xxxxxx Xxxxxxx &
Co. Incorporated and each of the other underwriters named in Schedule A hereto
(each an "Underwriter" and collectively, the "Underwriters") for whom you are
acting as representatives (the "Representatives"), pursuant to the terms of this
Underwriting Agreement, $817,700,000 aggregate principal amount of the Company's
Student Loan Asset-Backed Class A-1, Class A-2, Class A-3, Class A-4, Class
A-5b, Class A-5c, Class B-1 and Class B-2 Notes, Series 2004-2 (collectively,
the "Offered Notes") in the classes and initial principal amounts and at the
initial interest rates set forth on Schedule A hereto. Xxxxx Fargo Bank,
National Association, a national banking association, will act as eligible
lender trustee on behalf of the Company (the "Eligible Lender Trustee").
The Offered Notes, together with the Company's Student Loan Asset-Backed
Class A-5a Notes, Series 2004-2 (the "Reset Rate Notes" and together with the
"Offered Notes," the "Notes") will be issued under an indenture of trust, dated
as of April 1, 2004 (the "Indenture"), among the Company, the Eligible Lender
Trustee and Xxxxx Fargo Bank, National Association, a national banking
association, as indenture trustee (the "Trustee"). The Offered Notes are being
offered pursuant to and are described more fully in the Prospectus (as defined
below).
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 more fully in the Prospectus. The Financed Eligible Loans will be
serviced by Nelnet, Inc., a Nebraska corporation (referred to herein as "Nelnet"
or the "Servicer"), pursuant to a servicing agreement, dated as of April 1, 2004
(the "Servicing Agreement"), between the Company and the Servicer, as servicer.
This Agreement, an eligible loan acquisition certificate, dated as of
April 29, 2004 between the Company and the Trustee, in such capacity
("Transferor") (along with the related Annex A, the "Loan Acquisition
Certificate"), an initial auction agency agreement, dated as of April 1, 2004
(the "Initial Auction Agency Agreement"), among the Company, the Trustee and
Deutsche Bank Trust Company Americas, as the initial auction agent (the "Auction
Agent"), a broker-dealer agreement, dated as of April 1, 2004 (the "JPMSI
Broker-Dealer Agreement"), between X.X. Xxxxxx Securities Inc., as broker-dealer
("JPMSI Broker-Dealer") and the Auction Agent, a broker-dealer agreement, dated
as of April 1, 2004 (the "MSCI Broker-Dealer Agreement", and together with the
JPMSI Broker-Dealer Agreement, the "Broker-Dealer Agreements"), between Xxxxxx
Xxxxxxx & Co. Incorporated, as broker-dealer ("MSCI Broker-Dealer", and together
with the JPMSI Broker-Dealer, the "Broker-Dealers"), and the Auction Agent, an
administrative services agreement, dated as of April 1, 2004 (the
"Administrative Services Agreement"), among the Company, the Eligible Lender
Trustee, the Trustee and National Education Loan Network, Inc., as administrator
(the "Administrator"), an eligible lender trust agreement, dated as of April 1,
2004 (the "Eligible Lender Agreement"), between Xxxxx Fargo Bank, National
Association, as eligible lender trustee, and the Company, a custodian agreement,
dated April 1, 2004 (the "Custodian Agreement"), among the Company, the Eligible
Lender Trustee, the Trustee and Nelnet, as custodian, the partial assignment
agreement, dated as of April 1, 2004 (the "Partial Assignment Agreement"),
between the Company and the Trustee, a remarketing agreement, dated as of 29,
2004 (the "Remarketing Agreement"), among the Company, and X.X. Xxxxxx
Securities Inc. and Xxxxxx Xxxxxxx & Co. Incorporated, as the remarketing agents
(the "Remarketing Agents), an escrow reserve agreement, dated as of April 1,
2004 (the "Escrow Reserve Agreement"), between the Company and Xxxxx Fargo Bank,
National Association as escrow agent, the indemnity agreement, dated April 22,
2004 (the "Underwriter Indemnity Agreement"), among Nelnet and the Underwriters,
the indemnity agreement, dated April 22, 2004 (the "Initial Purchaser Indemnity
Agreement"), among Nelnet and the Initial Purchasers, the indemnity agreement,
dated April 29, 2004 (the "Remarketing Indemnity Agreement" and together with
the Underwriter Indemnity Agreement and the Initial Purchaser Indemnity
Agreement, the "Indemnity Agreements"), among Nelnet and the Remarketing Agents,
the LIBOR rate note interest rate cap derivative agreement (the "LIBOR Rate Note
Interest Rate Cap Derivative Agreement"), dated April 22, 2004, between the
Company and Xxxxxx Xxxxxxx Capital Services, Inc., the interest rate cap
derivative agreement, dated April 22, 2004 (together with the LIBOR Rate Note
Interest Rate Cap Derivative Agreement, the "Interest Rate Cap Derivative
Agreements"), between the Company and Xxxxxx Xxxxxxx Capital Services, Inc., the
Servicing Agreement and the Indenture shall collectively hereinafter be referred
to as the "Basic Documents."
