EXHIBIT 1.1
XXXXXX XXX STUDENT LOAN TRUST 1998-A
$
CLASS A-1 FLOATING RATE ASSET-BACKED NOTES
$
CLASS A-2 FLOATING RATE ASSET-BACKED NOTES
$
FLOATING RATE ASSET-BACKED CERTIFICATES
[FORM OF]
UNDERWRITING AGREEMENT
______________, 1999
[Name of Underwriter]
As Representative of the several Underwriters
[Address of Representative]
Ladies and Gentlemen:
1. INTRODUCTORY. Xxxxxx Xxx Education Loan Corporation, a Delaware
corporation ("NMELC"), proposes to cause Xxxxxx Xxx Student Loan Trust 1999-A
(the "TRUST") to issue and sell $[________] aggregate principal amount of its
Class A-1 Floating Rate Asset-Backed Notes (the "CLASS A-1 NOTES"), $[_______]
aggregate principal amount of its Class A-2 Floating Rate Asset-Backed Notes
(the "CLASS A-2 NOTES" and, together with the Class A-1 Notes, the "NOTES"), and
$[______] aggregate principal amount of its Floating Rate Asset-Backed
Certificates (the "Certificates" and, together with the Notes, the "SECURITIES")
to the underwriters named in Schedule I hereto (the "UNDERWRITERS") for which
[_____________] (the "REPRESENTATIVE") is acting as representative. The assets
of the Trust include, among other things, a pool of student loans (the "INITIAL
TRUST LOANS") and certain monies due thereunder on and after______ __, 1999 (the
"CUTOFF DATE"). Such Initial Trust Loans will be sold to the Eligible Lender
Trustee (as defined below) on behalf of the Trust by NMELC (and, with respect to
legal title to the Trust Loans, by The First National Bank of Chicago, as
trustee for NMELC ("FNBC")) pursuant to a sale agreement, dated as of______ __,
1999 (the "LOAN SALE AGREEMENT") among the Trust, NMELC, FNBC and The First
National Bank of Chicago, a national banking association, as eligible lender
trustee for the Trust (the "ELIGIBLE LENDER TRUSTEE"). Under certain
circumstances after the Closing Date (as defined below), the Eligible
Xxxxxx Xxxxxxx, acting on behalf of the Trust, may acquire additional student
loans (the "ADDITIONAL TRUST LOANS", together with the Initial Trust Loans being
referred to herein, collectively, as the "TRUST LOANS"). The Trust Loans are to
be serviced by NMELC, in its capacity as master servicer (in such capacity, the
"MASTER SERVICER") pursuant to a master servicing agreement, dated as of _____
__, 1999 (the "MASTER SERVICING AGREEMENT"), among the Trust, NMELC and the
Eligible Lender Trustee. The Notes will be issued pursuant to an Indenture to be
dated as of ______ _, 1999 (as amended and supplemented from time to time, the
"INDENTURE"), between the Trust and State Street Bank and Trust Company, a
Massachusetts banking corporation, as trustee under the Indenture (the
"INDENTURE TRUSTEE"). The Trust will be formed pursuant to a trust agreement to
be dated as of _______ __, 1999 (the "TRUST AGREEMENT"), among NMELC, as
depositor, Xxxxxx Xxx Funding, LLC, a limited purpose Delaware limited liability
company ("NMF"), and the Eligible Lender Trustee. A Delaware banking corporation
will be appointed as a co-trustee under the Trust Agreement pursuant to a
co-trustee agreement, dated as of ______ __, 1999 (the "CO-TRUSTEE AGREEMENT"),
between such corporation and the Eligible Lender Trustee.
Capitalized terms used and not otherwise defined herein shall
have the meanings given them in Appendix A hereto.
NMELC filed with the Securities and Exchange Commission (the
"COMMISSION" on May 18, 1999, a registration statement on Form S-3 (No.
333-78725), including a form of prospectus and prospectus supplement relating to
the Securities, and pursuant to the provisions hereof shall file such
post-effective amendments thereto as may hereafter be required pursuant to the
Securities Act of 1933, as amended (the "1933 ACT"), and the rules and
regulations of the Commission thereunder (the "RULES AND REGULATIONS"). Such
registration statement (as amended) is referred to herein as the "REGISTRATION
STATEMENT"; the prospectus and prospectus supplement relating to the offering of
the Securities constituting a part of the Registration Statement filed or to be
filed by NMELC are collectively referred to herein as the "PROSPECTUS" and each
of the prospectus and prospectus supplement is referred to as the "BASE
PROSPECTUS" and the "PROSPECTUS SUPPLEMENT" respectively; and any reference
herein to any amendment or supplement with respect to the Registration Statement
or the Prospectus shall be deemed to refer to and include any information deemed
to be a part thereof pursuant to Rule 430A under the 1933 Act.
