EXHIBIT 1.1
EXECUTION COPY
NELNET STUDENT LOAN TRUST 2002-2
$1,200,000,000
STUDENT LOAN ASSET-BACKED NOTES
UNDERWRITING AGREEMENT
September 26, 2002
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Securitized Products Group
Ladies and Gentlemen:
Nelnet Student Loan Funding, LLC, a Delaware limited liability company
("Nelnet Funding") proposes to cause Nelnet Student Loan Trust 2002-2, a
Delaware statutory trust (the "Company"), to sell to X.X. Xxxxxx Securities Inc.
and Xxxxxx Xxxxxxx & Co. Incorporated (the "Representatives") and the other
underwriters listed on Schedule A hereto (each an "Underwriter" and collectively
with the Representatives, the "Underwriters"), pursuant to the terms of this
Underwriting Agreement, $1,200,000,000 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 on behalf of
the Company. The Notes will be issued under an Indenture of Trust dated as of
September 1, 2002 (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 Master
Servicing Agreement dated as of September 1, 2002 (the "Servicing Agreement"),
among Nelnet, as master servicer, Nelnet, as administrator, Nelnet Funding and
the Company. Nelnet has entered into a loan subservicing agreement with Nelnet
Loan Services, Inc. ("NLS") dated as of September 1, 2002 (the "Subservicing
Agreement") pursuant to which NLS will act as subservicer with respect to all of
the Financed Eligible Loans.
This Agreement, the Loan Purchase Agreement, dated as of September 1,
2002 between NELNET Student Loan Corporation-2 ("NELNET-2") and Nelnet Funding
(along with the related Loan Transfer Addendum, the "NELNET-2 Purchase
Agreement"), the Loan Purchase Agreement dated as of Setpember 1, 2002 between
Nelnet Funding and the Company (along with the related Loan Transfer Addendum,
the "Nelnet Trust Purchase Agreement" and, together with the NELNET-2 Purchase
Agreement, the "Purchase Agreements"), the Trust Agreement, dated as of
September 1, 2002, among Wilmington Trust Company, as Delaware trustee ("the
Delaware Trustee") and Nelnet Funding, as initial certificateholder and sponsor
(the "Trust Agreement"), the Administration Agreement, dated as of September 1,
2002, among the Company, the Delaware Trustee, the Trustee and Nelnet, as
administrator (the "Administration Agreement"), the Eligible Lender Trust
Agreement, dated as of September 1, 2002, between Zions First National Bank (the
"Eligible Lender Trustee") and Nelnet Funding (the "Nelnet Funding Eligible
Lender Agreement"), the Eligible Lender Trust Agreement, dated as of September
1, 2002, between the Eligible Lender Trustee and the Company (the "Company
Eligible Lender Agreement" and together with the Nelnet Funding Eligible Lender
Agreement, the "Eligible Lender Agreements"), the Custodian Agreement, dated
September 1, 2002, among the Company, the Trustee and NLS, as custodian (the
"Custodian Agreement"), the Servicing Agreement, the Subservicing Agreement and
the Indenture shall collectively hereinafter be referred to as the "Basic
Documents."
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Indenture or the Prospectus.
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 October 8, 2002 (the
"Closing Date"). The place of such closing and the Closing Date may be varied by
agreement between the Representatives 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 Representatives, or such other form of
2
payment as to which the parties may agree. Unless otherwise agreed to by Nelnet
Funding and the Representatives, 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.
3. REPRESENTATIONS AND WARRANTIES OF NELNET FUNDING. Nelnet Funding
represents and warrants to each of the Underwriters that:
(a) A registration statement on Form S-3 (No 333-82280),
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.
3
(c) The Commission has not issued and, to the best knowledge of
the Company, is not threatening to issue any order preventing or
suspending the use of the Registration Statement.
(d) As of the Closing Date, each consent, approval,
authorization or order of, or filing with, any court or governmental
agency or body which is required to be obtained or made by 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 Nelnet
Funding 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.
4
(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, 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.