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Indenture or the Prospectus.
The Company, upon the terms and conditions set forth herein, proposes to
sell to the Underwriters on the Closing Date (as hereinafter defined) the
aggregate principal amount of each class of the Offered Notes set forth next to
the name of each Underwriter on Schedule A hereto.
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The Company wishes to confirm as follows this Agreement with the
Underwriters in connection with the purchase and resale of the Offered Notes.
1. AGREEMENTS TO SELL, PURCHASE AND RESELL. (a) On the Closing Date, the
Company hereby agrees, subject to all the terms and conditions set forth herein,
to sell to each of the Underwriters and, upon the basis of the representations,
warranties and agreements of the Company herein contained and subject to all the
terms and conditions set forth herein, on the Closing Date each of the
Underwriters severally and not jointly agrees to purchase from the Company, such
principal amount of each Class of the Offered Notes to be sold on the Closing
Date at such respective purchase prices as are set forth next to the name of
such Underwriter on Schedule A hereto.
(b) It is understood that the Underwriters propose to offer the
Offered Notes for sale to the public (which may include selected
dealers) as set forth in the Prospectus.
2. DELIVERY OF THE OFFERED NOTES AND PAYMENT THEREFOR. The delivery to
the Underwriters of and payment for the Offered Notes shall be made at the
office of Xxxxx Xxxx LLP, Denver, Colorado, at 11:00 a.m., Denver time, on April
29, 2004 (the "Closing Date"). The place of the closing and the Closing Date may
be varied by agreement between the Underwriters and the Company.
On the Closing Date, the Offered 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 the Company and the Underwriters, the Offered
Notes will be evidenced by global securities in definitive form deposited with
the Trustee as the DTC Custodian, and will be registered in the name of Cede &
Co. as nominee of DTC and in the other cases, in such names and in such
Authorized 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 Offered Notes to be delivered to the Underwriters shall be made available to
the Underwriters in Denver, Colorado, for inspection and packaging not later
than 9:30 a.m., Denver time, on the business day immediately preceding the
Closing Date.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to each of the Underwriters that:
(a) A registration statement on Form S-3 (No. 333-104736),
including a prospectus and such amendments thereto as may have been
required to the date hereof, relating to the Offered 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 Offered 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
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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 required to be stated therein necessary
to make the statements therein 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 as of the Closing Date any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the foregoing does not
apply to statements in or omissions from the Registration Statement or
the Prospectus based upon written information furnished to the Company
by the Underwriters, specifically for use therein (it being understood
that the only such information is the information specified in Section
11 hereof). The Company and the Representatives acknowledge that no
Computational Materials (as defined in the No-Action Letter of May 20,
1994 issued by the Commission to Xxxxxx, Xxxxxxx 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) were
delivered by or on behalf of the Company to prospective purchasers of
the Offered Notes.
(c) The Commission has not issued and, to the best of the
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.
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(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 the Indenture will 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 Offered
Notes.
(f) The Offered Notes have been duly authorized by the Company
and the Offered 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 Offered 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 Nebraska
with full power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and as
conducted on the date hereof, and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure so
to register or qualify does not have a material adverse effect on the
condition (financial or other), business, prospects, properties, net
worth or results of operations of the Company.
(h) Other than as contemplated by this Agreement or as disclosed
in the Prospectus, there is no broker, finder or other party that is
entitled to receive from the Company or any of its affiliates any
brokerage or finder's fee or other fee or commission as a result of any
of the transactions contemplated by this Agreement.
(i) There are no legal or governmental proceedings pending or
threatened or, to the knowledge of the Company, contemplated against the
Company, or to which the Company or any of its properties is subject,
that are not disclosed in the Prospectus and which, if adversely
decided, would individually or in the aggregate have a material adverse
effect on the condition (financial or other), business, properties or
results of operations of the Company, or would materially and adversely
affect the ability of the Company to perform its obligations under this
Agreement and the other Basic Documents or otherwise materially affect
the issuance of the Offered Notes or the consummation of the
transactions contemplated hereby or by the Basic Documents.
