Exhibit 99.5
, dated as of , 200 , among NELNET STUDENT
LOAN TRUST (the "Issuer"), NATIONAL EDUCATION LOAN NETWORK, INC., as
administrator (the "Administrator"), and (" ", " " and
" ", respectively, in their capacities as remarketing agents under this
, each, a "Remarketing Agent" and, collectively, the
"Remarketing Agents").
WHEREAS, the Issuer has issued aggregate principal amount of its
Class Notes (the "Notes") pursuant to an Indenture of Trust, dated as
of , (the "Indenture"), among the Issuer, , as eligible lender
trustee (in such capacity, the "Eligible Lender Trustee") and as trustee (in
such capacity, the "Trustee");
WHEREAS, the Notes are being sold initially pursuant to an Underwriting
Agreement, dated , (the "Underwriting Agreement"), among Nelnet
Student Loan Funding, LLC (the "Depositor"), ,
, ,
, , , and ,
and , as representatives of the other underwriters named therein (the
"Underwriters");
WHEREAS, the Administrator has requested that , and
act as initial Remarketing Agents in connection with the Notes
and as such to perform the services described in this ;
WHEREAS, the Depositor has prepared a Free-Writing Prospectus, dated
, , a Term Sheet, dated , ,
a Prospectus, dated , , ,
and a Prospectus Supplement, dated , (the Prospectus and Prospectus Supplement
dated , are referred to collectively as the "Prospectus"), in connection with
the offering of the Notes; and
WHEREAS, each of , and is willing to
act as a Remarketing Agent in connection with the Notes, and as such each hereby
agrees to perform such duties on the terms and subject to the conditions set
forth in this .
NOW, THEREFORE, the parties to this agree as
follows:
SECTION 1. DEFINITIONS. Capitalized terms used and not defined in this
have the respective meanings assigned to them in Article I
of the Indenture and Article I of Appendix A to the Indenture. Unless the
context otherwise requires, references in this to "Notes"
relate solely to the Class Notes issued under the Indenture.
SECTION 2. APPOINTMENT AND OBLIGATIONS OF REMARKETING AGENTS.
(a) Subject to Section 4 hereof, the Administrator hereby appoints each
of , and , and each of , and
hereby accepts such appointment, as the exclusive Remarketing Agents for the
purpose of:
(i) determining, in consultation with the Administrator, for
each Reset Period the applicable Spread above or below the applicable
index (if the Notes will be in a floating rate mode during the next
Reset Period), determining, in consultation with the Administrator, for
each Reset Period the applicable initial Auction Rate (if the Reset Rate
Notes will be in an auction rate mode during the next Reset Period), or
determining the fixed rate of interest (if the Notes will be in a fixed
rate mode during the next Reset Period), as applicable (in each case, as
specified in the applicable Supplemental Remarketing Agency Agreement,
as defined below), at a rate that, in the reasonable opinion of the
Remarketing Agents, will enable the Remarketing Agents to remarket
tendered Notes (whether mandatory or voluntary) at 100% of the principal
amount thereof and on the terms of the Notes determined as set forth in
Section 2.03(c) of the Reset Rate Note Procedures;
(ii) entering into a remarketing agency agreement on the related
Remarketing Terms Determination Date with the Issuer and the
Administrator, substantially in the form attached as Appendix A hereto
(a "Remarketing Agency Agreement"), and a supplemental remarketing
agency agreement on the related Spread Determination Date with the
Issuer and the Administrator, substantially in the form attached as
Appendix B hereto (a "Supplemental Remarketing Agency Agreement"),
pursuant to which the Remarketing Agents will attempt, on a reasonable
efforts basis, to remarket the Notes tendered by the beneficial owners
thereof (the "Beneficial Owners") (each such attempted and/or completed
remarketing being hereinafter referred to as a "Remarketing");
(iii) determining, in consultation with the Administrator, the
applicable currency (U.S. Dollars, Euros, Pounds Sterling or another
currency) in which the Notes will be payable during the next Reset
Period;
(iv) determining, in consultation with the Administrator,
whether it would be in the best interests of the Issuer to enter into a
Derivative Product if the Notes will be denominated in a currency other
than U.S. Dollars or will bear interest at a fixed rate or a floating
rate other than LIBOR and, if applicable, selecting the Eligible
Counterparty or Counterparties with which the Issuer will enter into one
or more Derivative Products on the related Reset Date;
(v) preparing a written notice to the applicable Clearing
Agencies and any other relevant parties setting forth the applicable
Spread or fixed rate of interest, as the case may be, any applicable
currency exchange rate and any other required reset terms;
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(vi) delivering the related Hold Notices and any other notices
as provided under the Reset Rate Note Procedures; and
(vii) performing such other duties as are assigned to the
Remarketing Agents in this , including in the Reset
Rate Note Procedures attached as Appendix C hereto, and/or in the
applicable Remarketing Agency Agreement and Supplemental Remarketing
Agency Agreement, in each case subject to the conditions set forth
herein and therein.
(b) With respect to any Reset Date, the Remarketing Agents shall not
enter into the Remarketing Agency Agreement with the Issuer and the
Administrator if, on or prior to the Remarketing Terms Determination Date: (i) a
Failed Remarketing shall have been declared with respect to the related Class of
Notes subject to Remarketing on such Reset Date; (ii) the related Call Option
Notice shall have been timely delivered with respect to the related Class of
Notes subject to a Remarketing or (iii) the Notes are being redeemed pursuant to
provisions of Section 2.13 of the Indenture. In addition, the Remarketing Agents
shall not enter into the Supplemental Remarketing Agency Agreement with the
Issuer and the Administrator if, on or prior to the Spread Determination Date:
(A) a Failed Remarketing shall have been declared with respect to the related
Class of Notes subject to Remarketing on such Reset Date; (B) the related Call
Option Notice shall have been timely delivered with respect to the related Class
of Notes subject to Remarketing; (C) the Notes are being redeemed pursuant to
the provisions of Section 2.13 of the Indenture; or (D) if applicable, 100% of
the holders of the related Class of Notes subject to Remarketing on such Reset
Date have timely delivered a Hold Notice and the All Hold Rate will apply for
the next related Reset Period.
(c) Only Notes not subject to an exercised Call Option shall be subject
to Remarketing on such Reset Date.
SECTION 3. FEES AND EXPENSES.