2. REPRESENTATIONS AND WARRANTIES OF NMELC. (a) NMELC represents and
warrants to and agrees with the several Underwriters that:
(i) The Registration Statement has become effective under the
1933 Act. The Registration Statement complies, and all amendments to
the Registration Statement at the time such amended Registration
Statement becomes effective will comply, in all material respects with
the requirements of the 1933 Act and the Rules and Regulations. The
Registration Statement at the time such Registration Statement became
effective did not, and any amendment to the Registration Statement at
the time such amended Registration Statement becomes effective will
not, contain 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. The Prospectus as of the date
hereof does, and the Prospectus as amended or supplemented as of the
Closing Date will, comply in all
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material respects with the requirements of the 1933 Act and the Rules
and Regulations. The Prospectus as of the date hereof did not, and the
Prospectus as amended or supplemented as of the Closing Date will not,
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
PROVIDED, however, that the representations and warranties in this
subsection shall not apply to statements in, or omissions from, the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to NMELC in writing by the
Underwriters expressly for use in the Registration Statement or
Prospectus. NMELC acknowledges that the statements set forth under the
caption "UNDERWRITING" in the Prospectus Supplement constitute the only
information furnished in writing by the Underwriters for inclusion in
the Prospectus. The conditions to the use by NMELC of a registration
statement on Form S-3 under the 1933 Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus. There are no contracts or
documents of NMELC or its affiliates that are required to be filed as
exhibits to the Registration Statement pursuant to the 1933 Act or the
Rules and Regulations that have not been so filed on or prior to the
effective date of the Registration Statement.
(ii) Since the respective dates as of which information is
given in the Prospectus, or the Prospectus as amended and supplemented
at the Closing Date, there has not been any material adverse change in
the general affairs, management, financial condition or results of
operations of any of the Transaction Parties or of their subsidiaries
or affiliates, otherwise than as set forth in the Prospectus or the
Prospectus as amended and supplemented at the Closing Date.
(iii) NMELC's representations and warranties in the Loan Sale
Agreement, the Administration Agreement and the Trust Agreement will be
true and correct in all material respects as of the Closing Date and
each such representation and warranty will be true and correct in all
material respects on each date thereafter if and to the extent that on
such date such representation and warranty is made again by NMELC
pursuant to the terms of the related agreement.
(iv) This Agreement has been duly authorized, executed and
delivered by NMELC. The execution, delivery and performance of this
Agreement and the issuance and sale of the Securities and compliance
with the terms and provisions hereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any agreement or instrument to which NMELC is a party or
by which NMELC is bound or to which any of the properties of NMELC is
subject which could reasonably be expected to have a material adverse
effect on the transactions contemplated herein. NMELC has full power
(corporate and other) and authority to cause the Trust to authorize,
issue and sell the Securities, all as contemplated by this Agreement.
(v) 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 NMELC or any of its affiliates or an
underwriter any brokerage or finder's fee or other fee or commission as
a result of any of the transactions contemplated by this Agreement.
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(vi) All legal or governmental proceedings, contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required.
(vii) NMELC's (and, with respect to legal title to the Initial
Trust Loans, FNBC's) assignment and delivery of the Initial Trust Loans
to the Eligible Lender Trustee on behalf of the Trust as of the Closing
Date and of the Additional Trust Loans from time to time thereafter
pursuant to the Loan Sale Agreement will vest in the Eligible Lender
Trustee on behalf of the Trust all NMELC's and FNBC's right, title and
interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
(viii) The Trust's assignment of the Trust Loans to the
Indenture Trustee pursuant to the Indenture will vest in the Indenture
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.
(ix) None of NMELC, NMF or the Trust is, and neither the
issuance and sale of the Securities nor the activities of the Trust
pursuant to the Indenture or the Trust Agreement will cause NMELC, NMF
or the Trust to be, an "investment company" or under the "control" of
an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended.
(b) NMELC hereby agrees with the Underwriters that, for all
purposes of this Agreement, the only information furnished to NMELC by the
Underwriters through the Representative specifically for use in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, are the statements under the caption
"Underwriting" in the preliminary prospectus and the Prospectus.
3. PURCHASE, SALE AND DELIVERY OF THE SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, NMELC agrees to cause the Trust to sell
to the Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Trust the respective principal amounts of the classes of Notes
and the Certificates set forth opposite their respective names in Schedule I
hereto at the respective purchase prices set forth therein.
NMELC will deliver the Securities to the Representative for
the respective accounts of the Underwriters, against payment of the purchase
price to or upon the order of NMELC by wire transfer or check in Federal (same
day) Funds, at the office of Brown & Wood LLP, One World Trade Center, New York,
New York 10048, at 10:00 a.m. New York time, on _____ __, 1999, or at such other
time not later than seven full business days thereafter as the Representative
and NMELC determine, such time being herein referred to as the "CLOSING DATE".
The Notes and Certificates to be so delivered will initially be represented by
one or more Notes and Certificates, as the case may be, registered in the name
of Cede & Co., the nominee of The Depository Trust Company ("DTC"). The
interests of beneficial owners of the Securities will be represented by book
entries on the records of DTC and participating members thereof.
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Definitive Notes will be available only under the limited circumstances
specified in the Indenture and Definitive Certificates will be available only
under the limited circumstances specified in the Trust Agreement.
4. OFFERING BY THE UNDERWRITERS. It is understood that, after the
Registration Statement becomes effective, the several Underwriters propose to
offer the Securities for sale to the public (which may include selected dealers)
as set forth in the Prospectus.
5. COVENANTS OF NMELC. NMELC covenants and agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, NMELC will not file any amendment of the Registration Statement or
supplement to the Prospectus unless NMELC has furnished the Representative a
copy for its review prior to filing and will not file any such proposed
amendment or supplement to which the Representative reasonably objects. Subject
to the foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), NMELC will file the Prospectus, properly completed,
and any supplement thereto, with the Commission pursuant to and in accordance
with the applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representative of such timely
filing.