(j) Neither the offer, sale or delivery of the Offered Notes by
the Company nor the execution, delivery or performance of this Agreement
or the Basic Documents by the Company, nor the consummation by the
Company of the transactions contemplated hereby or thereby (i) requires
or will require any consent, approval, authorization or other order of,
or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official
(except for compliance with the securities or Blue Sky laws of various
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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 the Company or (ii)
conflicts or will conflict with or constitutes or will constitute a
breach of, or a default under, in any material respect, any agreement,
indenture, lease or other instrument to which the Company is a party or
by which the Company or any of its respective properties may be bound,
or violates or will violate in any material respect any statute, law,
regulation or filing or judgment, injunction, order or decree applicable
to the Company or any of its respective properties, or will result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to the terms of any agreement
or instrument to which it is a party or by which it may be bound or to
which any of its properties is subject other than as contemplated by the
Basic Documents.
(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 statements set forth in the Prospectus under the caption
"Description of the Notes" insofar as they purport to constitute a
summary of the terms of the Notes, are accurate, complete and fair.
(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 Registered Owners, 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 will it become, subject to registration as an "investment
company" under the Investment Company Act of 1940, as amended.
(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 Closing Date.
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(p) Since the date of the Prospectus, no material adverse change
or any development involving a prospective material adverse change in,
or affecting particularly the business or properties of, the Company has
occurred.
4. CERTAIN AGREEMENTS OF THE COMPANY. The Company covenants and agrees
with the Underwriters as follows:
(a) The Company will prepare a supplement to the Prospectus
setting forth the amount of the Offered Notes covered thereby and the
terms thereof not otherwise specified in the Prospectus, the price at
which the Offered Notes are to be purchased by the Underwriters, either
the initial public offering price or the method by which the price at
which the Offered Notes are to be sold will be determined, the selling
concessions and reallowances, if any, and such other information as the
Underwriters and the Company deem appropriate in connection with the
offering of the Offered 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 Offered 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 or their counsel 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 Offered 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 Offered
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 any
material fact required to be stated therein necessary to make the
statements therein not misleading, or if it is necessary at any time to
amend or supplement the Prospectus to comply with the Act or the Rules
and Regulations, the Company promptly will notify each of the
Underwriters of such event and will promptly prepare and file with the
SEC, at its own expense, an amendment or supplement to such Prospectus
that will correct such statement or omission or an amendment that will
effect such compliance. Neither the Underwriters' consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 7
hereof.
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(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
Offered Notes and (ii) of any threatened lawsuit or proceeding, or the
commencement of any lawsuit or proceeding, to which the Company is a
party relating to the offering or sale of the Offered Notes.
(d) The Company will furnish to the Underwriters, without
charge, copies of the Registration Statement (including all exhibits and
documents incorporated by reference therein), the Prospectus, and all
amendments or supplements to such documents, in each case as soon as
reasonably available and in such quantities as the Underwriters may
reasonably request.
(e) The Company shall not at any time amend or supplement the
Registration Statement or Prospectus (i) prior to having furnished the
Underwriters with a copy of the proposed form of the amendment or
supplement and giving the Underwriters a reasonable opportunity to
review the same or (ii) in a manner to which the Underwriters or their
counsel shall reasonably object.
(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 Offered Notes for offering and sale by
the Underwriters and by dealers under the securities or Blue Sky laws of
such jurisdictions as the Underwriters may designate and will file such
consents to service of process or other documents necessary or
appropriate in order to effect such qualification or exemptions;
provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to
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 Offered
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 Offered
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 Offered Notes by the rating agency or agencies that
initially rate the Offered Notes are 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) 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 9 or 10 hereof) or if this Agreement shall
be terminated by the Underwriters because of any failure or refusal on
the part of the Company to comply with the terms or fulfill any of the
conditions of this Agreement, the Company agrees to reimburse the
Underwriters for all out-of-pocket expenses (including fees and expenses
of their counsel) reasonably incurred by it in connection herewith, but
without any further obligation on the part of the Company for loss of
profits or otherwise.
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(j) So long as any of the Offered Notes are outstanding, the
Company will furnish to the Underwriters (i) as soon as available, a
copy of each document relating to the Offered 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.
(k) The net proceeds from the sale of the Offered 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 Offered
Notes to facilitate the sale or resale of the Offered Notes.
(m) For a period from the date of this Agreement until the
retirement of the Offered Notes, the Company will deliver to you the
annual statements of compliance and the annual independent certified
public accountants' reports furnished to the Trustee or the Company
pursuant to the Servicing Agreement as soon as such statements and
reports are furnished to the Trustee or the Company.
(n) On or before each date that Financed Eligible Loans are
pledged under the Indenture, the Company shall xxxx its records relating
to the Financed Eligible Loans and shall cause the Servicer to xxxx its
computer records relating to the Financed Eligible Loans to show the
pledge of such Financed Eligible Loans by the Company to the Trustee,
and the Company shall not take, or permit any other person to take, any
action inconsistent with the security interest of the Trustee in the
Financed Eligible Loans, other than as permitted by the Basic Documents.