(a) The Issuer acknowledges and agrees that the fees to be paid to the
Remarketing Agents in connection with any Reset Date shall be calculated
consistent with and at a rate no higher than as set forth in Appendix D hereto
and agreed upon by the Administrator and the Remarketing Agents, and set forth
in the applicable Remarketing Agency Agreement. Such fees shall be expressed as
a percentage of the Outstanding Amount of the applicable Class of Notes and
payable except in the case of a Failed Remarketing; provided, that the
obligations of the Issuer to pay to the Remarketing Agents on each Reset Date
the fees set forth in the applicable Remarketing Agency Agreement shall be
solely payable from amounts available for distribution pursuant to Sections
5.04(c) and 5.06 of the Indenture on each Reset Date. The Issuer's obligations
to pay the fees as described in the preceding sentence shall survive until the
earlier to occur of the date such fees have been paid in full or the date the
Issuer is terminated. The Issuer will pay all expenses in connection with this
, the Remarketing Agency Agreement and the Supplemental
Remarketing Agency Agreement, as applicable, to the extent funds are available
for distribution pursuant to Sections 5.04(c) and 5.06 of the Indenture on such
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Reset Date, including: (i) the preparation, printing and delivery of the
Remarketing Prospectus (as defined below) in connection with the Remarketing of
the Notes; (ii) the preparation and delivery of the Remarketing Agency Agreement
and the Supplemental Remarketing Agency Agreement, as applicable, and such other
documents as may be required in connection with the Remarketing of the Notes;
(iii) the fees and disbursements of the Issuer's or the Administrator's
accountants, counsel and other advisors or agents and the fees and disbursements
of the Trustee including, without limitation, the fees of the Issuer's counsel
incurred in connection with the delivery of the Tax Opinion (as defined below);
(iv) the out-of-pocket expenses of the Remarketing Agents to the extent
described in subsection (b) of this Section; (v) fees charged by nationally
recognized statistical rating organizations, if any, if necessary to satisfy the
Rating Agency Condition; (vi) the fees payable to any exchange in connection
with the listing of Notes subject to Remarketing on the related Reset Date on
such exchange; and (vii) any other fees and expenses, if applicable, in
connection with compliance with Section 7(f) hereof; provided, however, that if
the holder of the related Call Option has exercised such Call Option, then for
each Remarketing relating to that Class of Notes (including the Remarketing on
which such Call Option was exercised), until the holder of the Call Option has
sold all of that Class of Notes, the holder of the Call Option shall be
obligated to pay such expenses. If sufficient funds are not available pursuant
to Sections 5.04(c) and 5.06 of the Indenture or the holder of the Call Option
fails to pay such expenses, as applicable, the Administrator shall pay such
expenses on behalf of the Issuer and shall be entitled to reimbursement pursuant
to Sections 5.04(c) and 5.06 of the Indenture.
(b) If there is a Failed Remarketing, the Issuer shall reimburse the
Remarketing Agents for all out-of-pocket expenses, other than fees and
disbursements of counsel, reasonably incurred by the Remarketing Agents in
making preparations for Remarketing and attempting to remarket the Notes subject
to a Failed Remarketing.
SECTION 4. REMOVAL OR RESIGNATION OF THE REMARKETING AGENTS; APPOINTMENT OF
ADDITIONAL OR LEAD REMARKETING AGENTS.
(a) Subject to the terms and on the conditions of this Remarketing
Agreement, with respect to any Reset Period, the Administrator may, in its
absolute discretion, remove any Remarketing Agent by giving notice to the
Remarketing Agent no less than five Business Days prior to the Remarketing Terms
Determination Date applicable thereto. If such removal would result in no
Remarketing Agents remaining, such removal shall be effective only upon the
Administrator's appointment of at least one successor Remarketing Agent. In such
case, the Administrator shall use its best efforts to appoint a successor
Remarketing Agent and enter into a remarketing agreement with such successor
Remarketing Agent as soon as reasonably practicable, but in no event later than
the applicable Remarketing Terms Determination Date. In addition, the
Administrator may appoint one or more additional remarketing agents, if
necessary, with respect to any Reset Period during which a Class of Notes
subject to Remarketing on the related Reset Date will be remarketed in a
non-U.S. Dollar currency.
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(b) Each of the Remarketing Agents may resign and be discharged from any
duties and obligations under this Remarketing Agreement at any time by
delivering a written notice to the Administrator of such resignation, provided
such resignation shall not be effective any later than 15 calendar days prior to
the next Remarketing Terms Determination Date (which Remarketing Terms
Determination Date for this purpose shall be deemed to be the twelfth Business
Day prior to the applicable Reset Date). It shall be the sole responsibility of
the Administrator to appoint a successor Remarketing Agent if such resignation
would result in there being no Remarketing Agents remaining.
(c) The Administrator may, in its absolute discretion, designate a lead
Remarketing Agent for any Class of Notes subject to Remarketing by giving notice
to the Remarketing Agents no less than five Business Days prior to the
Remarketing Terms Determination Date applicable thereto.
SECTION 5. DEALING IN THE NOTES. Subject to its compliance with
applicable laws and regulations, each Remarketing Agent and its Affiliates
acting as such or in its individual or any other capacity, may buy, sell, hold
and deal in any of the Notes. Each Remarketing Agent and its Affiliates shall
also have the option, but not the obligation, to purchase any tendered Notes
that they are not otherwise able to remarket at a price equal to 100% of the
Outstanding Amount of such tendered Notes. A Remarketing Agent or any of its
Affiliates that owns a Note may exercise any vote or join in any action which
any Noteholder of that Class or Beneficial Owner of such Notes may be entitled
to exercise or take pursuant to the Indenture with like effect as if it did not
act in any capacity under this Remarketing Agreement. Each Remarketing Agent and
its Affiliates, in its individual capacity, either as principal or agent, may
also engage in or have an interest in any financial or other transaction with
the Issuer, the Depositor, the Servicer, the Trustee, the Eligible Lender
Trustee or the Administrator as freely as if such Remarketing Agent did not act
in any capacity under this Remarketing Agreement.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
(a) The Administrator represents and warrants to, and agrees with, each
of the Remarketing Agents as of the date of this Remarketing Agreement, and as
of each Remarketing Terms Determination Date, Spread Determination Date and
Reset Date (each such date being hereafter referred to as a "Representation
Date"), that as of each applicable Representation Date after the date of this
Remarketing Agreement, the related Remarketing Materials (as defined in this
Remarketing Agreement) will not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(b) The Administrator further represents and warrants to, and agrees
with, each of the Remarketing Agents as of each Representation Date as follows:
(i) The Issuer has not sustained since the respective dates as
of which information is given in the Remarketing Materials any material
loss or interference with its business or properties, otherwise than as
set forth or contemplated in such Remarketing Materials; and, since such
dates, there has not been any material adverse change or any development
involving a prospective material adverse change, in or affecting the
business or properties of the Issuer or the transactions contemplated
hereby, otherwise than as set forth or contemplated in such Remarketing
Materials.
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(ii) The Issuer has been duly formed and is validly existing as
a statutory trust in good standing under the laws of the State of
Delaware, with power and authority to own its properties and conduct its
business as described in the Remarketing Materials and to consummate the
transactions contemplated therein and in this Remarketing Agreement. The
Administrator has been duly incorporated and is validly existing under
the laws of the State of Nevada, with power and authority (corporate and
otherwise) to consummate the transactions contemplated in the
Remarketing Materials and in this Remarketing Agreement.