(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 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.
5
(l) Nelnet Funding's assignment and delivery of Financed
Eligible Loans to the order of the Trustee on behalf of the Company
pursuant to the Nelnet Trust Purchase Agreement 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.
(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.
(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.
(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, Nelnet Funding
has occurred.
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.
6
(b) If, at any time when the Prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply
with the Act or the Rules and Regulations, Nelnet Funding promptly will
notify each of the Representatives 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
Representatives' consent to, nor the Representatives' 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 Representatives
(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 Representatives, 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
Representatives 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.
7
(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.
(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 Representatives terminating this
Agreement pursuant to Section 8 or Section 9 hereof) or if this
Agreement shall be terminated by the Representatives 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 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 Financed Eligible Loans, 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.
8
(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 through the Representatives 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
9
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 at a time reasonably prior to the date such Notes are sold to
such person. The foregoing indemnity agreement shall be in addition to any
liability which Nelnet Funding 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 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 under
Sections 5(a) and 5(c) hereof, except to the extent that the
indemnifying party is materially prejudiced by such omission, and in no
event shall the omission so to notify relieve Nelnet Funding from any
liability which it may otherwise have. In case any such action is
brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party). The applicable Underwriter or any
such controlling person shall have the right to employ separate counsel
in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person unless (i) the
indemnifying parties have agreed in writing to pay such fees and
expenses, (ii) the indemnifying parties have failed to assume the
defense and employ counsel, or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include
both the Underwriter or such controlling person and the indemnifying
parties and the Underwriter or such controlling person shall have been
advised by its counsel that there may be one or more legal defenses
available to it which are different from or additional to or in conflict
with those available to the indemnifying parties and in the reasonable
judgment of such counsel it is advisable for the Underwriter or such
controlling person to employ separate counsel (in which case the
indemnifying party shall not have the right to assume the defense of
such action, suit or proceeding on behalf of the Underwriter or such
controlling person). It is understood, however, that the indemnifying
parties shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions,
suits or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any
local counsel) at any 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,
10
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 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 such Underwriter furnished in writing by such Underwriter
through the Representatives 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 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 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
11
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.
(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 underwriting discounts and commissions
received by such Underwriter with respect to the Notes underwritten by
such Underwriter exceed the sum of the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission and the
amount of any damages such Underwriter has been required to pay under
the Indemnity Agreement dated as of the date hereof among the
Representatives, on behalf of themselves and the other Underwriters, and
Nelnet Loan Services, Inc. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
paragraph (e) to contribute are several in proportion to their
respective underwriting obligations.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or
contribution under this Section 5 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section 5 and the representations and
warranties of 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.
12
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.
(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 Servicer, the Seller or NLS not contemplated by the
Registration Statement, which in the opinion of the Representatives,
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, the Servicer, the Seller 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, the
Servicer, the Seller 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 Representatives,
materially adversely affect the market for the Notes.
(c) You shall have received an opinion addressed to you of Xxxxx
Xxxx LLP, in its capacity as counsel to the Company, dated the Closing
Date, in form and substance satisfactory to you and your counsel with
respect to the Nelnet Trust Purchase Agreement, the Servicing Agreement,
the Indenture, the Company Eligible Lender Agreement and this Agreement
and to the validity of the Notes and such related matters as you shall
reasonably request. In addition, you shall have received an opinion
addressed to you of Xxxxx Xxxx LLP, in its capacity as counsel for the
Company, in form and substance satisfactory to you and your counsel,
concerning "true sale," "non- consolidation" and "first perfected
security interest" and certain other issues with respect to the transfer
of the Financed Eligible Loans from the Seller to Nelnet Funding, from
Nelnet Funding to the Company and from the Company to the Trustee. You
also shall have received an opinion addressed to you of Xxxxx Xxxx LLP,
in its capacity as counsel to NELNET-2, dated the Closing Date, in form
and substance satisfactory to you and your counsel, stating that the
extraordinary optional redemption by NELNET-2 of certain series of its
student loan auction rate notes with the proceeds received by NELNET-2
from the sale of the Financed Eligible Loans to Nelnet Funding (the
"Redemption") is authorized and permitted pursuant to the terms of the
indenture and indenture supplements under which such notes were issued.