(o) For the period beginning on the date of this Agreement and
ending 90 days after the Closing Date, none of the Company and any
entity affiliated, directly or indirectly, with the Company will,
without prior written notice to the Underwriters, offer to sell or sell
notes (other than the Notes) collateralized by FFELP Loans; 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 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 Act, copies of an amended Prospectus containing all
information so omitted.
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(q) As soon as practicable, but not later than 16 months after
the date of this Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least
12 months beginning after the later of (i) the effective date of the
Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of this Agreement and (iii) the date of the
Company's most recent Annual Report or Form 10-K filed with the
Commission prior to the date of this Agreement, which will satisfy the
provisions of Section 11(a) of the Act.
5. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITERS. Each of the
Underwriters, severally and not jointly, hereby represents and warrants to and
agrees with the Company, severally and not jointly, that (A) it has not offered
or sold and will not offer or sell any Offered Notes to persons in the United
Kingdom prior to the expiration of the period of six months from the issue date
of the Offered Notes except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their business or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1965, as
amended; (B) it has only communicated or caused to be communicated any
invitation or inducement to engage in investment activity (within the meaning of
section 21 if the Financial Services Markets Act 2000 (the "FSMA")), received by
it in connection with the issue or sale of the Offered Notes in circumstances in
which section 21(1) of the FSMA does not apply to the Company; and (C) it has
complied, and will comply, in all material respects, with all applicable
provisions of the FSMA with respect to anything done by it in relation to the
Offered Notes in, from or otherwise involving the United Kingdom. The Company
represents and agrees that it has been informed of the existence of the FSA
stabilizing guidance contained in Section MAR 2, Xxx 2G of the FSA Handbook (the
Handbook of rules and guidance issued by the Financial Services Authority).
6. 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 Securities Act or Section 20 of
the Securities 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, or arising out of or based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or arising
out of any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or supplement
thereto) or arising out of or based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, 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 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
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Company by such Underwriter expressly for use therein, it being
understood that the only such information furnished by any Underwriter
consists of the information described as such in Section 11 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 Offered Notes by an
Underwriter to any person (to the extent such sale was the initial
resale by such Underwriter) if the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained
in the preliminary prospectus was corrected in the final Prospectus and
such Underwriter sold Offered Notes to that person without sending or
giving, at or prior to the written confirmation of such sale, a copy of
the final Prospectus (as then amended or supplemented but excluding
documents incorporated by reference therein) if the Company has
previously furnished sufficient copies thereof to such Underwriter at a
time reasonably prior to the date such Offered Notes are sold to such
person. The foregoing indemnity agreement shall be in addition to any
liability that the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against
an Underwriter or any person controlling an Underwriter in respect of
which indemnity may be sought against the Company, such Underwriter or
such controlling person shall promptly notify the parties against whom
indemnification is being sought (the "indemnifying parties"), but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party under Sections
6(a) and 6(c) hereof, except to the extent that the indemnifying party
is materially prejudiced by such omission, and in no event shall the
omission so to notify relieve the Company from any liability which it
may otherwise have. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party). The applicable Underwriter or any such controlling
person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of
such Underwriter or such controlling person unless (i) the indemnifying
parties have agreed in writing to pay such fees and expenses, (ii) the
indemnifying parties have failed to assume the defense and employ
counsel, or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both the
Underwriter or such controlling person and the indemnifying parties and
the Underwriter or such controlling person shall have been advised by
its counsel that there may be one or more legal defenses available to it
which are different from or additional to or in conflict with those
available to the indemnifying parties and in the reasonable judgment of
such counsel it is advisable for the Underwriter or such controlling
person to employ separate counsel (in which case the indemnifying party
shall not have the right to assume the defense of such action, suit or
proceeding on behalf of the Underwriter or such controlling person). It
11
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.