(iii) The Notes have been duly authorized, issued and delivered
pursuant to the Underwriting Agreement. The Notes constitute valid and
legally binding obligations of the Issuer entitled to the benefits
provided by the Indenture. The Indenture has been duly authorized,
executed and delivered and duly qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"). The Indenture and the
Basic Documents each constitute a valid and legally binding instrument,
enforceable against the Issuer or the Administrator, as applicable, in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(iv) The compliance by the Issuer and the Administrator with all
of the provisions of the Notes, the Indenture, the Basic Documents, the
Derivative Products, this Remarketing Agreement and the applicable
Remarketing Agency Agreement or Supplemental Remarketing Agency
Agreement, as the case may be, and the consummation of the transactions
in this Remarketing Agreement and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default in the performance or observance
of any material obligation contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Issuer or the Administrator is a party or by which the Issuer or the
Administrator is bound or to which any of the property or assets of the
Issuer, or the Administrator is subject, nor will such action result in
any violation of the provisions of the Basic Documents, the
Administrator's certificate of incorporation or by-laws, or any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Issuer or the Administrator or any of
their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation by the Issuer or the
Administrator of the transactions contemplated by this Remarketing
Agreement, the applicable Remarketing Agency Agreement or Supplemental
Remarketing Agency Agreement, as the case may be, or the Indenture,
except such as have been, or shall have been, obtained.
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(v) The Administrator is not in violation of its certificate of
incorporation or by-laws, and the Issuer is not in violation of the
Trust Agreement, and neither the Administrator nor the Issuer is in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be
bound.
(vi) Other than as set forth in the Remarketing Materials or in
the financial statements included as Appendix A to Nelnet, Inc.'s most
recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
applicable, filed with the Commission, there are no legal or
governmental proceedings pending to which the Issuer or the
Administrator or any of its subsidiaries is a party or of which any
property of the Issuer or the Administrator or any of its subsidiaries
is the subject which, if determined adversely to the Issuer or the
Administrator or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consummation of the
transactions contemplated hereby or the ability of the Administrator to
perform all of its obligations with respect to the Issuer; and, to the
best of the Administrator's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(vii) The Issuer is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
(viii) Each of this Remarketing Agreement and the applicable
Remarketing Agency Agreement, and Supplemental Remarketing Agency
Agreement, as the case may be, has been duly authorized, executed and
delivered by the Issuer and the Administrator and, assuming it has been
duly executed and delivered by the Remarketing Agents, constitutes a
valid and binding agreement of the Issuer and the Administrator,
enforceable against each of the Issuer and the Administrator in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers, reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally) and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law), and except further as the enforcement thereof may be
subject to limitations on rights to indemnity or contribution or both by
Federal or state securities laws or the public policies underlying such
laws.
(ix) The Notes have such ratings as to which either the
Administrator shall have most recently notified the Remarketing Agents
pursuant to Section 7(a) hereof or as are otherwise available to the
Remarketing Agents in the ordinary course.
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Any certificate signed by any officer of the Issuer or Administrator and
delivered to the Remarketing Agents or to counsel for the Remarketing Agents in
connection with the Remarketing of the Notes shall be deemed a representation
and warranty by the Issuer or Administrator to the Remarketing Agents as to the
matters covered thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
(c) In connection with each Remarketing, each Remarketing Agent hereby
represents and warrants to, and agrees with, the Issuer and the Administrator
(i) that it has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to engage
in investment activity, within the meaning of section 21 of the Financial
Services and Markets Act 2000 (the "FSMA"), received by it in connection with
the Remarketing of the Notes in circumstances in which section 21(1) of the FSMA
does not apply to the Issuer, and it has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by it in
relation to the Remarketing of Notes in, from or otherwise involving the United
Kingdom and (ii) that it is not affiliated, directly or indirectly, with the
Depositor.
SECTION 7. COVENANTS OF THE ADMINISTRATOR. The Administrator covenants
with the Remarketing Agents as follows:
(a) The Administrator shall provide prompt notice by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), to the Remarketing Agents of (i) if not otherwise available to
the Remarketing Agents, any notification or announcement by a "nationally
recognized statistical rating organization" (as defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act) with regard to the ratings
of any securities of the Issuer, including, without limitation, notification or
announcement of a downgrade in or withdrawal of the rating of any security of
the Issuer or notification or announcement of the placement of any rating of any
securities of the Issuer under surveillance or review, including placement on
CreditWatch or on Watch List with negative implications, or (ii) the occurrence
at any time of any event set forth in Section 8(c) (i), (ii), (iii), (v), (vi)
or (viii) hereof.
(b) With respect to each Reset Date (unless the Call Option Notice is
delivered or the Notes are to be redeemed) the Administrator will furnish to the
Remarketing Agents:
(i) if required pursuant to Section 7(f) hereof, the Remarketing
Prospectus (as defined below);
(ii) if a mandatory tender of the related Notes occurs with
respect to the related Reset Date or the related Reset Date follows the
purchase of the related Notes pursuant to the Call Option, a written
opinion of U.S. Federal income tax counsel to the Issuer, reasonably
satisfactory to the Remarketing Agents, dated as of the related Reset
Date resulting in a successful Remarketing (other than a Reset Date
where the All Hold Rate is applicable), that the related Notes
constitute indebtedness and also opining as to any other tax-related
issues with respect to the related Class of Notes as to which an opinion
is reasonably requested by a Remarketing Agent (the "Tax Opinion");
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(iii) if applicable, an amendment to the documents on file with
the Irish Stock Exchange relating to the Notes;
(iv) during any such time as the Issuer is subject to the
reporting requirements of the Exchange Act, each document filed by the
Issuer with the Commission pursuant to the Exchange Act and the rules
and regulations thereunder; and
(v) (A) in connection with each Remarketing of Notes,
such other information as the Remarketing Agents may reasonably
request from time to time, and such other documentation,
representations, warranties and certifications as the
Remarketing Agents may reasonably request as a result of a
change of law, it being understood that each Remarketing Agent
will deliver to purchasers and prospective purchasers, in
connection with a Remarketing, a Remarketing Prospectus;
(B) The Administrator shall provide each of the
Remarketing Agents with as many copies of the foregoing written
materials and other Administrator approved information,
including the Remarketing Prospectus, as the Remarketing Agents
may reasonably request for use in connection with the
Remarketing of the Notes and consents to the use thereof for
such purpose; and
(C) In addition, in connection with a Remarketing, upon
the reasonable request and at the expense of the Remarketing
Agents, the Issuer and the Administrator shall provide to the
Remarketing Agents the opportunity to conduct a due diligence
investigation of the Issuer and the Administrator similar to the
due diligence investigation provided for in subsection (f)(ii)
of this Section or shall participate in a due diligence
conference call for the purpose of conducting such due diligence
investigation.
(c) If, at any time during which the Remarketing Agents would be
obligated to take any action under this Remarketing Agreement, any event or
condition known to the Administrator relating to or affecting the Issuer, the
Administrator or the Notes shall occur which could reasonably be expected to
cause any of the reports, documents, materials or information referred to in
subsection (b) of this Section or any document incorporated therein by reference
(collectively, the "Remarketing Materials") to contain an untrue statement of a
material fact or omit to state a material fact, the Administrator shall promptly
notify the Remarketing Agents in writing of the circumstances and details of
such event or condition.
(d) So long as the Notes are outstanding and the Issuer is required to
file reports under the Exchange Act, the Issuer will file all documents required
to be filed with the Commission pursuant to the Exchange Act within the time
periods required by the Exchange Act and the rules and regulations thereunder.
