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DEALER MANAGER AGREEMENT
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_______________, 1999
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. EXCHANGE OFFER. Student Loan Funding 1998-A/B Trust, a common law
trust formed under the laws of the state of Delaware (the "Trust"), plans to
make an offer to exchange its $365,031,478.23 aggregate principal amount of
Student Loan Senior Asset-Backed Notes, Series 1998A1-3 (LIBOR Floating Rate),
$93,300,000 aggregate principal amount of Student Loan Senior Asset-Backed
Callable Notes, Series 1998A1-4 (Auction Rate), $90,000,000 aggregate principal
amount of Student Loan Senior Asset-Backed Callable Notes, Series 1998A1-5
(Auction Rate), $90,000,000 aggregate principal amount of Student Loan Senior
Asset-Backed Callable Notes, Series 1998A1-6 (Auction Rate) and $54,500,000
aggregate principal amount of Student Loan Subordinate Asset-Backed Notes,
Series 1998B1-3 (Fixed Rate) (collectively, the "Exchange Notes"), respectively,
for an equal principal amount of its $365,031,478.23 aggregate principal amount
of Student Loan Senior Asset-Backed Notes, Series 1998A-3 (LIBOR Floating Rate),
$93,300,000 aggregate principal amount of Student Loan Senior Asset-Backed
Callable Notes, Series 1998A-4 (Auction Rate), $90,000,000 aggregate principal
amount of Student Loan Senior Asset-Backed Callable Notes, Series 1998A-5
(Auction Rate), $90,000,000 aggregate principal amount of Student Loan Senior
Asset-Backed Callable Notes, Series 1998A-6 (Auction Rate) and $54,500,000
aggregate principal amount of Student Loan Subordinate Asset-Backed Notes,
Series 1998B-3 (Fixed Rate) (collectively, the "Original Notes") on the terms
and subject to the conditions set forth in the Prospectus (as hereinafter
defined) relating to the exchange and the accompanying letters of transmittal
(each a "Letter of Transmittal"). The offer to exchange the Exchange Notes for
the Original Notes on the terms and subject to the conditions set forth in the
Prospectus and the related Letters of Transmittal is referred to individually as
an "Exchange Offer", and the offers with respect to all of the Exchange Notes
are collectively referred to as the "Exchange Offers". Capitalized terms not
defined herein shall have the meanings set forth in the Prospectus.
The Exchange Offers are expected to be commenced by the Trust on or
about June __, 1999 (the "Commencement Date"). The Exchange Offers shall expire
at 5:00 p.m., New York City time, on June __ 1999 or on such later date or time
to which the Trust may extend the Exchange Offers (the "Expiration Date").
The Trust expressly reserves the right to amend or terminate the
Exchange Offers and not to accept for exchange any Original Notes not
theretofore accepted for exchange, upon the occurrence of the conditions of the
Exchange Offers specified in the Prospectus under the caption "The Exchange
Offer--Certain Conditions to the Exchange Offer". The Trust will give oral
(promptly confirmed in writing) or written notice of any amendment, termination
or nonacceptance to you as promptly as practicable.
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2. APPOINTMENT AS DEALER MANAGER. Student Loan Funding LLC, a Delaware
limited liability company (the "Depositor") and the Trust hereby appoint you as
exclusive Dealer Manager, and authorizes you to act as such, in connection with
the Exchange Offers. As Dealer Manager, you agree, in accordance with your
customary practice, to perform those services in connection with the Exchange
Offers as are customarily performed by investment banking firms in connection
with exchange offers of like nature, including, but not limited to, (i)
providing certain advice to the Depositor and the Trust regarding the terms and
timing of the Exchange Offers, (ii) using your best efforts to solicit tenders
of Original Notes pursuant to the Exchange Offers and to communicate with other
brokers, dealers, commercial banks and trust companies (individually, a "Dealer"
and collectively, "Dealers"), and (iii) mailing of the Prospectus, the related
Letters of Transmittal and other related documents to the holders of Original
Notes ("Holders"). If you and the Depositor and the Trust mutually agree that
you will provide any other services to the Trust, including financial advisory
or investment banking services, you and the Depositor and the Trust shall either
amend the terms of this Agreement or enter into a separate agreement covering
the terms and arrangements of such additional engagement.