(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 Securities Act or Section 20 of the Securities Exchange Act, to
the same extent as the indemnity from the Company to the Underwriters
set forth in paragraph (a) hereof, but only with respect to information
relating to such Underwriter furnished in writing by such Underwriter
expressly for use in the Registration Statement, the Prospectus or any
amendment or supplement thereto or any related preliminary prospectus
therein or, it being understood that the only such information furnished
by any Underwriter consists of the information described as such in
Section 11 of this Agreement. If any action, suit or proceeding shall be
brought against the Company, any of its directors or officers, or any
such controlling person based on the Registration Statement, the
Prospectus or any amendment or supplement thereto or any related
preliminary prospectus therein and in respect of which indemnity may be
sought against an Underwriter pursuant to this paragraph (c), such
Underwriter shall have the rights and duties given to the Company by
paragraph (b) above (except that if the Company shall have assumed the
defense thereof the Underwriter shall have the option to assume such
defense but shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees and
expenses of such counsel shall be at such Underwriter's expense), and
the Company, its directors and officers, and any such controlling person
shall have the rights and duties given to the Underwriters by paragraph
(b) above. The foregoing indemnity agreement shall be in addition to any
liability which the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless 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
12
received by the Company on the one hand and the applicable Underwriter
on the other hand from the offering of the Offered 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 Offered 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 6 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 6, no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total underwriting discounts and commissions
received by such Underwriter with respect to the Offered Notes
underwritten by such Underwriter exceed the sum of the amount of any
damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission and the amount of any damages such Underwriter has been
required to pay under the Underwriter Indemnity Agreement. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities 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 and
not joint.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or
contribution under this Section 6 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 6 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
13
respective directors or officers, (ii) acceptance of any Offered 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 6.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Offered Notes hereunder on the Closing Date
are subject to the following conditions precedent:
(a) All actions required to be taken and all filings required to
be made by the Company under the Securities Act prior to the initial
sale of the Offered 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 or event
involving a prospective change, in or affecting the condition (financial
or other), business, properties, net worth, or results of operations of
the Company or the Servicer not contemplated by the Registration
Statement, which in the opinion of the Underwriters, would materially
adversely affect the market for the Offered Notes, (ii) the withdrawal
or any downgrading in the long term counterparty rating of Nelnet below
"BBB+" by S&P, or any public announcement that such organization has
under surveillance or review its long term counterparty rating of Nelnet
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating), (iii) any downgrading in the rating of any debt securities of
trusts or trust estates sponsored by the Company, the Servicer or any of
their affiliates by any nationally recognized statistical rating
organization or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of trusts
sponsored by the Company or the Servicer (other than an announcement
with positive implications of a possible upgrading, and no implication
of a possible downgrading, of such rating), or (iv) any event or
development which makes any statement made in the Registration Statement
or Prospectus untrue or which, in the opinion of the Company and its
counsel or the Underwriters and their counsel, requires the filing of
any amendment to or change in the Registration Statement or Prospectus
in order to state a material fact required by any law to be stated
therein or necessary in order to make the statements therein not
misleading, if amending or supplementing the Registration Statement or
Prospectus to reflect such event or development would, in the opinion of
the Underwriters, materially adversely affect the market for the Offered
Notes.
(c) You shall have received an opinion addressed to you of Xxxxx
Xxxx LLP, in its capacity as counsel to the Company, dated the Closing
Date, in form and substance satisfactory to you and your counsel with
respect to the Indenture, Custodian Agreement, this Agreement, the
Servicing Agreement, the Auction Agency Agreement and the Administrative
Services Agreement and to the validity of the Offered Notes and such
related matters as you shall reasonably request. In addition, you shall
14
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
Transferor 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 Offered Notes for federal tax purposes.
(f) You shall have received an opinion addressed to you of XxXxx
Xxxxxx 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
Ballard, Spahr, Xxxxxxx & Xxxxxxxxx, 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 Registration Statement or
Prospectus and certain matters arising under the Securities Act, Trust
Indenture Act of 1939, as amended, and the Investment Company Act of
1940, as amended.
(h) You shall have received opinions addressed to you of Perry,
Guthery, Xxxxx & Xxxxxxxx, P.C. in its capacity as counsel to Nelnet,
the Administrator and the Company, each dated the Closing Date and
satisfactory in form and substance to you and your counsel, to the
effect that:
(i) Each of Nelnet, the Administrator and the Company is
a corporation, in good standing under the laws of their
respective states of incorporation; each having the full power
and authority (corporate and other) to own its properties and
conduct its business, as presently conducted by it, and to enter
into and perform its obligations under each of the Basic
Documents to which it is a party.