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(e) If, at any time in connection with a Remarketing a determination is
made by the Administrator to offer the Reset Rate Notes pursuant to an exemption
from registration under the Securities Act, the Administrator and the
Remarketing Agents shall take such actions in order to comply with the
requirements of the Securities Act or the rules and regulations thereunder and
the Commission's interpretations of the Securities Act and the Securities Act
Regulations in connection with such Remarketing and resales of the Reset Rate
Notes.
(f) The Issuer will comply with the Securities Act and the Securities
Act Regulations, the Exchange Act and the Exchange Act Regulations and the Trust
Indenture Act and the rules and regulations of the Commission thereunder so as
to permit the completion of the Remarketing of the Notes as contemplated in this
Remarketing Agreement and in the Prospectus. In furtherance of the foregoing,
the Administrator shall take the actions provided for in this subsection (f) if
counsel for the Remarketing Agents or for the Issuer reasonably requests in
writing, stating their reasoned legal justifications therefore, that the
Administrator take such actions in order to comply with the requirements of the
Securities Act or the Securities Act Regulations and the Commission's
interpretations of the Securities Act and the Securities Act Regulations in
connection with the Remarketing and resales of the Notes:
(i) The Administrator shall, to the extent then required by the
Commission (A) prepare and file with the Commission and furnish to the
Remarketing Agents a then currently effective registration statement
under the Securities Act and a then current preliminary and final
prospectus, meeting the requirements of the Securities Act, relating to
the Notes, to be used by the Remarketing Agents for Remarketing and
resale of the Notes (such registration statement and any amendments
thereto, including any such preliminary and final prospectus relating to
the Notes constituting a part thereof, and all documents incorporated
therein by reference, as from time to time amended or supplemented
pursuant to the Exchange Act, the Securities Act, or otherwise, are
referred to in this Remarketing Agreement as the "Registration
Statement" and the "Remarketing Prospectus," respectively, except that
if any revised prospectus shall be provided to the Remarketing Agents by
the Issuer for use in connection with the Remarketing of the Notes which
differs from the Remarketing Prospectus on file at the Commission at the
time the Registration Statement becomes effective, the term "Remarketing
Prospectus" shall refer to such revised prospectus from and after the
time it is first provided to the Remarketing Agents for such use), (B)
furnish to the Remarketing Agents an officers' certificate, an opinion
(including a statement as to the absence of material misstatements in or
omissions from the Registration Statement and Remarketing Prospectus, as
amended or supplemented) of counsel for the Issuer and the Administrator
satisfactory to the Remarketing Agents and a "agreed-upon procedures
letter" from the Issuer's independent accountants, in each case in form
and substance satisfactory to the Remarketing Agents, of the same tenor
as the officers' certificate, opinion and comfort letter, respectively,
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delivered pursuant to the Underwriting Agreement, but modified to relate
to the Registration Statement and Remarketing Prospectus as amended or
supplemented to the date thereof, and as customary for a public offering
of asset-backed securities, (C) comply with covenants and procedures,
and issue representations and warranties, of the same tenor as those set
forth in the Underwriting Agreement, but modified to relate to the
Registration Statement and the Remarketing Prospectus and the
Remarketing and as customary for a public offering of asset-backed
securities; provided, that, if in the opinion of counsel for the Issuer
or the Remarketing Agents, in either case reasonably satisfactory to the
Remarketing Agents, no exemption from registration under the Securities
Act is available and registration would be required under the Securities
Act in connection with the Remarketing, then, in lieu thereof, the
Administrator may request that the Remarketing Agents, and the
Remarketing Agents shall, terminate this Remarketing Agreement pursuant
to Section 11 hereof and declare a Failed Remarketing; and (D) furnish
to the Remarketing Agents such other opinions, documents or certificates
as are reasonably requested by the Remarketing Agents, provided the
Remarketing Agents request any such other opinions, documents or
certificates no later than 20 Business Days prior to the applicable
Remarketing Terms Determination Date.
(ii) The Issuer and the Administrator shall provide to the
Remarketing Agents and any other broker-dealer participating in the
Remarketing of the Notes the opportunity to conduct an underwriter's due
diligence investigation of the Issuer and the Administrator in a scope
customarily provided in connection with a public offering of the
Issuer's securities, which shall include making available for inspection
by representatives of the Remarketing Agents, and any counsel retained
by the Remarketing Agents, financial information related to the Issuer's
assets comparable to that furnished to the Underwriters that is
reasonably requested by any such Persons and use their reasonable best
efforts to cause the officers, directors, employees, and any other
agents of the Issuer and the Administrator to supply all information
reasonably requested by any such representatives of the Remarketing
Agents or counsel in connection with the Remarketing, and make such
representatives of the Issuer and the Administrator available for
discussion of such documents as shall be reasonably requested by the
Remarketing Agents.
(iii) If at any time when a Remarketing Prospectus is required
by the Securities Act to be delivered in connection with Remarketing and
resales of the Notes, any event shall occur or condition shall exist as
a result of which it is necessary, in the opinion of counsel for the
Remarketing Agents or for the Issuer, to amend the Registration
Statement or amend or supplement the Remarketing Prospectus in order
that the Remarketing Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order
to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, the
Administrator, on behalf of and at the expense of the Issuer, will
promptly prepare and file with the Commission and furnish to the
Remarketing Agents such amendment or supplement as may be necessary to
correct such statement or omission as referred to above.
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(iv) If applicable, the Administrator agrees to provide the
Remarketing Agents with as many copies of the foregoing Remarketing
Prospectus, or, as the case may be, Registration Statement, as the
Remarketing Agents may reasonably request for use in connection with the
Remarketing of Notes and consents to the use therefor for such purpose.
(g) The Administrator shall timely notify the Remarketing Agents of any
Rating Agency Condition that must be satisfied as a condition precedent to the
taking of any action under this Remarketing Agreement and timely provide the
Remarketing Agents with copies of the required confirmations or reaffirmations,
as the case may be.
SECTION 8. CONDITIONS TO THE REMARKETING AGENTS' OBLIGATIONS. The
obligations of each of the Remarketing Agents to perform its duties under this
Remarketing Agreement shall be subject to:
(a) the terms and conditions of the applicable Remarketing Agency
Agreement or Supplemental Remarketing Agency Agreement, as the case may be;
(b) the due performance in all material respects by each of the Issuer
and the Administrator of its obligations and agreements as set forth in this
Remarketing Agreement and the accuracy of the representations and warranties in
this Remarketing Agreement and any certificate delivered pursuant to this
Remarketing Agreement; and
(c) the further condition that none of the following events shall exist
for a Class of Notes at any time between a Remarketing Terms Determination Date
and Reset Date, or, with respect to clause (iv) below, at the time set forth in
such clause:
(i) all of the Notes for which the Remarketing Agents are
responsible for Remarketing under this Remarketing Agreement shall be
the subject of a Call Option Notice or a redemption;
(ii) without the prior written consent of the Remarketing
Agents, the Indenture, the Notes or any Derivative Product relating to
the Notes shall have been amended in any manner, or otherwise contain
any provisions not contained therein as of the date of this Remarketing
Agreement, that in either case in the reasonable opinion of the
Remarketing Agents materially changes the nature of the Notes or the
Remarketing procedures (it being understood that notwithstanding the
provisions of this clause (ii) the Issuer and the Administrator shall
not be prohibited from amending such documents);
(iii) the rating of any securities of the Issuer shall have been
down-graded or put under surveillance or review, including being put on
CreditWatch or Watch List with negative implications, or withdrawn by a
nationally recognized statistical rating organization;
12
(iv) if the Remarketing Agents exercise their option under
Section 5 of this Remarketing Agreement to purchase tendered Notes that
they are not otherwise able to remarket, there shall have occurred from
the time of such exercise to the time of such purchase any of the
following: (A) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or other such
exchange on which the Notes are then listed or any setting of minimum
prices for trading on such exchange; (B) a general moratorium on
commercial banking activities declared by any of United States Federal
or New York State authorities, or by The Bank of England or the European
Central Bank, when the Notes are to be reset in a non-U.S. Dollar
currency; or (C) the outbreak or escalation of hostilities involving the
United States or United Kingdom or the declaration by the United States
or the United Kingdom (when the Notes are to be reset in a non-U.S.