3. NO LIABILITY FOR ACTS OF DEALERS. You shall have no liability (in
tort, contract or otherwise) to the Trust or any other person for any act or
omission on the part of any Dealer (other than yourself) and you shall have no
liability (in tort, contract or otherwise) to the Depositor or Trust or any
other person for any losses, claims, damages or liabilities arising from your
own acts or omissions in performing your obligations as Dealer Manager hereunder
or otherwise in connection with the Exchange Offers, except for any such losses,
claims, damages or liabilities attributable to your bad faith or gross
negligence. In soliciting or obtaining tenders, no Dealer, is to be deemed to be
acting as your agent or the agent of the Depositor or the Trust, and you, as
Dealer Manager, are not to be deemed the agent of the Depositor or the Trust,
any Dealer or any other person. The Depositor and the Trust acknowledge and
agrees that, in your capacity as Dealer Manager, you shall act as an independent
contractor, and any of your duties arising out of your engagement pursuant to
this Agreement shall be owed solely to the Depositor and the Trust.
4. REGISTRATION STATEMENT, PROSPECTUS AND EXCHANGE OFFER MATERIAL.
(a) The Depositor and the Trust has prepared and filed with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act") and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), a registration statement on Form
S-4 covering the registration of the Exchange Notes issuable upon exchange for
the Original Notes. Such registration statement, including the exhibits thereto
and any documents incorporated by reference therein, as amended at the time it
becomes effective or as thereafter amended or supplemented from time to time, is
herein called the "Registration Statement." The final prospectus included in the
Registration Statement (including any documents incorporated in the prospectus
by reference) is herein called the "Prospectus," except that if the final
prospectus furnished to the Dealer Manager for use in connection with the
Exchange Offers differs from any prospectus set forth in the Registration
Statement (whether or not such prospectus is required to be filed pursuant to
Rule 424(b)), the term "Prospectus" shall refer to the final prospectus
furnished to the Dealer Manager for such use. The terms
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"supplement" and "amendment" or "supplemented" and "amended" as used herein with
respect to the Prospectus shall include all documents deemed to be incorporated
by reference in the Prospectus that are filed subsequent to the date of the
Prospectus and prior to the Termination Date by the Trust with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(b) The Registration Statement, Prospectus and the related Letters of
Transmittal; related letters from the Dealer Manager to securities brokers,
dealers, commercial banks, trust companies and other nominees; letters to
beneficial owners of Original Notes; notice of guaranteed delivery and any other
newspaper announcements, press releases and other offering materials and
information the Trust may use or prepare, approve or authorize for use in
connection with the Exchange Offers are herein collectively referred to as the
"Exchange Offer Material." The Trust authorizes you to use, and agrees to
furnish you with as many copies as you may reasonably request of, each of the
Exchange Offer Material in connection with the Exchange Offers and for such
period of time as any such material is required by law to be delivered in
connection therewith.
(c) The Trust agrees that, a reasonable time prior to using or filing
with the Commission or with any other Federal or other governmental agency,
authority or instrumentality ("Other Agency"), the Registration Statement or any
other Exchange Offer Material (whether preliminary or otherwise), the Trust will
submit copies of such material to you and will give reasonable consideration to
your and your counsel's comments, if any, thereon.
(d) Prior to and during the period of the Exchange Offers, the
Depositor or the Trust will inform you promptly after any senior executive
officer, senior accounting or legal officer or treasurer of the Depositor or the
Trust receives notice or becomes aware of the happening of any event, or the
discovery of any fact, which it believes would require the making of any change
in any Exchange Offer Material then being used or would affect the truth or
completeness of any representation or warranty contained in this Agreement if
such representation or warranty were being made immediately after the happening
of such event or the discovery of such fact.
(e) The Trust agrees that any reference to the Dealer Manager in any
Exchange Offer Material or in any newspaper announcements or press release or
other public document or communication is subject the Dealer Manager's prior
consent, which consent shall not be unreasonably withheld.
5. WITHDRAWAL. If the Trust (a) uses or permits the use of, or files
with the Commission or any Other Agency, any Exchange Offer Material (i) which
has not been submitted to you for your comments or (ii) which has been so
submitted and with respect to which you have made comments material to such
Exchange Offer Material but which comments have not resulted in a response
reasonably satisfactory to you and your counsel to reflect your comments or (b)
shall have breached, in any material respect, any of its representations,
warranties, agreements or covenants herein, then you shall be entitled to
withdraw as Dealer Manager in connection with the Exchange Offers without any
liability or penalty to you or any other Indemnified Person (as defined in
Section 12) for such withdrawal and without loss of any right to indemnification
or contribution provided in Section 12 or to the payment of all fees and
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expenses payable hereunder which have accrued to the date of such withdrawal. If
you withdraw as Dealer Manager for any of the reasons set forth in the preceding
sentence, the fees and reimbursement for your expenses through the date of such
withdrawal shall be paid to you promptly after such date.
6. COMPENSATION. The Depositor agrees to pay or cause the Trust to pay
you as compensation for your services as Dealer Manager a fee of $___________.