(b) NMELC will advise the Representative promptly of any
proposal to amend or supplement the registration statement as filed or the
related prospectus or the Registration Statement or the Prospectus and will not
effect such amendment or supplementation without the consent of the
Representative prior to the Closing Date, and thereafter will not effect any
such amendment or supplementation to which the Representative reasonably
objects; NMELC will also advise the Representative promptly of any request by
the Commission for any amendment of or supplement to the Registration Statement
or the Prospectus or for any additional information; and NMELC will also advise
the Representative promptly of the effectiveness of any amendment or supplement
to the Registration Statement or the Prospectus and of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threat of any proceeding for that purpose and
NMELC will use its best efforts to prevent the issuance of any such stop order
and to obtain as soon as possible the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would contain an
untrue statement of a material fact or 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, or if it is necessary at any time to amend the
Registration Statement or supplement the Prospectus to comply with the Act or
the Exchange Act, NMELC promptly will prepare and file, or cause to be prepared
and filed, with the Commission an amendment or supplement which will correct
such statement or omission, or an amendment or supplement which will effect such
compliance. Neither the consent of the Representative to, nor the delivery by
the several Underwriters of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6 hereof.
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(d) As soon as practicable, but not later than the
Availability Date (as defined below), NMELC will cause the Trust to make
generally available to Securityholders an earnings statement of the Trust
covering a period of at least 12 months beginning after the Effective Date which
will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the
applicable Rules and Regulations. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth fiscal
quarter following the fiscal quarter that includes the original effective date
of the Registration Statement, except that, if such fourth fiscal quarter is the
last quarter of the Trust's fiscal year, "AVAILABILITY DATE" means the 90th day
after the end of such fourth fiscal quarter.
(e) NMELC will furnish to the Representative copies of the
Registration Statement (two of which will be signed and will include all
exhibits), each related preliminary prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Representative reasonably requests.
(f) NMELC will arrange for the qualification of the Securities
for sale under the laws of such states as the several Underwriters may require
and will continue such qualifications in effect so long as required for the
distribution.
(g) For a period from the date of this Agreement until the
retirement of the Securities, or until such time as the several Underwriters
shall cease to maintain a secondary market in the Securities, whichever occurs
first, NMELC will deliver to the Representative the annual statements of
compliance and the annual independent certified public accountants' reports
furnished to the Indenture Trustee or the Eligible Lender Trustee pursuant to
the Master Servicing Agreement as soon as such statements and reports are
furnished to the Indenture Trustee or the Eligible Lender Trustee.
(h) So long as any of the Securities are outstanding, NMELC
will furnish to the Representative (i) as soon as practicable after the end of
the fiscal year all documents required to be distributed to Securityholders or
filed with the Commission on behalf of the Trust pursuant to the Exchange Act or
any order of the Commission thereunder and (ii) from time to time, any other
information concerning NMELC as the Representative may reasonably request.
(i) On or before the Closing Date, NMELC shall mark its
accounting and other records, if any, relating to the Initial Trust Loans and
shall cause FNBC, together with AFSA Data Corporation and USA Group Loan
Services, Inc. (the "SUBSERVICERS"), to mark their computer records relating to
the Initial Trust Loans to show the absolute ownership by the Eligible Lender
Trustee on behalf of the Trust of the Initial Trust Loans, and from and after
the Closing Date NMELC will take, and cause FNBC and the Subservicers to take,
such actions with regard to any Additional Trust Loans at the time of the
conveyance thereof to the Trust; and none of NMELC, FNBC and the Subservicers
shall take any action inconsistent with the ownership by the Eligible Lender
Trustee on behalf of the Trust of the Trust Loans, other than as permitted by
the Loan Sale Agreement or the Master Servicing Agreement.
(j) To the extent, if any, that the ratings provided with
respect to the Securities by the rating agency or agencies (the "RATING
AGENCIES") that initially rate the Securities are conditional upon the
furnishing of documents or the taking of any other actions by NMELC
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agreed upon on or prior to the Closing Date, NMELC shall furnish or shall cause
to be furnished such documents and take any such other actions. A copy of any
such document shall be provided to the Representative at the time it is
delivered to such rating agency or agencies.
(k) For the period beginning on the date of this Agreement and
ending 60 days after the Closing Date, neither NMELC nor any trust originated,
directly or indirectly, by NMELC will, without the prior written consent of the
Representative, offer to sell or sell notes (other than the Notes)
collateralized by, or certificates evidencing an ownership interest in, student
loans; PROVIDED, HOWEVER, that this shall not be construed to prevent the sale
of student loans by NMELC.
(l) NMELC will apply the net proceeds of the offering and the
sale of the Securities that it receives in the manner set forth in the
Prospectus under the caption "Use of Proceeds".
(m) NMELC will pay all expenses incident to the performance of
its obligations under this Agreement, including (i) the printing and filing of
the documents (including the Registration Statement and Prospectus), (ii) the
preparation, issuance and delivery of the Securities to the Representative,
(iii) the fees and disbursements of NMELC's counsel and accountants, (iv) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 5(f) hereof, including filing fees and the fees and
disbursements of counsel for the Representative in connection therewith and in
connection with the preparation of any "blue sky" or legal investment survey, if
any is requested, (v) the printing and delivery to the Representative of copies
of the Registration Statement as originally filed and of each amendment thereto,
(vi) the printing and delivery to the Representative of copies of any "blue sky"
or legal investment survey prepared in connection with the Securities, (vii) any
fees charged by rating agencies for the ratings of the Securities, (viii) the
fees and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. and (ix) the fees and expenses of Brown
& Wood LLP in its role as special federal tax counsel to the Trust incurred as a
result of providing the opinions required by Section 6(e) hereof.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Securities will be
subject to the accuracy of the representations and warranties on the part of
NMELC herein, to the accuracy of the written statements of officers of NMELC
made pursuant to the provisions of this Section, to the performance by NMELC of
its obligations hereunder and to the following additional conditions precedent:
(a) The Prospectus and any supplements thereto shall have been
filed with the Commission in accordance with the applicable Rules and
Regulations and Section 5(a) hereof. 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 NMELC or the Representative, shall be contemplated by the
Commission.