Dollar currency) of a national emergency or war; if the effect of any
such event specified in this clause (C) in the reasonable judgment of
the Remarketing Agents makes it impracticable or inadvisable to proceed
with the Remarketing of the Notes on the terms and in the manner
contemplated in this Remarketing Agreement;
(v) an Event of Default (as defined in the Indenture), or any
event which, with the giving of notice or passage of time, or both,
would constitute an Event of Default, with respect to the Notes shall
have occurred and be continuing;
(vi) a material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Issuer, whether or not arising in the ordinary course of business,
shall have occurred;
(vii) if required pursuant to Section 7(f) hereof, the Issuer or
the Administrator shall fail to furnish to the Remarketing Agents on the
Reset Date, the officers' certificate, opinion and comfort letter
referred to therein and such other documents and opinions as counsel for
the Remarketing Agents may reasonably require for the purpose of
enabling such counsel to pass upon the sale of Notes in the Remarketings
as in this Remarketing Agreement contemplated and related proceedings,
or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the
conditions, contained in this Remarketing Agreement; or
(viii) any Rating Agency Condition shall not have been timely
satisfied.
SECTION 9. INDEMNIFICATION.
(a) The Administrator shall indemnify and hold harmless each of the
Remarketing Agents and each Person, if any, who controls a Remarketing Agent
within the meaning of Section 20 of the Exchange Act and any director, officer,
employee or affiliate thereof, as follows:
13
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of (A) the failure of the
Administrator on behalf of the Issuer to comply with the requirements of
Section 7(f) hereof, if applicable, or (B) any untrue statement or
alleged untrue statement of a material fact contained in any of the
Remarketing Materials (including in each case any documents incorporated
by reference therein), or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which they were
made, not misleading, or (C) any violation by the Issuer or the
Administrator of, or any failure by the Issuer or the Administrator to
perform any of its obligations under, this Remarketing Agreement,
including the applicable Remarketing Agency Agreement or Supplemental
Remarketing Agency Agreement, or (D) the acts or omissions of each of
the Remarketing Agents in connection with their duties and obligations
in respect of administrative or ministerial functions under this
Remarketing Agreement or pursuant to this Remarketing Agreement,
including, without limitation, the calculation of rates, the giving or
receiving of notices and any determinations with respect to any
Derivative Products, except those that are finally judicially determined
to be due to its gross negligence or willful misconduct;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, commenced or threatened, or any
claim whatsoever arising out of, or based upon, any of items (A) through
(D) of clause (i) of this subsection (a); provided that any such
settlement is effected with the written consent of the Administrator,
which consent shall not be unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Remarketing Agents), reasonably incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever arising out of, or based upon, any of items (A) through (D)
of clause (i) above to the extent that any such expense is not paid
under clause (i) or (ii) above;
provided, however, that this indemnity shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission either made in reliance upon
and in conformity with written information furnished to the Administrator by the
Remarketing Agents expressly for use in the Remarketing Materials or contained
in any Remarketing Materials not approved by the Administrator for use in
connection with the related Remarketing.
(b) Each of the Remarketing Agents, severally and not jointly, shall
indemnify and hold harmless the Issuer, the Administrator and the Depositor from
and against any loss, liability, claim, damage and expense, as incurred, but
only with respect to untrue statements or omissions made in the Remarketing
Materials in reliance upon and in conformity with information furnished to the
Administrator in writing by such Remarketing Agent expressly for use in such
Remarketing Materials and will reimburse any indemnified party for any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action. The indemnity provided for in this
paragraph shall extend upon the same terms and conditions to each Person, if
any, who controls the Administrator within the meaning of Section 20 of the
Exchange Act.
14
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought under this Remarketing Agreement, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability under this Remarketing Agreement to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
Remarketing Agreement. In the case of parties indemnified pursuant to subsection
(a) of this Section, counsel to the indemnified parties shall be selected by the
Remarketing Agents, and, in the case of parties indemnified pursuant to
subsection (b) of this Section, counsel to the indemnified parties shall be
selected by the Administrator. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 9 or Section 10 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission or fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) The indemnity provided for in this Section shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of the Remarketing Agents, and shall survive the termination or
cancellation of this Remarketing Agreement and the Remarketing of any Notes
under this Remarketing Agreement.
SECTION 10. CONTRIBUTION.
(a) If the indemnification provided for in Section 9 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Issuer and the Administrator on
the one hand and the Remarketing Agents on the other hand from the Remarketing
of the Notes pursuant to this Remarketing Agreement and the applicable
Remarketing Agency Agreement and Supplemental Remarketing Agency Agreement, or
(ii) if the allocation provided by clause (i) is not permitted by applicable law
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Issuer and
the Administrator on the one hand and of the Remarketing Agents on the other
hand in connection with the acts, failures to act, statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
15
(b) The relative benefits received by the Issuer and the Administrator,
on the one hand, and the Remarketing Agents, on the other hand, in connection
with the Remarketing of a Class of Notes pursuant to this Remarketing Agreement
and the applicable Remarketing Agency Agreement and Supplemental Remarketing
Agency Agreement, shall, as to the Remarketing to which the applicable losses,
liabilities, claims, damages or expenses relate, be deemed to be in the same
respective proportions as the aggregate principal balance of such Class of Notes
outstanding at the time of such Remarketing bears to the commissions and fees
received by the Remarketing Agents in connection with such Remarketing.
(c) The relative fault of the Issuer and the Administrator on the one
hand and the Remarketing Agents on the other hand shall be determined by
reference to, among other things, the responsibility under this Remarketing
Agreement of the applicable party for any act or failure to act relating to the
losses, liabilities, claims, damages or expenses incurred or, in the case of any
losses, liabilities, claims, damages or expenses arising out of any untrue or
alleged untrue statement of a material fact contained in any of the Remarketing
Materials or the omission or alleged omission to state a material fact
therefrom, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Issuer or the Administrator or by the Remarketing
Agents and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(d) The Administrator and the Remarketing Agents agree that it would not
be just and equitable if contribution pursuant to this Section were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such act or failure to act or
untrue or alleged untrue statement or omission or alleged omission.