Such fee shall be payable promptly upon the acceptance for payment of Original
Notes tendered in response to the Exchange Offers or upon termination of the
Exchange Offers, as applicable.
7. EXPENSES. The Depositor will pay or cause the Trust to pay (i) all
fees and expenses relating to the preparation, printing, filing, mailing and
publishing of all documents pertaining to the Exchange Offers; (ii) all fees and
expenses of any depositary, information agent or other agents, attorneys and
other persons retained by the Depositor or the Trust in connection with the
Exchange Offers; (iii) all fees, if any, payable to Dealers (including the
Dealer Manager) as reimbursement for their customary mailing and handling
expenses in forwarding expenses related to the Exchange Offers to their
customers; (iv) all advertising charges; and (v) all other fees and expenses
incurred in connection with or relating to the Exchange Offers. In addition, the
Depositor agrees to reimburse or cause the Trust to reimburse the Dealer Manager
and its affiliates, promptly upon request, for all out-of-pocket expenses,
including without limitation the fees, costs and expenses of the Dealer
Manager's legal counsel, incurred in connection with the Exchange Offers.
8. SECURITYHOLDER LISTS; DEPOSITORY. The Trust will provide you, or
will cause the trustee under the indenture governing the Original Notes or The
Depository Trust Company ("DTC"), to provide you with copies of the Trust's
records showing the names and addresses of, and principal amounts of Original
Notes held by, the Holders as of a recent date and will use their reasonable
efforts to advise you or will cause such trustee or the DTC to advise you from
day to day during the period of the Exchange Offers as to any transfers of
record of the Original Notes. The Trust will advise you during each business day
of all Original Notes tendered or withdrawn during the preceding business day
and the names and addresses of, and the principal amount of Original Notes so
tendered or withdrawn by, each such tendering or withdrawing Holder. The Trust
will advise you of any defective tenders and of all tenders verified to be in
proper form. Not later than the opening of business on the day following the
Expiration Date, the Trust will advise you of all tendered Original Notes,
including the principal amount of Original Notes either tendered in proper form,
rejected for tender or being processed (such as Notices of Guaranteed Delivery).
The Trust has appointed Firstar Bank, N.A. to serve as exchange agent
(the "Exchange Agent") in connection with the Exchange Offers and has instructed
the Exchange Agent to advise you daily as to such matters as you may reasonably
request.
9. REPRESENTATIONS. WARRANTIES AND COVENANTS OF THE TRUST. The
Depositor, as creator of the Trust and the Trust represent, warrant and covenant
to you that:
(a) the Registration Statement has become effective;
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(b) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Trust,
threatened by the Commission;
(c) the Registration Statement and Prospectus (as amended or
supplemented if the Trust shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may be, in all
material respects with the Securities Act and the Trust Indenture Act
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the date of
the Prospectus and any amendment or supplement thereto, 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, and the Prospectus, as amended or supplemented,
if applicable, at the date of consummation of the Exchange Offers (the
"Closing Date") will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; except that the foregoing representations and
warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture Act,
and (ii) statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
relating to you and furnished to the Trust in writing by you;
(d) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, the Trust has
not incurred any material liabilities, direct or contingent nor has
there been any material adverse change in the financial position,
results of operations or condition of the Trust that is not described
in the Prospectus whether or not arising from transactions in the
ordinary course of business;
(e) the Trust is a validly created Delaware common law trust
and at the Closing Date will have, full legal rights, power and
authority (i) to enter into this Agreement and Indenture and to issue
the Exchange Notes (collectively, the "Documents"), (ii) to authorize
the issuance of the Exchange Notes and to issue and deliver the
Exchange Notes to the Holders pursuant to the terms of the Exchange
Offers and the Indenture as provided herein and (iii) to carry out,
give effect to and consummate the transactions contemplated by the
Documents and the Exchange Offers;
(f) the Documents (when executed and delivered by the
respective parties thereto) will constitute legal, valid and binding
obligations of the Trust enforceable in accordance with their
respective terms except as limited by bankruptcy, reorganization,
insolvency and other similar laws affecting enforceability of
creditors' rights generally and provided that the availability of
equitable remedies is subject to the application of equitable
principles;
(g) the Exchange Notes have been duly authorized, and when
issued and delivered in accordance with the Exchange Offers, will have
been duly executed,
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authenticated, issued and delivered and will constitute valid and
binding obligations of the Trust entitled to the benefits provided by
the Second Amended and Restated Indenture of Trust and the Second
Amended and Restated Terms Supplement each dated as of June 1, 1999
between the Trust and Firstar Bank, N.A., as Trustee (collectively, the