(b) On or prior to the Closing Date, the Representative shall
have received a letter dated the Closing Date, in form and substance
satisfactory to the Representative and its
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counsel, from [________] with respect to certain agreed-upon procedures,
substantially in the form of the drafts to which the Representative has
previously agreed and otherwise in form and substance reasonably satisfactory to
the Representative and its counsel.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Trust, NMELC, NMF or Xxxxxx Xxx Corporation which, in the
judgment of the Representative, materially impairs the investment quality of the
Securities or makes it impractical or inadvisable to market the Securities; (ii)
any downgrading by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act) of, or any public
announcement that any such organization has under surveillance or review (other
than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading), the rating of any debt securities of
NMELC or Xxxxxx Xxx Corporation; (iii) any suspension or limitation of trading
in securities generally on the New York Stock Exchange or any setting of minimum
prices for trading on such exchange; (iv) any banking moratorium declared by
federal or New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the judgment of the Representative, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Securities.
(d) The Representative shall have received an opinion of Xxx
X. X'Xxxxxx, General Counsel of Xxxxxx Xxx Corporation, as counsel for NMELC,
dated the Closing Date, satisfactory in form and substance to the Representative
and its counsel.
(e) The Representative shall have received an opinion
addressed to the several Underwriters of Brown & Wood LLP, special federal tax
counsel to the Trust, dated the Closing Date, to the effect that the statements
in the Base Prospectus under the heading "U.S. Federal Income Tax Consequences"
and in the Prospects Supplement under the heading "Federal Tax Consequences"
accurately describe the material federal income tax consequences to holders of
the Securities.
(f) The Representative shall have received an opinion
addressed to the several Underwriters of Xxx X. X'Xxxxxx, General Counsel of
Xxxxxx Xxx Corporation, as counsel for NMELC, NMF and the Trust, dated the
Closing Date, in form and substance satisfactory to the Representative and its
counsel, concerning (i) the true sale of the Trust Loans from NMELC to the Trust
and (ii) the nonconsolidation of NMF with NMELC and NMELC's other affiliates in
the event of a bankruptcy or insolvency of NMELC or NMELC's other affiliates.
(g) The Representative shall have received an opinion of Xxx
X. X'Xxxxxx, General Counsel of Xxxxxx Xxx Corporation, as counsel for NMELC,
dated the Closing Date and satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) NMELC has been duly organized and is validly existing as a
nonprofit Delaware corporation in good standing under the laws thereof
with full power and authority (corporate and other) to own its
properties and conduct its
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business as currently conducted by it, and to enter into and perform
its obligations under the Master Servicing Agreement, and had at all
relevant times, and now has, the power, authority and legal right to
service the Trust Loans consistent with all applicable conditions,
restrictions and limitations of the federal Higher Education Act of
1965, as amended (the "HIGHER EDUCATION ACT").
(ii) The Master Servicing Agreement has been duly authorized,
executed and delivered by NMELC and is the legal, valid and binding
obligation of NMELC enforceable against NMELC in accordance with its
terms, except that (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)
the 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 NMELC of the
Master Servicing Agreement, the consummation by NMELC of the
transactions contemplated therein, or the fulfillment of the terms
thereof by NMELC will conflict with, result in a breach, violation or
acceleration of, or constitute a default under, any term or provision
of the Certificate of Incorporation or Bylaws of NMELC or of any
indenture or other agreement or instrument to which NMELC is a party or
by which NMELC is bound, or result in a violation of or contravene the
terms of any statute, order or regulation applicable to NMELC of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over NMELC.
(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 NMELC before or by any
governmental authority that might materially and adversely affect the
performance by NMELC of its obligations under, or the validity or
enforceability of, the Master Servicing Agreement.
(v) Nothing has come to such counsel's attention that would
lead such counsel to believe that the representations and warranties of
the Master Servicer contained in the Master Servicing Agreement are
other than as stated therein.
(h) The Representative shall have received an opinion of
Xxxxxxxx, Xxxxxx & Finger and/or [__________], as special Delaware counsel for
the Trust, dated the Closing Date, in form and substance satisfactory to the
Representative and its counsel, to the effect that:
(i) The Trust Agreement constitutes the valid and binding
obligation of the Eligible Lender Trustee, the Delaware Trustee, NMELC
and NMF, enforceable against the Eligible Lender Trustee, the Delaware
Trustee, NMELC and NMF, in accordance with its terms subject to (i)
applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent conveyance and
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similar laws relating to and affecting the rights and remedies of
creditors generally, and (ii) principles of equity (regardless of
whether considered and applied in a proceeding in equity or at law).
(ii) The Trust has been duly formed and is validly existing as
a business trust under the Business Trust Act of the State of Delaware
(the "BUSINESS TRUST ACT"). The Trust Agreement authorizes the Trust to
execute and deliver the Trust Agreement, the Indenture, the Master
Servicing Agreement, the Loan Sale Agreement and the Administration
Agreement, and to issue the Notes and the Certificates and to grant the
Trust Estate to the Indenture Trustee as security for the Notes.