(e) Notwithstanding the provisions of this Section, none of the
Remarketing Agents shall be required to contribute any amount in excess of the
amount by which the commissions and fees received by such Remarketing Agent
relating to the Notes remarketed by it and resold to investors exceeds the
amount of any damages which any of the Remarketing Agents would have otherwise
been required to pay by reason of any act or failure to act for which it is
responsible under this Remarketing Agreement or any untrue or alleged untrue
statement or omission or alleged omission.
16
(f) No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(g) For purposes of this Section, each Person, if any, who controls any
of the Remarketing Agents within the meaning of Section 20 of the Exchange Act
shall have the same rights to contribution as the Remarketing Agents, and each
director of the Administrator and each of its officers, and each Person, if any,
who controls the Administrator within the meaning of Section 20 of the Exchange
Act shall have the same rights to contribution as the Administrator. (h) The
obligations of the Remarketing Agents in this Section to contribute are several
in proportion to their respective Remarketing obligations with respect to the
Notes and not joint.
SECTION 11. TERMINATION OF THIS REMARKETING AGREEMENT. Subject to (a)
Section 3 hereof relating to the payment of fees and expenses, (b) Sections 9
and 10 hereof relating to indemnification and contribution and (c) any claims
under this Remarketing Agreement arising out of or relating to any Remarketing
prior to termination, this Remarketing Agreement shall terminate as to any
Remarketing Agent on the effective date of the removal or resignation of such
Remarketing Agent pursuant to Section 4 hereof.
SECTION 12. REMARKETING AGENTS' PERFORMANCE AND DUTY OF CARE. The duties
and obligations of each Remarketing Agent under this Remarketing Agreement shall
be determined solely by the express provisions of this Remarketing Agreement and
the applicable Remarketing Agency Agreement or Supplemental Remarketing Agency
Agreement, as the case may be. No Noteholder or Beneficial Owner of any Note
will have any rights or claims against any Remarketing Agent as a result of such
Remarketing Agent not purchasing that Note.
SECTION 13. GOVERNING LAW. This Remarketing 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 in such state.
SECTION 14. TERM OF AGREEMENT. Unless otherwise terminated in accordance
with the provisions of this Remarketing Agreement, this Remarketing Agreement
shall remain in full force and effect from the date of this Remarketing
Agreement until the first day thereafter on which no Notes are Outstanding.
SECTION 15. SUCCESSORS AND ASSIGNS.
(a) The rights and obligations of the Issuer may not be assigned or
delegated to any other Person without the prior written consent of the
Remarketing Agents. The rights and obligations of the Administrator under this
Remarketing Agreement may be assigned or delegated to any successor
Administrator under the Administration Agreement upon prior notice to the
Remarketing Agents. The rights and obligations of the Remarketing Agents under
this Remarketing Agreement may be assigned or delegated to any Affiliate thereof
without the consent of the Issuer or the Administrator, and to any other Person
with the prior written consent of the Administrator.
17
This Remarketing Agreement shall inure to the benefit of and be binding
upon the Issuer, the Administrator and the Remarketing Agents and their
respective successors and assigns. The terms "successors" and "assigns" shall
not include any purchaser of any Notes merely because of such purchase. The
Administrator may appoint additional Remarketing Agents, which Remarketing
Agents may join in this Remarketing Agreement or a separate agreement in form
and substance substantially similar to this Remarketing Agreement.
(b) Notwithstanding anything to the contrary in Section 15(a) and
Sections 9 and 10 hereof, in the event the rights and obligations of the
Administrator under this Remarketing Agreement are assigned to any successor
Administrator under the Administration Agreement as provided in subsection (a)
of this Section, and the Remarketing Agents receive notice of such assignment
during the period on or after the 15th Business Day prior to a Remarketing Terms
Determination Date, then, unless the Remarketing Agents consent to such
assignment, for purposes of the indemnification and contribution provisions set
forth in Sections 9 and 10 hereof, the then-current Administrator under this
Remarketing Agreement shall remain obligated under the terms of Sections 9 and
10 hereof in respect of the Remarketing effected or Failed Remarketing in
respect of such Remarketing Terms Determination Date.
SECTION 16. HEADINGS. Section headings have been inserted in this
Remarketing Agreement as a matter of convenience of reference only, and it is
agreed that such section headings are not a part of this Remarketing Agreement
and will not be used in the interpretation of any provisions of this Remarketing
Agreement.
SECTION 17. SEVERABILITY. If any provision of this Remarketing Agreement
shall be held or deemed to be or shall, in fact, be invalid, inoperative or
unenforceable as applied in any particular case in any or all jurisdictions
because it conflicts with any provision of any constitution, statute, rule or
public policy or for any other reason, such circumstances shall not have the
effect of rendering the provision in question invalid, inoperative or
unenforceable in any other case, circumstances or jurisdiction, or of rendering
any other provision or provisions of this Remarketing Agreement invalid,
inoperative or unenforceable to any extent whatsoever.
SECTION 18. COUNTERPARTS. This Remarketing Agreement may be executed in
several counterparts, each of which shall be regarded as an original and all of
which shall constitute one and the same document.
SECTION 19. AMENDMENTS. This Remarketing Agreement may be amended by any
instrument in writing signed by each of the parties to this Remarketing
Agreement.
18
SECTION 20. NOTICES. Unless otherwise specified, any notices, requests,
consents or other communications given or made under this Remarketing Agreement
or pursuant to this Remarketing Agreement shall be made in writing or
transmitted by any standard form of telecommunication or by telephone and
confirmed in writing. All written notices shall be deemed to be validly given or
made, if delivered by hand, when so delivered, or if mailed, when mailed
registered or certified mail, return receipt requested and postage prepaid. All
notices by telecommunication (including telephone and facsimile) shall be deemed
to be validly given or made when received. All such notices, requests, consents
or other communications shall be addressed as follows:
if to the Administrator or the Issuer:
National Education Loan Network, Inc., as Administrator
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to :
or to such other address as any of the above shall specify to the other
in writing.
SECTION 21. BENEFIT. Nothing in this Remarketing Agreement, express or
implied, is intended or shall be construed to confer upon or give any Person
other than (i) the parties to this Remarketing Agreement and, (ii) with respect
to the terms of Section 9 hereof, any indemnified party set forth in Section
9(a) or (b) hereof(such indemnified parties being deemed to be third-party
beneficiaries of this Remarketing Agreement to the extent provided in this
Remarketing Agreement) any remedy or claim under or by reason of this
Remarketing Agreement or any term, covenant or condition of this Remarketing
Agreement, all of which shall be for the sole and exclusive benefit of the
parties.
SECTION 22. NO PETITION. Each of the Remarketing Agents and the
Administrator hereby covenants and agrees that it shall not at any time prior to
one year and one day after all Classes of Notes issued by the Issuer under the
Indenture (including the Class A-6 Notes) institute against the Issuer, or join
in any institution against the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency, receivership or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar laws
in connection with any obligations relating to the Notes, the Indenture or this
Remarketing Agreement. The foregoing shall not limit the rights of any party to
this Remarketing Agreement to file any claim in, or otherwise take any action
with respect to, any insolvency proceeding that was instituted against the
Issuer by any Person other than a Remarketing Agent or the Administrator.