13
(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.
(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 & Xxxxxxxxx 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. You also shall have received an opinion
addressed to you of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll LLP, in its
capacity as counsel for NELNET-2, dated the Closing Date, in form and
substance satisfactory to you and your counsel, stating that the
Redemption (as defined in Section 6(c) above) by NELNET-2 is consistent
with the disclosure concerning extraordinary optional redemption
contained in the prospectus supplement and prospectus for each series of
notes being redeemed.
(h) You shall have received opinions addressed to you of Perry,
Guthery, Xxxxx & Xxxxxxxx, P.C. in their capacity as counsel to Nelnet,
as servicer and administrator, NLS, Nelnet Funding and the Seller, each
dated the Closing Date and satisfactory in form and substance to you and
your counsel, to the effect that:
(i) Each of Nelnet, NLS and the Seller is a corporation,
and Nelnet Funding is a limited liability company, in good
standing under the laws of their respective states of
incorporation or organization; 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.
14
(ii) The NELNET-2 Purchase Agreement has been duly
authorized, executed and delivered by the Seller, the Purchase
Agreements, the Trust Agreement, the Servicing Agreement, the
Nelnet Funding Eligible Lender Agreement and this Agreement have
been duly authorized, executed and delivered by Nelnet Funding,
the Administration Agreement, the Servicing Agreement and the
Subservicing Agreement have been duly authorized, executed and
delivered by Nelnet and the Subservicing Agreement and the
Custodian Agreement have been duly authorized, executed and
delivered by NLS and each such agreement is the legal, valid and
binding obligations of the Seller, Nelnet Funding, Nelnet and
NLS, as the case may be, enforceable against the Seller, Nelnet
Funding, Nelnet and NLS, as the case may be, in accordance with
their respective terms, except (x) the enforceability thereof
may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or 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 Administration Agreement, the Servicing Agreement or the
Subservicing Agreement, or the execution and delivery by Nelnet
Funding of the Purchase Agreements, the Trust Agreement, the
Servicing Agreement, the Nelnet Funding Eligible Lender
Agreement or this Agreement, or the execution by the Seller of
the NELNET-2 Purchase Agreement, or the execution and delivery
by NLS of the Subservicing Agreement or the Custodian Agreement,
nor the consummation by Nelnet, Nelnet Funding, the Seller or
NLS of the transactions contemplated therein nor the fulfillment
of the terms thereof by Nelnet, Nelnet Funding, the Seller or
NLS will conflict with, result in a breach, violation or
acceleration of, or constitute a default under, any term or
provision of the by-laws or limited liability company agreement,
as the case may be, of Nelnet, Nelnet Funding, the Seller or NLS
or of any indenture or other agreement or instrument to which
Nelnet, Nelnet Funding, the Seller or NLS is a party or by which
Nelnet, Nelnet Funding, the Seller or NLS is bound, or result in
a violation of or contravene the terms of any statute, order or
regulation applicable to Nelnet, Nelnet Funding, the Seller or
NLS of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Nelnet, Nelnet
Funding, the Seller or NLS.
(iv) There are no actions, proceedings or investigations
pending or, to the best of such counsel's knowledge after due
inquiry and reasonable investigation, threatened against Nelnet,
Nelnet Funding, the Seller or NLS before or by any governmental
authority that might materially and adversely affect the
performance by Nelnet, Nelnet Funding, the Seller or NLS of its
obligations under, or the validity or enforceability of, any
Basic Documents to which it is a party.
15
(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 Administration Agreement,
the Servicing Agreement, or the Subservicing Agreement, or the
representations and warranties of Nelnet Funding in the Purchase
Agreements, the Trust Agreement, the Servicing Agreement, the
Nelnet Funding Eligible Lender Trust Agreement or this Agreement
or the representations and warranties of the Seller contained in
the NELNET-2 Purchase Agreement or the representations and
warranties of NLS contained in the Subservicing Agreement or the
Custodian Agreement are other than as stated therein.