(iii) Except for the timely filing in the future of
continuation statements with respect to the financing statements, no
other filing is required in the State of Delaware in order to make
effective the lien of the Indenture. Insofar as Article 9 of the
Delaware Uniform Commercial Code, 6 Del. C. ss.9-101 ET SEQ. (the
"UCC"), applies (without regard to conflict of laws principles) and --
--- assuming that the security interest in that portion of the
Collateral that consists of general intangibles and accounts, as
defined under the UCC, has been duly created and has attached, the
Indenture Trustee has a perfected security interest in such general
intangibles and accounts and the proceeds thereof and, assuming that
the UCC search accurately lists all of the financing statements filed
naming the Trust as debtor and describing any portion of the Collateral
consisting of such general intangibles and accounts and the proceeds
thereof, such security interest of the Indenture Trustee will be prior
to the security interest of all other creditors of the Trust whose
security interests are perfected solely by filing UCC financing
statements in the State of Delaware, excluding purchase money security
interests underss.9-312 of the UCC and temporarily perfected security
interests in proceeds underss.9-306 of the UCC.
(iv) Under ss. 3805(b) of the Business Trust Act, no creditor
of NMF shall have any right to obtain possession of, or otherwise
exercise legal or equitable remedies with respect to, the property of
the Trust except in accordance with the terms of the Trust Agreement.
(v) Under ss. 3805(c) of the Business Trust Act, and assuming
that the Loan Sale Agreement conveys good title to the Initial Trust
Loans to the Trust as a true sale and not as a security arrangement,
the Trust rather than NMELC is the owner of the Initial Trust Loans.
(vi) The Delaware Trustee is not required to hold legal title
to the Trust Estate in order for the Trust to qualify as a business
trust under the Business Trust Act.
(vii) The execution and delivery by the Eligible Lender
Trustee or the Delaware Trustee of the Trust Agreement and, on behalf
of the Trust, of the Trust Agreement, the Indenture, the Master
Servicing Agreement, the Loan Sale
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Agreement and the Administration Agreement do not require any consent,
approval or authorization of, or any registration of filing with, any
governmental authority of the State of Delaware, except for the filing
of the Certificate of Trust with the Secretary of State.
(viii) Neither the consummation by the Eligible Lender Trustee
or the Delaware Trustee of the transactions contemplated in the Trust
Agreement or, on behalf of the Trust, the transactions contemplated in
the Trust Agreement, the Indenture, the Master Servicing Agreement, the
Loan Sale Agreement and the Administration Agreement nor the
fulfillment of the terms thereof by the Eligible Lender Trustee or the
Delaware Trustee will conflict with or result in a breach or violation
of any law of the State of Delaware.
(i) The Representative shall have received an opinion of The
Law Department of The First National Bank of Chicago, counsel to the Eligible
Lender Trustee, dated the Closing Date and satisfactory in form and substance to
the Representative and its counsel, to the effect that:
(i) The Eligible Lender Trustee is a national banking
association duly organized and validly existing under the laws of the
United States.
(ii) The Eligible Lender Trustee has the full corporate trust
power to accept the office of eligible lender trustee under the Trust
Agreement and to enter into and perform its obligations under the Trust
Agreement, the Master Servicing Agreement, the Loan Sale Agreement and
the Co-Trustee Agreement and, on behalf of the Trust, under the
Indenture, the Master Servicing Agreement, the Loan Sale Agreement, the
Administration Agreement and any Guarantee Agreement.
(iii) The execution and delivery of the Trust Agreement, the
Master Servicing Agreement, the Loan Sale Agreement and the Co-Trustee
Agreement by the Eligible Lender Trustee and the Indenture, the Master
Servicing Agreement, the Loan Sale Agreement, the Administration
Agreement and any Guarantee Agreement by the Eligible Lender Trustee on
behalf of the Trust, and the performance by the Eligible Lender Trustee
of its obligations under the Trust Agreement, the Master Servicing
Agreement, the Loan Sale Agreement and the Co-Trustee Agreement, as
well as the performance by the Eligible Lender Trustee of its
obligations on behalf of the Trust under the Indenture, the Master
Servicing Agreement, the Loan Sale Agreement, the Administration
Agreement and any Guarantee Agreement have been duly authorized by all
necessary action of the Eligible Lender Trustee and each has been duly
executed and delivered by the Eligible Lender Trustee.
(iv) The Trust Agreement, the Master Servicing Agreement, the
Loan Sale Agreement and the Co-Trustee Agreement constitute valid and
binding obligations of the Eligible Lender Trustee enforceable against
the Eligible Lender Trustee in accordance with their respective terms,
and the Indenture, the Master
11
Servicing Agreement, the Loan Sale Agreement, the Administration
Agreement and any Guarantee Agreement constitute the valid and binding
obligations of the Trust enforceable against the Trust in accordance
with their respective terms, except in each case as the enforceability
thereof may be (a) limited by bankruptcy, insolvency, reorganization,
moratorium, liquidation or other similar laws affecting the rights of
creditors generally, and (b) subject to general principals of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(v) The execution and delivery by the Eligible Lender Trustee
of the Trust Agreement, the Master Servicing Agreement, the Loan Sale
Agreement and the Co-Trustee Agreement and by the Eligible Lender
Trustee on behalf of the Trust of the Indenture, the Master Servicing
Agreement, the Loan Sale Agreement, the Administration Agreement and
any Guarantee Agreement do not require any consent, approval or
authorization of, or any registration or filing with, any applicable
governmental authority which has not been obtained or done.
(vi) Each of the Securities has been duly executed and
delivered by the Eligible Lender Trustee on behalf of the Trust.