19
SECTION 23. NO RECOURSE. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Delaware Trustee (it being
understood and agreed by the parties to this Remarketing Agreement that the
Delaware Trustee has no obligations under this Remarketing Agreement in its
individual capacity), or any certificate or other writing delivered in
connection herewith or therewith, against the Delaware Trustee in its individual
capacity, or any partner, owner, beneficiary, agent, officer, director or
employee of the Delaware Trustee in its individual capacity, or of any successor
or assign thereof.
SECTION 24. LIMITATION OF LIABILITY OF DELAWARE TRUSTEE. Notwithstanding
anything contained herein to the contrary, this instrument has been executed by
, not in its individual capacity but solely in its capacity as
Delaware Trustee, and in no event shall in its individual capacity or any
beneficial owner of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder,
as to which recourse shall be had solely to the assets of the Issuer.
20
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respected officers thereunto duly authorize as of the date first
above written.
NELNET STUDENT LOAN TRUST
By:
,
not in its individual capacity but solely
as Delaware Trustee
By:____________________________
Name:
Title:
NATIONAL EDUCATION LOAN NETWORK, INC.
By:____________________________
Name:
Title:
21
,
as a Remarketing Agent
By:____________________________
Name:
Title:
,
as a Remarketing Agent
By:____________________________
Name:
Title:
,
as a Remarketing Agent
By:____________________________
Name:
Title
By:____________________________
Name:
Title
22
[TO BE REVIEWED AND REVISED BY REMARKETING AGENTS]
APPENDIX A
REMARKETING AGENCY AGREEMENT
[to be executed on the applicable Remarketing Terms Determination Date]
REMARKETING AGENCY AGREEMENT
REMARKETING AGENCY AGREEMENT, dated as of __________ __, ____, (this
"Remarketing Agency Agreement"), among NELNET STUDENT LOAN TRUST (the "Issuer"),
NATIONAL EDUCATION LOAN NETWORK, INC. (the "Administrator") and
and (each, a "Remarketing Agent" and, collectively, the
"Remarketing Agents"). The Remarketing Agents, in consultation with the
Administrator, hereby establish the terms for the Class Reset Rate Notes (the
"Notes") described below with respect to the "Reset Date" on __________ __,
____, in accordance with the terms hereof and of the Remarketing Agreement,
dated as of , , among the Issuer, the Administrator and the Remarketing Agents
(the "Remarketing Agreement"), the terms of which are hereby incorporated by
reference and made a part hereof.
The Remarketing Agents will attempt, on a reasonable efforts basis, to
remarket the validly tendered Notes at a price equal to 100% of the aggregate
principal amount so tendered. There is no assurance that the Remarketing Agents
will be able to remarket the entire principal amount of Notes tendered in a
remarketing. The Remarketing Agents shall also have the option, but not the
obligation, to purchase any tendered Notes at such price. The obligation of the
Remarketing Agents to purchase tendered Notes from the tendering Class
Noteholders will be subject, without limitation, to the conditions set forth in
Section 8 of the Remarketing Agreement.
All capitalized terms not otherwise defined in this Remarketing Agency
Agreement have the respective meanings assigned thereto in the Remarketing
Agreement.
CERTAIN TERMS OF THE NOTES
------------------------------------------------- ------------------------------
Trust: Nelnet Student Loan Trust
------------------------------------------------- ------------------------------
Remarketing Agents and Addresses:
------------------------------------------------- ------------------------------
Title of Notes: Class Reset Rate Notes
------------------------------------------------- ------------------------------
Title of Indenture: Indenture of Trust, dated as o
, ,
as amendedor supplemented from
time to time by and among the
Issuer, the Eligible Lender
Trustee and the Trustee.
------------------------------------------------- ------------------------------
------------------------------------------------- ------------------------------
Eligible Lender Trustee:
------------------------------------------------- ------------------------------
Trustee:
------------------------------------------------- ------------------------------
Current Ratings:
------------------------------------------------- ------------------------------
Xxxxx'x Investors Service, Inc.: _____
------------------------------------------------- ------------------------------
Standard & Poor's Ratings Services: _____
------------------------------------------------- ------------------------------
Fitch Ratings: _____
------------------------------------------------- ------------------------------
Weighted average life of the Notes _____ months
under several assumed prepayment
scenarios:
------------------------------------------------- ------------------------------
Remarketing Terms Determination Date: __________ __, ____
------------------------------------------------- ------------------------------
Hold Notice Date: __________ __
------------------------------------------------- ------------------------------
Spread Determination Date: __________ __
------------------------------------------------- ------------------------------
Reset Date: __________ __
------------------------------------------------- ------------------------------
Reset Period and next succeeding Reset Date: __________ __
------------------------------------------------- ------------------------------
Interest Rate Mode:
------------------------------------------------- ------------------------------
[ ] Floating Rate Mode:
------------------------------------------------- ------------------------------
Index:
------------------------------------------------- ------------------------------
Interval between Interest Rate Change
Dates:
------------------------------------------------- ------------------------------
Interest Rate Determination Date(s):
------------------------------------------------- ------------------------------
[ ] Fixed Rate Mode:
------------------------------------------------- ------------------------------
Fixed Rate Pricing Benchmark:
------------------------------------------------- ------------------------------
Whether principal amortizes
periodically or is paid at end of Reset
Period:
------------------------------------------------- ------------------------------
Currency Denomination:
------------------------------------------------- ------------------------------
[ ] Foreign Exchange Mode:
------------------------------------------------- ------------------------------
Minimum Denominations and additional
increments:
------------------------------------------------- ------------------------------
2
------------------------------------------------- ------------------------------
Interest Distribution Dates:
------------------------------------------------- ------------------------------
Principal Distribution Date(s):
------------------------------------------------- ------------------------------
Derivative Product(s): [ ] Yes [ ] No
------------------------------------------------- ------------------------------
[ ] Currency Derivative Product:
------------------------------------------------- ------------------------------
[ ] Interest Rate Derivative Product:
------------------------------------------------- ------------------------------
Eligible Swap Counterparties from which
Bids will be Solicited:
------------------------------------------------- ------------------------------
All Hold Rate (Spread for floating or fixed ____%
rate, as applicable):
------------------------------------------------- ------------------------------
Day Count Basis:
------------------------------------------------- ------------------------------
Remarketing Fee (expressed as a percentage of
the outstanding principal amount of the Notes,
payable except in the case of a Failed
Remarketing):
------------------------------------------------- ------------------------------
Wire Instructions:
------------------------------------------------- ------------------------------
Other:
------------------------------------------------- ------------------------------
3
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respected officers thereunto duly authorize as of the date first
above written.
NELNET STUDENT LOAN TRUST
By: ,
not in its individual capacity but solely
as Delaware Trustee
By:____________________________
Name:
Title:
NATIONAL EDUCATION LOAN NETWORK, INC.