(vi) No authorization, approval, or other action by, and
no notice to or filing with, any governmental authority or
regulatory body is required (a) for the due execution, delivery
and performance by Nelnet of the Administration Agreement, the
Servicing Agreement or the Subservicing Agreement, (b) for the
due execution, delivery and performance by Nelnet Funding of the
Purchase Agreements, the Trust Agreement, the Servicing
Agreement, the Nelnet Funding Eligible Lender Trust Agreement or
this Agreement, (c) for the due execution, delivery and
performance by the Seller of the NELNET-2 Purchase Agreement,
(d) for the due execution, delivery and performance by NLS of
the Subservicing Agreement or the Custodian Agreement or (e) 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 Nelnet Trust Purchase Agreement 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
Nelnet Trust Purchase Agreement enforceable against creditors
of, and purchasers from, the Seller.
(viii) As of the date specified in a schedule to such
opinion, there were no (a) UCC financing statements naming the
Seller as debtor or seller and covering any Student Loans to be
sold under the Purchase Agreements 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
Purchase Agreements or interest therein, listed in the available
records in the respective offices set forth in such schedule
opposite each such date (which are all of the offices that are
prescribed under either the internal law of the conflict of law
rules of the Nebraska UCC as the offices in which filings should
be made to perfect security interests in Student Loans), except
as set forth in such schedule.
(ix) As of the date of such opinion, by executing the
Guarantee Agreements and upon execution and delivery of the
instruments of transfer described in the Purchase Agreements and
notification of the Guarantors and borrowers of the transfer
contemplated thereby, and assuming that the Trustee is an
eligible lender as that term is defined in 20
16
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 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, and as Delaware counsel to 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 Agreement, the Eligible Lender Agreements, the
Administration Agreement and each Guarantee Agreement.
(iii) The execution and delivery of each of the
Indenture, the Custodian Agreement, the Eligible Lender
Agreements, the Administration Agreement and each Guarantee
Agreement, and the performance by the Trustee of its obligations
under the Indenture, the Custodian Agreement and each Guarantee
Agreement, have been duly authorized by all necessary action of
the Trustee and each has been duly executed and delivered by the
Trustee.
(iv) The Indenture, the Custodian Agreement, the
Eligible Lender Agreements, the Administration Agreement and
each Guarantee Agreement constitute valid and binding
obligations of the Trustee enforceable against the Trustee.
(v) The execution and delivery by the Trustee of the
Indenture, the Custodian Agreement, the Eligible Lender
Agreements, the Administration 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.
17
(vii) Neither the consummation by the Trustee of the
transactions contemplated in the Indenture, the Custodian
Agreement, the Eligible Lender Agreements, the Administration
Agreement and each Guarantee Agreement nor the fulfillment of
the terms thereof by the Trustee will conflict with, result in a
breach or violation of, or constitute a default under any law or
the charter, by-laws or other organizational documents of the
Trustee or the terms of any indenture or other agreement or
instrument known to such counsel and to which the Trustee or any
of its subsidiaries is a party or is bound or any judgment,
order or decree known to such counsel to be applicable to the
Trustee or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body or arbitrator
having jurisdiction over the Trustee or any of its subsidiaries.
(viii) There are no actions, suits or proceedings
pending or, to the best of such counsel's knowledge after due
inquiry, threatened against the Trustee (as indenture trustee
under the Indenture or in its individual capacity) before or by
any governmental authority that might materially and adversely
affect the performance by the Trustee of its obligations under,
or the validity or enforceability of, the Indenture, the
Custodian Agreement, the Eligible Lender Agreements, the
Administration Agreement or any Guarantee Agreement.