(vii) None of (x) the consummation by the Eligible Lender
Trustee of the transactions contemplated in the Trust Agreement, the
Master Servicing Agreement, the Loan Sale Agreement or the Co-Trustee
Agreement, (y) the consummation by the Trust of the transactions
contemplated in the Indenture, the Administration Agreement and any
Guarantee Agreement or (z) the fulfillment of the terms thereof by the
Eligible Lender Trustee or the Trust, as the case may be, will conflict
with, result in a breach or violation of, or constitute a default under
any law or the Articles of Association, Bylaws or other organizational
documents of the Eligible Lender Trustee or the terms of any indenture
or other agreement or instrument known to such counsel and to which the
Eligible Lender Trustee or any of its subsidiaries is a party or by
which it or any of them is bound or any judgment, order or decree known
to such counsel to be applicable to the Eligible Lender Trustee or any
of its subsidiaries, of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Eligible Lender 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 Eligible Lender Trustee (as eligible lender trustee under
the Trust Agreement or in its individual capacity) before or by any
governmental authority that might materially and adversely affect the
performance by the Eligible Lender Trustee of its obligations under, or
the validity or enforceability of, the Trust Agreement, the Master
Servicing Agreement, the Loan Sale Agreement or the Co-Trustee
Agreement.
(ix) The execution, delivery and performance by the Eligible
Lender Trustee of the Trust Agreement, the Master Servicing Agreement,
the Loan Sale
12
Agreement and the Co-Trustee Agreement, and the execution, delivery and
performance by the Eligible Lender Trustee on behalf of the Trust of
the Indenture, the Master Servicing Agreement, the Loan Sale Agreement,
the Administration Agreement and any Guarantee Agreement will not
subject any of the property or assets of the Trust, or any portion
thereof, to any liens created by or arising under the Eligible Lender
Trustee that are unrelated to the transactions contemplated in such
agreements.
(j) The Representative shall have received an opinion of counsel to
FNBC acceptable to the Representative, dated the Closing Date and satisfactory
in form and substance to the Representative and its counsel, to the effect that:
(i) FNBC is a national banking association duly incorporated
or organized and validly existing under the laws of the United States.
(ii) The Loan Sale Agreement has been duly authorized by all
necessary action of FNBC and has been duly executed and delivered by
FNBC.
(iii) The Loan Sale Agreement constitutes a valid and binding
obligation of FNBC enforceable against FNBC in accordance with its
terms, except (x) that 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)
the 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.
(iv) The execution and delivery by FNBC of the Loan Sale
Agreement does not require any consent, approval or authorization of,
or any registration or filing with, any governmental authority having
jurisdiction over FNBC.
(v) FNBC is an "eligible lender" as such term is defined in
Section 435(d) of the Higher Education Act for purposes of holding
legal title to the Trust Loans.
(k) The Representative shall have received an opinion of [__________],
counsel to the Indenture Trustee, dated the Closing Date and satisfactory in
form and substance to the Representative and its counsel, to the effect that:
(i) The Indenture Trustee is a banking corporation validly
existing under the laws of the Commonwealth of Massachusetts.
(ii) The Indenture Trustee has the requisite power and
authority to execute, deliver and perform its obligations under the
Indenture and the Administration Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of
the Indenture and the Administration Agreement.
13
(iii) Each of the Indenture and the Administration Agreement
has been duly executed and delivered by the Indenture Trustee and
constitutes a legal, valid and binding obligation of the Indenture
Trustee, enforceable against the Indenture Trustee in accordance with
its respective terms, except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation, or
other similar laws applicable to banking corporations affecting the
enforcement of creditors' rights generally, and by general principles
of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(iv) The Notes have been duly authenticated by the Indenture
Trustee in accordance with the terms of the Indenture.
(l) The Representative shall have received an opinion of counsel
acceptable to the Representative of each Guarantor, dated the Closing Date, and
in form and substance satisfactory to the Representative and its counsel, to the
effect that:
(i) The Guarantor has been duly incorporated and is validly
existing as a non-profit corporation in good standing under the laws of
the State of its incorporation with full power and authority (corporate
and other) to own its properties and conduct its business, as currently
conducted by it, and to enter into and perform its obligations under
its Guarantee Agreement (and the agreements with the Department under
Section 428 of the Higher Education Act to the extent relevant to its
obligations under such Guarantee Agreement), and had at all relevant
times, and now has, the power, authority and legal right to guarantee
the Trust Loans covered by such Guarantee Agreement and to receive,
subject to compliance with all applicable conditions, restrictions and
limitations of the Higher Education Act and any rules and regulations
thereunder and interpretations thereof, reinsurance payments from the
Department with respect to claims paid by it on such Trust Loans.
(ii) The Guarantor is duly qualified to do business and is in
good standing, and has obtained all necessary licenses and approvals in
each jurisdiction in which failure to qualify or to obtain such license
or approval would render the Guarantor's obligation under its Guarantee
Agreement to guarantee the Trust Loans covered thereby unenforceable by
or on behalf of the Trust.
(iii) The Guarantor's Guarantee Agreement (and its agreements
with the Department under Section 428 of the Higher Education Act to
the extent relevant to the Guarantor's obligations under such Guarantee
Agreement) have been duly authorized, executed and delivered by the
Guarantor and are the legal, valid and binding obligation of the
Guarantor enforceable against the Guarantor in accordance with their
respective terms, except that (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) the remedy of specific performance and injunctive and other
forms of equitable relief
14
may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(iv) None of the execution and delivery by the Guarantor of
its Guarantee Agreement, the consummation by the Guarantor of the
transactions contemplated therein, or the fulfillment of the terms
thereof by the Guarantor will conflict with, result in a breach,
violation or acceleration of, or constitute a default under, any terms
or provision of the organizational documents or bylaws of the Guarantor
or of any indenture or other agreement or instrument to which the
Guarantor is a party or by which the Guarantor is bound, or result in a
violation of or contravene the terms of any statute, order or
regulation applicable to the Guarantor of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Guarantor.