(ii) Each of the Servicing Agreement, the Partial
Assignment Agreement, the Loan Acquisition Certificate, the
Administrative Services Agreement, the Indenture, the Initial
Auction Agency Agreement, the Custodian Agreement, the Eligible
Lender Agreement, the Remarketing Agreement, the Escrow Reserve
Agreement, the Interest Rate Cap Derivative Agreements and this
15
Agreement have been duly authorized, executed and delivered by
the Company, the Administrative Services Agreement has been duly
authorized and executed by the Administrator, and each of the
Servicing Agreement, the Custodian Agreement and each Indemnity
Agreement has been duly authorized, executed and delivered by
Nelnet and each such agreement is the legal, valid and binding
obligation of the Company, the Administrator and Nelnet, as the
case may be, enforceable against the Company, the Administrator
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) None of the execution and delivery by the
Administrator of the Administrative Services Agreement, the
execution and delivery by Nelnet of the Servicing Agreement, the
Custodian Agreement or any Indemnity Agreement, or the execution
and delivery by the Company of the Servicing Agreement, the Loan
Acquisition Certificate, the Partial Assignment Agreement, the
Administrative Services Agreement, the Indenture, the Initial
Auction Agency Agreement, the Custodian Agreement, the Eligible
Lender Agreement, the Remarketing Agreement, the Escrow Reserve
Agreement, the Interest Rate Cap Derivative Agreements or this
Agreement, or the consummation by the Company, the Administrator
or Nelnet of the transactions contemplated therein nor the
fulfillment of the terms thereof by the Company, the
Administrator or Nelnet 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 the Company, the
Administrator or Nelnet or of any indenture or other agreement
or instrument to which the Company, the Administrator or Nelnet
is a party or by which the Company, the Administrator or Nelnet
is bound, or result in a violation of or contravene the terms of
any statute, order or regulation applicable to the Company, the
Administrator or Nelnet of any court, regulatory body,
administrative agency or governmental body having jurisdiction
over the Company, the Administrator or Nelnet.
(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 the
Company, the Administrator or Nelnet before or by any
governmental authority that might materially and adversely
affect the performance by the Company, the Administrator or
Nelnet of its obligations under, or the validity or
enforceability of, any Basic Documents to which it is a party.
(v) Nothing has come to such counsel's attention that
would lead such counsel to believe that the representations and
warranties of the Administrator contained in the Administrative
16
Services Agreement, the representations and warranties of Nelnet
contained in the Servicing Agreement, the Custodian Agreement or
any Indemnity Agreement or the representations and warranties of
the Company contained in the Loan Acquisition Certificate, the
Partial Assignment Agreement, the Servicing Agreement, the
Administrative Services Agreement, the Indenture, the Initial
Auction Agency Agreement, the Custodian Agreement, the Eligible
Lender Agreement, the Remarketing Agreement, the Escrow Reserve
Agreement, the Interest Rate Cap Derivative Agreements or this
Agreement are other than as stated therein.
(vi) No authorization, approval, or other action by, and
no notice to or filing with, any governmental authority or
regulatory body is required (a) for the due execution, delivery
and performance by the Administrator of the Administrative
Services Agreement, (b) for the due execution, delivery and
performance by Nelnet of the Servicing Agreement, the Custodian
Agreement or any Indemnity Agreement, (c) for the due execution,
delivery and performance by the Company of the Loan Acquisition
Certificate, the Partial Assignment Agreement, the Servicing
Agreement, the Administrative Services Agreement, the Indenture,
the Initial Auction Agency Agreement, the Custodian Agreement,
the Eligible Lender Agreement, the Remarketing Agreement, the
Escrow Reserve Agreement, the Interest Rate Cap Derivative
Agreements or this Agreement or (d) for the perfection of the
Trustee's interest in the Financed Eligible Loans pledged under
the Indenture or the exercise by the Trustee of its rights and
remedies under the Indenture, including specifically the filings
of any Uniform Commercial Code financing statements, except for
the execution and delivery of ------ the Guarantee Agreements.
(vii) As of the date specified in a schedule to such
opinion, there were no (a) UCC financing statements naming the
Transferor as debtor or seller and covering any Student Loans to
be transferred under the Loan Acquisition Certificate or any
interest therein or (b) notices of the filing of any federal tax
lien (filed pursuant to Section 6323 of the Internal Revenue
Code) or lien of the Pension Benefit Guaranty Corporation (filed
pursuant to Section 4068 of ERISA) covering any Student Loan to
be transferred under the Loan Acquisition Certificate or any
interest therein, listed in the available records in the
respective offices set forth in such schedule opposite each such
date (which are all of the offices that are prescribed under
either the internal law of the conflict of law rules of the
Nebraska UCC as the offices in which filings should be made to
perfect security interests in Student Loans), except as set
forth in such schedule.
(viii) As of the date of such opinion and assuming that
the Trustee is an eligible lender as that term is defined in 20
U.S.C. ss.1085(d)(1) of the Higher Education Act of 1965, as
amended (the "Higher Education Act"), 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
Higher Education Act related to the Student Loans transferred
under the Loan Acquisition Certificate, subject to the terms and
conditions of the Guarantee Agreements and the Higher Education
Act.
17
(i) You shall have received an opinion addressed to Nelnet, that
can be relied upon by Nelnet's affiliates and the Underwriters, acting
in their capacity as underwriters, of Xxxx Xxxxxx, in its capacity as
special counsel to the Company, with respect to certain matters arising
under the Higher Education Act relating to Special Allowance Payments,
in form and substance satisfactory to you and your counsel.
(j) You shall have received an opinion addressed to you of
counsel to the Trustee, dated the Closing Date and in form and substance
satisfactory to you and your counsel.