(ix) The execution, delivery and performance by the
Trustee of the Indenture, the Custodian Agreement, the Eligible
Lender Agreements, the Administration Agreement or any Guarantee
Agreement will not subject any of the property or assets of the
Company or any portion thereof, to any lien created by or
arising under the Indenture that is unrelated to the
transactions contemplated in such agreements.
(x) The Trustee is an "eligible lender" for purposes of
the FFELP Program in its capacity as trustee with respect to
Financed Eligible Loans held under the Indenture.
(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 Nelnet Funding, the 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 Nelnet Funding, the Seller or the Servicer, as the
case may be, contained in the respective Purchase Agreement, the
Servicing Agreement and the Subservicing Agreement, as applicable, are
true and correct in all material respects, that each of Nelnet Funding,
the 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
Nelnet Funding, the 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 NelNet Funding, the Seller or the Servicer, as applicable,
has occurred.
18
(l) You shall have received certificates addressed to you dated
the Closing Date of any one of the Chairman of the Board, the President,
any Executive Vice President, Chief Financial Officer, Senior Vice
President or Vice President, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of NLS
in which such officers shall state that, to the best of their knowledge
after reasonable investigation, (i) the representations and warranties
of NLS contained in the Subservicing Agreement are true and correct in
all material respects, that NLS has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied under
such agreements at or prior to the Closing Date, (ii) that they have
reviewed the Prospectus and that the information therein regarding NLS
is fair and accurate in all material respects, and (iii) since the date
set forth in such certificate, except as may be disclosed in the
Prospectus, no material adverse change or any development involving a
prospective material adverse change in, or affecting particularly the
business or properties of, NLS has occurred.
(m) You shall have received evidence satisfactory to you that,
on or before the Closing Date, UCC-1 financing statements have been or
are being filed in the office of the Secretary of State of the State of
Delaware 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 KPMG Peat Marwick a letter dated the Closing Date, and in form and
substance satisfactory to the Representatives, 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.
(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.
19
(r) The Underwriters shall have received by instrument dated the
Closing Date (at the option of the Representatives), 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 Seller's and NLS's computer systems.
(u) You shall have received certificates addressed to you dated
the Closing Date from officers of Nelnet Funding and legal opinions
addressing such additional matters as you may reasonably request in form
and substance satisfactory to you and your counsel.
(v) You shall have received a signed Indemnity Agreement from
Nelnet Loan Services, Inc. in form and substance satisfactory to you and
your counsel.
(w) You shall have received (i) certified resolutions of the
board of directors of NELNET-2 authorizing the Redemption (as defined in
Section 6(c) above), (ii) a letter from an officer of NELNET-2
describing the reasons for the Redemption and (iii) a letter from an
officer of NELNET-2 stating that the Redemption shall be consummated in
compliance with all material provisions of the indentures and offering
documents pursuant to which the notes being redeemed were issued and
offered for sale.
(x) You shall have received such other opinions, certificates
and documents as are required under the Indenture as a condition to the
issuance of the Notes.
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, and preliminary versions of, any of them as may be reasonably
requested for use in connection with the offering and sale of the Notes; (iii)
the preparation, printing, authentication, issuance and delivery of definitive
certificates for the Notes; (iv) the printing (or reproduction) and delivery of
this Agreement, the preliminary and supplemental Blue Sky Memoranda and all
20
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) KPMG Peat Marwick,
accountants for the Company and issuer of the Comfort Letter; (viii) the
financial advisory fee payable to UFS Securities, L.L.C.; and (ix) 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
Representatives, or by the Representatives, 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 Representatives, 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 is such as to
make it, in the judgment of the Representatives, 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
in the second, third, ninth and tenth paragraphs and the second table under the
heading "Plan of Distribution" in the Prospectus Supplement constitute the only
information furnished by or on behalf of the Underwriters as such information is
referred to in Sections 3(b) and 5 hereof.
11. DEFAULT BY ONE OF THE UNDERWRITERS. If 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.
21
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.