(v) There are no actions, proceedings or investigations
pending or, to the best of such counsel's knowledge after due inquiry,
threatened against the Guarantor before or by any governmental
authority that might materially and adversely affect the performance by
the Guarantor of its obligations under, or the validity or
enforceability of, its Guarantee Agreement.
(vi) The Guarantor is a "guarantor" covered by the provisions
of Section 432(o) of the Higher Education Act.
(m) The Representative shall have received an opinion of Xxxxx & Wood
LLP, in its capacity as special counsel to the several Underwriters, dated the
Closing Date and addressed to the several Underwriters, with respect to the
validity of the Notes and such other related matters as the Representative shall
reasonably require and NMELC shall have furnished or caused to be furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(n) The Representative shall have received an opinion of Xxxx, Xxxxxx &
Xxxxxxxxx, special student loan counsel to the several Underwriters or, in the
case of (iii) below, special student loan counsel to the Eligible Lender Trustee
and FNBC, dated the Closing Date, and satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) The Basic Documents, and the transactions contemplated by
the Basic Documents, conform in all material respects to the applicable
requirements of the Higher Education Act, and that, upon the due
authorization, execution and delivery of the Basic Documents and the
consummation of such transactions, the Trust Loans, legal title to
which will be held by the Eligible Lender Trustee on behalf of the
Trust, will qualify, subject to compliance with all applicable
origination and servicing requirements with respect thereto, to receive
all applicable federal assistance payments, including federal
reinsurance and federal interest subsidies and special allowance
payments, with respect thereto.
(ii) To the extent that the statements in the Prospectus
purport to summarize or describe provisions of the Higher Education
Act, or constitute
15
statements of matters of law or legal conclusions with respect to the
Higher Education Act, such statements have been prepared or reviewed by
such counsel and accurately describe the material consequences to
holders of the Securities under the Higher Education Act.
(iii) Such counsel has examined the Registration Statement and
the Prospectus, and nothing has come to such counsel's attention that
would lead such counsel to believe that, solely with respect to the
Higher Education Act and the student loan business, the Registration
Statement or the Prospectus or any amendment or supplement thereto as
of the respective dates thereof or on the Closing Date contains an
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein not misleading.
(iv) Each of the Eligible Lender Trustee and the Indenture
Trustee is an "eligible lender" as such term is defined in Section
435(d) of the Higher Education Act for purposes of holding legal title
to the Trust Loans.
(v) Each of the Guarantors is a private non-profit Family
Federal Education Loan Program ("FFELP") guaranty agency (a "GUARANTY
AGENCY") covered by the provisions of Section 432(o) of the Higher
Education Act. In the event that the United States Secretary of
Education (the "SECRETARY") determines that a Guaranty Agency is unable
to meet its insurance obligations under Title IV-B of the Higher
Education Act, the Secretary is required by Section 432(o) of the
Higher Education Act to pay otherwise valid insurance claims submitted
directly to the Secretary by FFELP lenders on loans insured by such
Guaranty Agency in the full amount of the Guaranty Agency's insurance
obligation thereon and in accordance with insurance requirements no
more stringent than those of the Guaranty Agency.
(o) The Representative shall have received certificates 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 Secretary, the Assistant Secretary, the
principal financial officer or the principal accounting officer of NMELC in
which such officers shall state that, to the best of their knowledge after
reasonable investigation, (i) the representations and warranties of NMELC
contained in the Trust Agreement, the Loan Sale Agreement, the Administration
Agreement and the Master Servicing Agreement are true and correct in all
material respects, that each of NMELC 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, that no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are contemplated by the Commission, and
(ii) since June 30, 1999, except as may be disclosed in the Prospectus or in
such certificate, no material adverse change, or any development involving a
prospective material adverse change, in or affecting particularly the business
or properties of the Trust, NMF or NMELC, as applicable, has occurred.
(p) The Representative shall have received evidence satisfactory to it
that, on or before the Closing Date, UCC-1 financing statements have been or are
being filed in the offices
16
of the Secretaries of State of the States of Delaware, Massachusetts and Rhode
Island reflecting the transfer of the interest of NMELC in the Trust Loans to
the Eligible Lender Trustee on behalf of the Trust and the proceeds thereof to
the Trust and the grant of the security interest by the Trust in the Trust Loans
and the proceeds thereof to the Indenture Trustee.
(q) Each class of the Notes shall be rated [______] by the Rating
Agencies and neither Rating Agency shall have placed the Notes or the
Certificates under surveillance or review with possible negative implications.
(r) The issuance of the Notes and the Certificates shall not have
resulted in a reduction or withdrawal by either Rating Agency of the current
rating of any outstanding securities issued or originated by NMELC or any of its
affiliates.
NMELC will provide or cause to be provided to the
Representative such conformed copies of such of the foregoing opinions,
certificates, letters and documents as the Representative reasonably requests.