(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 the Company and Nelnet in which
such officers shall state that, to the best of their knowledge after
reasonable investigation, (i) the representations and warranties of the
Company or Nelnet, as the case may be, contained in the respective Basic
Documents to which it is a party, are true and correct in all material
respects, that each of the Company and Nelnet 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 Nelnet has reviewed the information pertaining to it in the
Prospectus, and the Company has reviewed the Prospectus, and as
applicable, the information therein is fair and accurate in all material
respects, and (iii) since the date set forth in such certificate, except
as may be disclosed in the Prospectus, no material adverse change or any
development involving a prospective material adverse change, in or
affecting particularly the business or properties of the Company or
Nelnet, as applicable, 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 State of
Nebraska reflecting the grant of the security interest by the Company in
the Financed Eligible Loans and the proceeds thereof to the Trustee.
(m) You shall have received a certificate addressed to you dated
the Closing Date from a responsible officer acceptable to you of the
Trustee and the Eligible Lender 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 LLP, 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.
(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
18
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 Section 7(k) 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 Underwriters), in lieu of or in
addition to the legal opinions referred to in this Section 7, the right
to rely on opinions provided by such counsel and all other counsel under
the terms of the Basic Documents.
(r) Each class of the Class A Notes shall be rated "AAA", "AAA"
and "Aaa", respectively, by Fitch, Inc. ("Fitch"), Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies ("S&P"), and
Xxxxx'x Investors Service, Inc. ("Moody's"), each class of the Class B
Notes shall be rated "AA", "AA-" 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.
(s) You shall have received evidence satisfactory to you of the
completion of all actions necessary to effect the transfer of the
Financed Eligible Loans as described in the Prospectus and the
recordation thereof on the Company's and the Servicer's computer
systems.
(t) You shall have received certificates addressed to you dated
the Closing Date from officers of the Company and legal opinions
addressing such additional matters as you may reasonably request in form
and substance satisfactory to you and your counsel.
(u) You shall have received a copy of each Indemnity Agreement
executed on behalf of Nelnet in form and substance satisfactory to you
and your counsel.
(v) You shall have received certificates addressed to you dated
the Closing Date of the Colorado Student Loan Program, Tennessee Student
Assistance Corporation and National Student Loan Program to the effect
that the information in the Prospectus with respect to such entity is
true and correct and is fair and accurate in all material respects.
(w) On the Closing Date, the aggregate principal amount of the
Offered Notes as specified in Schedule A to this Agreement shall have
been sold by the Company to the Underwriters, and the aggregate
principal amount of the Reset Rate Notes as specified in Schedule A to
the purchase agreement, dated as of the date hereof, among the Company
and the initial purchasers listed on Schedule A thereto (referred to
therein as the "Initial Purchasers"), shall have been sold by the
Company to the Initial Purchasers.
19
(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 Offered Notes.
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.
8. 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, any
preliminary 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, any
preliminary prospectus and all amendments or supplements to, and preliminary
versions of, any of them as may be reasonably requested for use in connection
with the offering and sale of the Offered Notes; (iii) the preparation,
printing, authentication, issuance and delivery of definitive certificates for
the Offered 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 Offered Notes; (v) the qualification of the Indenture under
the Trust Indenture Act and the qualification of the Offered Notes for offer and
sale under the securities or Blue Sky laws of the several states as provided in
Section 4(f) 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);
(vi) the fees and disbursements of (A) the Company's counsel, (B) the Trustee
and its counsel, (C) the Eligible Lender Trustee and its counsel, (D) the
Securities Depository, in connection with the book-entry registration of the
Offered Notes and (E) KPMG LLP, accountants for the Company and issuer of the
Comfort Letter; and (vii) the fees charged by S&P, Fitch and Moody's for rating
the Offered Notes.
9. EFFECTIVE DATE OF AGREEMENT. This Agreement shall be deemed effective
as of the date first above written upon the execution and delivery hereof by all
the parties hereto. Until such time as this Agreement shall have become
effective, it may be terminated by the Company, by notifying each of the
Underwriters, or by the Underwriters, by notifying the Company.
Any notice under this Section 9 may be given by telecopy or telephone
but shall be subsequently confirmed by letter.
10. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination prior to the Closing Date, in the absolute discretion of the
Underwriters, without liability on the part of the Underwriters to the Company,
by notice to the Company, if prior to 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
20
by either Federal or state authorities, or (iii) there shall have occurred any
outbreak or escalation of hostilities or other international or domestic
calamity, crisis or change in political, financial or economic conditions, the
effect of which is such as to make it, in the judgment of the Underwriters,
impracticable or inadvisable to commence or continue the offering of the Offered
Notes on the terms set forth in the Prospectus, as applicable, or to enforce
contracts for the resale of the Offered 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.
11. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth
in (i) the fourth paragraph, and (ii) the third sentence of the eighth paragraph
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 6 hereof.
12. DEFAULT BY ONE OF THE UNDERWRITERS. If any of the Underwriters shall
fail on the Closing Date to purchase the Offered Notes which it is obligated to
purchase hereunder (the "Defaulted Notes"), the remaining Underwriters which are
obligated to purchase that class of Offered Notes (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 remaining Defaulted Notes of such class upon the terms herein set
forth; if, however, any of such 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 any such
Non-Defaulting Underwriter, the Underwriters which are not obligated to purchase
the related class of Offered Notes or the Company, except the expenses to be
borne by the Company as provided in Sections 4(i) and 8 hereof and the indemnity
and contribution agreements in Section 6 hereof .
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.
13. SURVIVAL. The respective indemnities, agreements, representations,
warranties and other statements of the Company or its officers (including,
without limitation, the provisions of Section 4(i)) 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 (i) delivery of and payment for the Offered Notes, or (ii)
termination of this Agreement
14. MISCELLANEOUS. Except as otherwise provided in Sections 6, 9 and 10
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at 000 Xxxxx 00xx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx, and (ii) if to
the Underwriters, to the address of the respective Underwriter set forth above
with a copy to XxXxx Xxxxxx LLP, 0 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxx X. Xxxxxxxx.
21
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company, their respective directors, officers, managers,
trustees and controlling persons referred to in Section 6 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
Offered Notes in his status as such purchaser.
15. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York without giving
effect to the choice of laws or conflict of laws principles thereof.
The Company hereby submits to the non-exclusive jurisdiction of the
federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof or
thereof shall have been executed and delivered on behalf of each party hereto.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriters.
Very truly yours,
NELNET EDUCATION LOAN FUNDING, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
Confirmed as of the date first above mentioned.
22
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
Acting on behalf of themselves and as the Representatives of the
Underwriters
23
SCHEDULE A
-------------- ------------ ------------ ------------ ------------ ------------ ------- ------------ -------- --------- ------------
Xxxxxx Citigroup
X.X. Xxxxxx Xxxxxxx & Barclays Global XX Xxxxx Price Underwriters
Securities Co. Capital Markets Securities to Fees & Interest Final Proceeds to
Offered Notes Inc. Incorporated Inc. Inc. Corporation Public Commissions Rate* Maturity the Company
-------------- ------------ ------------ ------------ ------------ ------------ ------- ------------ -------- --------- ------------
3-month
LIBOR,
plus November
Class A-1 $58,450,000 $58,450,000 $16,700,000 $16,700,000 $16,700,000 100% 0.18% 0.00% 25, 2009 $167,000,000
-------------- ------------ ------------ ------------ ------------ ------------ ------- ------------ -------- --------- ------------
3-month
LIBOR,
plus November
Class A-2 $62,300,000 $62,300,000 $17,800,000 $17,800,000 $17,800,000 100% 0.20% 0.03% 25, 2013 $178,000,000
-------------- ------------ ------------ ------------ ------------ ------------ ------- ------------ -------- --------- ------------
3-month
LIBOR,
plus November
Class A-3 $36,050,000 $36,050,000 $10,300,000 $10,300,000 $10,300,000 100% 0.215% 0.10% 25, 2015 $103,000,000
-------------- ------------ ------------ ------------ ------------ ------------ ------- ------------ -------- --------- ------------
3-month
LIBOR,
plus August
Class A-4 $71,050,000 $71,050,000 $20,300,000 $20,300,000 $20,300,000 100% 0.25% 0.14% 26, 2019 $203,000,000
-------------- ------------ ------------ ------------ ------------ ------------ ------- ------------ -------- --------- ------------
February
Class A-5b $68,050,000 $0 $0 $0 $0 100% 0.15% Auction 25, 2039 $68,050,000
-------------- ------------ ------------ ------------ ------------ ------------ ------- ------------ -------- --------- ------------
February
Class A-5c $0 $68,050,000 $0 $0 $0 100% 0.15% Auction 25, 2039 $68,050,000
-------------- ------------ ------------ ------------ ------------ ------------ ------- ------------ -------- --------- ------------
February
Class B-1 $15,300,000 $0 $0 $0 $0 100% 0.25% Auction 25, 2039 $15,300,000
-------------- ------------ ------------ ------------ ------------ ------------ ------- ------------ -------- --------- ------------
February
Class B-2 $0 $15,300,000 $0 $0 $0 100% 0.25% Auction 25, 2039 $15,300,000
-------------- ------------ ------------ ------------ ------------ ------------ ------- ------------ -------- --------- ------------