By:____________________________
Name:
Title:
,
as a Remarketing Agent
By:____________________________
Name:
Title:
4
,
as a Remarketing Agent
By:____________________________
Name:
Title:
,
as a Remarketing Agent
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
5
[TO BE REVIEWED AND REVISED BY REMARKETING AGENTS]
APPENDIX B
SUPPLEMENTAL REMARKETING AGENCY AGREEMENT
[to be executed on the applicable Spread Determination Date]
SUPPLEMENTAL REMARKETING AGENCY AGREEMENT
SUPPLEMENTAL REMARKETING AGENCY AGREEMENT, dated as of __________ __,
(this "Supplemental Remarketing Agreement") among NELNET STUDENT LOAN TRUST
(the "Issuer"), NATIONAL EDUCATION LOAN NETWORK, INC.
(the "Administrator") and and
(each, a "Remarketing Agent"
and, collectively, the "Remarketing Agents"). The Remarketing Agents will
attempt, on a reasonable efforts basis, to remarket the Class Reset Rate Notes
(the "Notes") described below that have been validly tendered by the holders
thereof for sale on the __________ __, ____ (the "Reset Date") at a price equal
to 100% of the aggregate principal amount so tendered in accordance with the
terms hereof and of the Remarketing Agreement, dated as of , (the
"Remarketing Agreement"), and the Remarketing Agency Agreement dated as of
__________ __, (the "Remarketing Agency Agreement"), each among the
Issuer, the Administrator and the Remarketing Agents, the terms of which are
hereby incorporated by reference and made a part hereof. There is no assurance
that the Remarketing Agents will be able to remarket the entire principal amount
of Notes tendered in a remarketing.
The Remarketing Agents shall also have the option, but not the
obligation, to purchase any tendered Notes at such price. The obligation of the
Remarketing Agents to purchase tendered Notes from the tendering Class
Noteholders will be subject, without limitation, to the conditions set forth in
Section 8 of the Remarketing Agreement.
All capitalized terms not otherwise defined in this Remarketing Agency
Agreement have the respective meanings assigned thereto in the Remarketing
Agreement.
CERTAIN TERMS OF THE NOTES
------------------------------------------------ -------------------------------
Trust: Nelnet Student Loan Trust
------------------------------------------------ -------------------------------
Remarketing Agents and Addresses:
------------------------------------------------ -------------------------------
Title of Notes: Class Reset Rate Notes
------------------------------------------------ -------------------------------
Principal Amount of Notes to be Remarketed $__________
------------------------------------------------ -------------------------------
Title of Indenture: Indenture of Trust, dated as of
, , as amended
or supplemented from time to
time by and among the Issuer,
the Eligible Lender Trustee
and the Trustee.
------------------------------------------------ -------------------------------
------------------------------------------------ -------------------------------
Eligible Lender Trustee:
------------------------------------------------ -------------------------------
Trustee:
------------------------------------------------ -------------------------------
Current Ratings:
------------------------------------------------ -------------------------------
Xxxxx'x Investors Service, Inc.: _____
------------------------------------------------ -------------------------------
Standard & Poor's Ratings Services: _____
------------------------------------------------ -------------------------------
Fitch Ratings: _____
------------------------------------------------ -------------------------------
Interest Rate Mode:
------------------------------------------------ -------------------------------
[ ] Floating Rate Mode:
------------------------------------------------ -------------------------------
Spread: ____%
------------------------------------------------ -------------------------------
[ ] Fixed Rate Mode:
------------------------------------------------ -------------------------------
Spread: ____%
------------------------------------------------ -------------------------------
Yield to Maturity of Fixed Rate Pricing ____%
Benchmark
------------------------------------------------- ------------------------------
Fixed Rate: ____%
------------------------------------------------- ------------------------------
The Eligible Swap Counterparty
(or Counterparties) and the floating rate (or
rates) of interest payable by the Issuer to each
Eligible Swap Counterparty (or Counterparties):
------------------------------------------------- ------------------------------
Currency Denomination:
------------------------------------------------- ------------------------------
Currency Exchange Rate:
------------------------------------------------- ------------------------------
Extension Rate:
------------------------------------------------- ------------------------------
All Hold Rate:
------------------------------------------------- ------------------------------
New Interest Rate: As determined by application
of the provisions set forth
herein and in the Remarketing
Agreement and Remarketing
Agency Agreement.
------------------------------------------------- ------------------------------
Beneficial Owner Tender Provisions: As set forth in the
Remarketing Prospectus
dated __________ __, ____.
In the event that the
Remarketing Agents fail to
remarket all Class
Notes validly tendered for
remarketing on the Reset Date,
then the Remarketing Agents
shall promptly notify the
Administrator and the Trustee
of such failure.
------------------------------------------------- ------------------------------
27
------------------------------------------------- ------------------------------
Failed Remarketing Rate: ____%
------------------------------------------------- ------------------------------
Form of Notes:
Global certificate registered
in the name of the
nominee of the applicable
depository of the Notes, which
is DTC, Clearstream,
Luxembourg or Euroclear. The
beneficial owners of the Notes
("Beneficial Owners") are not
entitled to receive definitive
certificates representing
their Notes, except under
limited circumstances. A
Beneficial Owner's ownership
of a Note currently is
recorded on or through the
records of the brokerage firm
or other entity that is a
participant in DTC,
Clearstream, Luxembourg or
Euroclear and that maintains
such Beneficial Owner's
account.
------------------------------------------------- ------------------------------
Purchase Price: 100% of the principal amount
of the tendered Notes. Payable
to DTC, Clearstream,
Luxembourg or Euroclear for
the Beneficial Owners of
tendered Notes.
------------------------------------------------- ------------------------------
Remarketing Fee (expressed as a percentage of As set forth in the principal
the outstanding principal amount of the Notes, Remarketing Agency Agreement.
payable except in the case of a Failed
Remarketing):
------------------------------------------------- ------------------------------
Wire Instructions:
------------------------------------------------- ------------------------------
Other:
------------------------------------------------- ------------------------------
Closing: __________ __, ____
------------------------------------------------- ------------------------------
3
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respected officers thereunto duly authorize as of the date first
above written.
NELNET STUDENT LOAN TRUST
By:
,
not in its individual capacity but solely
as Delaware Trustee
By:____________________________
Name:
Title:
NATIONAL EDUCATION LOAN NETWORK, INC.
By:____________________________
Name:
Title:
,
as a Remarketing Agent
By:____________________________
Name:
Title:
4
,
as a Remarketing Agent
By:____________________________
Name:
Title:
,
as a Remarketing Agent
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
5
APPENDIX C
RESET RATE NOTE PROCEDURES
[Please see Article II to Appendix A to the Indenture.]
DMWEST #6536978 v2
APPENDIX D
REMARKETING FEE SCHEDULE
Maximum Remarketing Fees
The maximum remarketing fees payable to the Remarketing Agents in
respect of each Reset Date shall be:
------------------------------------------------ -------------------------------
Average Life Percentage of the Outstanding
(Duration of Applicable Reset Period) Amount of the Notes (bps)
------------------------------------------------ -------------------------------
1 Year
------------------------------------------------ -------------------------------
3 Years
------------------------------------------------ -------------------------------
5 Years
------------------------------------------------ -------------------------------
7 Years
------------------------------------------------ -------------------------------
10 Years
------------------------------------------------ -------------------------------