22
(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 000 Xxxxx 00xx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx, and (ii)
if to the Underwriters, to the address of the respective Underwriter set forth
above with a copy to Xxxxxxx X. Xxxxx, Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx
Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
This Agreement has been and is made solely for the benefit of the
Underwriters, Nelnet Funding, the Company, their respective directors, officers,
managers, trustees and controlling persons referred to in Section 5 hereof and
their respective successors and assigns, to the extent provided herein, and no
other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and assigns" as
used in this Agreement shall include a purchaser from an Underwriter of any of
the Notes in his status as such purchaser.
15. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York without giving
effect to the choice of laws or conflict of laws principles thereof.
23
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.
24
Please confirm that the foregoing correctly sets forth the agreement
between the Nelnet Funding and the Underwriters.
Very truly yours,
NELNET STUDENT LOAN FUNDING, LLC
By: Nelnet, Inc., as Manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
Confirmed as of the date first above mentioned.
X.X. XXXXXX SECURITIES INC., acting on behalf of itself and as
Representative of the Underwriters
By:/s/ Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
XXXXXX XXXXXXX & CO. INCORPORATED, acting on behalf of itself and
as Representative of the Underwriters
By: /s/ Xxxx XxXxxxxxx
---------------------------------------
Name: Xxxx XxXxxxxxx
Title: Managing Director
25
SCHEDULE A
--------------- --------------- -------------- -------------- --------------- --------------- -------------- ----------------
Xxxxxx Banc of
X.X. Xxxxxx Xxxxxxx & America Deutsche Bank Mellon
Securities Co. Securities Securities Financial RBC Dain
Notes Inc. Incorporated LLC Inc. Markets, LLC Xxxxxxxx Inc. TOTAL
--------------- --------------- -------------- -------------- --------------- --------------- -------------- ----------------
Class A-1 $81,000,000 $81,000,000 $30,000,000 $30,000,000 $13,000,000 $13,000,000 $248,000,000
--------------- --------------- -------------- -------------- --------------- --------------- -------------- ----------------
Class A-2 $89,000,000 $89,000,000 $35,000,000 $35,000,000 $12,000,000 $12,000,000 $272,000,000
--------------- --------------- -------------- -------------- --------------- --------------- -------------- ----------------
Class A-3 $62,500,000 $62,500,000 $20,000,000 $20,000,000 $10,000,000 $10,000,000 $185,000,000
--------------- --------------- -------------- -------------- --------------- --------------- -------------- ----------------
Class A-4L $111,500,000 $111,500,000 $45,000,000 $45,000,000 $20,000,000 $20,000,000 $353,000,000
--------------- --------------- -------------- -------------- --------------- --------------- -------------- ----------------
Class A-4CP $35,000,000 $35,000,000 $10,000,000 $10,000,000 $5,000,000 $5,000,000 $100,000,000
--------------- --------------- -------------- -------------- --------------- --------------- -------------- ----------------
Class B $21,000,000 $21,000,000 $0 $0 $0 $0 $42,000,000
--------------- --------------- -------------- -------------- --------------- --------------- -------------- ----------------
Total $400,000,000 $400,000,000 $140,000,000 $140,000,000 $60,000,000 $60,000,000 $1,200,000,000
--------------- --------------- -------------- -------------- --------------- --------------- -------------- ----------------
Terms of the Notes
Class Interest Rate Final Maturity Price to Public Underwriting Proceeds to
Date Discount Issuer
----- ------------- --------------- --------------- ------------ -----------
2002 A-1 3-month LIBOR plus 0.0% 9/25/08 100% 0.19% $247,528,800
2002 A-2 3-month LIBOR plus 0.03% 6/25/11 100% 0.20% $271,456,000
2002 A-3 3 month LIBOR plus 0.10% 9/25/13 100% 0.21% $184,611,500
2002A-4L 3 month LIBOR plus 0.22% 9/25/24 100% 0.2265% $352,200,455
2002A-4CP 3 month CP Rate plus 0.30% 9/25/24 100% 0.2265% $99,773,500
2002 B 3-month LIBOR plus 0.70% 12/26/33 100% 0.50% $41,790,000
TOTAL $1,197,360,255