7. INDEMNIFICATION AND CONTRIBUTION. (a) NMELC and Xxxxxx Xxx
Corporation will indemnify and hold each Underwriter harmless against any
losses, claims, damages or liabilities to which such Underwriter may become
subject under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the preliminary Base Prospectus, the Preliminary
Prospectus Supplement (if any), the Base Prospectus or the Prospectus or any
amendment or supplement thereto, or arise out of or are 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, 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; PROVIDED,
HOWEVER, that NMELC and Xxxxxx Xxx Corporation will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to NMELC by any Underwriter
specifically for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless NMELC against any losses, claims, damages or liabilities to
which NMELC may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the preliminary Base
Prospectus, the Preliminary Prospectus Supplement (if any), the Base Prospectus
or the Prospectus or any amendment or supplement thereto or arise out of or are
based upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information relating to such
Underwriter furnished to NMELC by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by NMELC
17
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. 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), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by the indemnified party of the counsel appointed
by the indemnifying party, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. In no event shall the
indemnifying party be liable for fees and expenses for more than one counsel
separate from its own counsel for all indemnified parties in connection with any
one action or related actions in the same jurisdiction arising out of the same
general allegations or circumstances unless any such indemnified party shall
have been advised by such 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 other indemnified parties and in the reasonable judgment
of such counsel it is advisable for such indemnified party to employ separate
counsel. An indemnifying party will not, without the prior written consent of
the indemnified party, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by NMELC on the one
hand and the Underwriters on the other from the offering of the Securities 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
NMELC on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by NMELC on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) of the Securities received by NMELC bear to
the total underwriting discounts and commissions applicable to the Securities
18
received by the Underwriters. The relative fault 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 NMELC or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the underwriting discount or commission applicable
to the Notes underwritten by it exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The obligations of each of the Underwriters to
contribute are several in proportion to their respective underwriting
obligations and are not joint.
(e) The obligations of NMELC under this Section shall be in addition to
any liability which NMELC may otherwise have and shall extend, upon the same
terms and conditions, to each Person, if any, who controls any Underwriter
within the meaning of the Act or the Exchange Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of NMELC, to each officer of NMELC who has
signed the Registration Statement and to each Person, if any, who controls NMELC
within the meaning of the Act or the Exchange Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter participating in the
offering of the Securities defaults in its obligation hereunder to purchase the
aggregate principal amounts of the Securities set forth in Schedule I hereto and
the aggregate principal amount of such Securities which such defaulting
Underwriter agreed, but failed, to purchase does not exceed 10% of the total
principal amount of the Securities, the Representative may make arrangements
satisfactory to NMELC for the purchase of such Securities by other Persons, but
if no such arrangements are made within a period of 36 hours after the Closing
Date, the non-defaulting Underwriters shall be obligated, in proportion to their
respective total commitment hereunder, to purchase the Securities which such
defaulting Underwriter agreed but failed to purchase. If any Underwriter so
defaults and the aggregate principal amount of Securities with respect to which
such default occurs is more than 10% of the total principal amount of the
Securities and arrangements satisfactory to the Representative and NMELC for the
purchase of such Securities by other Persons are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of the
non-defaulting Underwriters or NMELC, except as provided in Section 9. As used
in this Agreement, the term "Underwriter" includes any Person substituted for
any Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of
NMELC or its officers and of the
19
several Underwriters set forth in or made pursuant to this Agreement or
contained in certificates of officers of NMELC 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 any Underwriter,
NMELC or any of their respective representatives, officers or directors or any
controlling Person, and will survive delivery of and payment for the Securities.
If for any reason the purchase of the Securities by the Underwriters is not
consummated, NMELC shall remain responsible for the expenses to be paid or
reimbursed by NMELC pursuant to Section 5 hereof and the respective obligations
of NMELC and the Underwriters pursuant to Section 7 hereof shall remain in
effect. If for any reason the purchase of the Securities by the Underwriters is
not consummated (other than because of a failure to satisfy the conditions set
forth in items (iii), (v) and (vi) of Section 6(c) hereof), NMELC will reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Securities.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telecopied and confirmed
to the Representative at 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Student Loan Group; if sent to NMELC, will be mailed,
delivered or telecopied, and confirmed to NMELC at Xxxxxx Xxx Education Loan
Corporation at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxx 00000, with a copy
to the Office of the General Counsel, Xxxxxx Xxx Corporation, 00 Xxxxxxxxx Xxxx
Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: General Counsel;
PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section 7
hereof will be mailed, delivered or telecopied and confirmed to such
Underwriter. Any such notice will take effect at the time of receipt.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling Persons referred to in Section 7 hereof, and no
other Person will have any right or obligations hereunder.
12. REPRESENTATION OF UNDERWRITERS. The Representative shall act for
the several Underwriters in connection with this financing, and any action taken
by the Representative will be binding upon all the Underwriters.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. This Agreement will be governed by, and construed
in accordance with, the laws of the State of New York without regard to the
conflicts of law principles thereof.
20
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement between NMELC
and the several Underwriters in accordance with its terms.
Very truly yours,
XXXXXX XXX EDUCATION LOAN CORPORATION
By:
------------------------------------------
Name:
Title:
The foregoing Underwriting
Agreement is hereby
confirmed and accepted as
of the date first written
above.
[Name of Representative]
Acting on behalf of itself and as
Representative of the several Underwriters
By:
---------------------------------------
Name:
Title:
SCHEDULE I
UNDERWRITER CLASS A-1 NOTES CLASS A-2 NOTES CERTIFICATES
[Name of Representative]................................. $ $ $
Price to Public.......................................... 100.00% 100.00% 100%
Underwriting Discount and Commissions.................... % % %
Purchase Price........................................... $ $ $
APPENDIX A
[See Appendix A to the Administration Agreement]
B-1