"Indenture"); the Indenture has been duly authorized and, when the
Indenture is executed and delivered by the Trust and when authorized,
executed and delivered by the other parties thereto, the Indenture,
will constitute the valid and binding agreement of the Trust; and the
Indenture, upon effectiveness of the Registration Statement, will have
been duly qualified under the Trust Indenture Act; and the Exchange
Notes and the Indenture conform to the descriptions thereof in the
Prospectus;
(h) the Trust is not in breach of or in default under the
Trust Agreement dated as of March 1, 1999 (the "Trust Agreement") among
the Depositor, the Trust, and First Union Trust Company, National
Association, not in its individual capacity but solely as Owner Trustee
and Firstar Bank, N.A., not in its individual capacity, but solely as
Co-Owner Trustee, any applicable law or administrative regulation of
the State of Delaware, the United States or of any department,
division, agency or instrumentality of either thereof, or any
applicable court or administrative decree or order, or any indenture,
loan agreement, note, resolution, certificate, contract, agreement or
other instrument to which the Trust is a party or is otherwise subject
or bound, except for defaults that, singly or in the aggregate, have
not had and will not have a materially adverse effect on the Trust's
ability to perform its obligations thereunder;
(i) the execution and delivery of the Documents and the other
instruments contemplated by any of such documents to which the Trust is
a party, and compliance with the provisions of each thereof did not and
will not conflict with or constitute a breach of or default under the
Trust Agreement, any applicable law or administrative regulation of the
State of Ohio, the State of Delaware, the United States or of any
department, division, agency or instrumentality of any of the
foregoing, or any applicable court or administrative decree or order,
or any indenture, loan agreement, note, resolution, certificate,
contract, agreement or other instrument to which the Trust is a party
or is otherwise subject or bound;
(j) to the knowledge of the Depositor and the Trust, no
action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, regulatory agency, public board or
body, is pending or threatened in any way affecting the existence of
the Trust or the titles of its officers to their respective offices or
seeking to restrain or to enjoin the Exchange Offers or the issuance,
sale or delivery of the Exchange Notes or in any way contesting or
affecting the validity or enforceability of the Documents, or any
action on the part of the Trust contemplated by any of said documents,
or which, if adversely determined, would have a material adverse effect
on the financial condition or prospects of the Trust, nor, to the
knowledge of the Trust, is there any basis therefor;
(k) the Trust is not and, after giving effect to the offering
and exchange of the Exchange Notes, will not be an "investment company"
or an entity "controlled" by an
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"investment company", as such terms are defined in the Investment Trust
Act of 1940, as amended;
(l) all necessary action has been duly taken by the Trust to
authorize the Exchange Offers, the exchange of Exchange Notes for
Original Notes pursuant to the Exchange Offers and all other actions
contemplated by this Agreement, and no other proceedings are necessary
to authorize any such actions;
(m) the Exchange Offers, the exchange of Exchange Notes for
Original Notes pursuant to the Exchange Offers, the delivery of the
Exchange Offer Material and the execution, delivery and performance of
this Agreement will comply with the Securities Act, the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated by the Commission thereunder (collectively, the "Exchange
Act") and the Trust Indenture Act and any applicable Blue Sky Laws;
(n) the Trust has complied, and will at the Closing Date be in
compliance, with the Trust Agreement and the Documents;
(o) all approvals, consents, authorizations, permits,
elections and orders of or filings or registrations with any
governmental authority, board, agency or commission having
jurisdiction, including but not limited to, the United States
Department of Education under the Higher Education Act, and the Ohio
Secretary of State that would constitute a condition precedent to the
performance by the Trust of its obligations under the Exchange Offers,
the Exchange Notes and the Documents have been obtained and are in full
force and effect; and
(p) the Trust shall furnish such information, execute such
instruments and take such other action in cooperation with the Dealer
Manager as the Dealer Manager may reasonably request to qualify the
Exchange Notes for offer and sale under the Blue Sky Laws or other
securities laws and regulations of such states and other jurisdictions
of the United States as the Dealer Manager may designate; provided that
the Trust shall not be required to take any action that would subject
it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
10. CONDITIONS TO DEALER MANAGER'S OBLIGATIONS. The obligations of the
Dealer Manager hereunder shall be subject (i) to the performance by the
Depositor and the Trust of their respective obligations to be performed
hereunder or under the Indenture or Supplemental Indenture prior to the Closing
Date, (ii) to the accuracy of and compliance with the representations,
warranties and covenants of the Depositor and the Trust herein, in each case as
of the Commencement Date and at all times on or prior to the Closing Date, and
(iii) in the discretion of the Dealer Manager, to the following further
conditions:
(a) At the Closing Date, the Documents shall have been duly
authorized, executed and delivered by the respective parties thereto,
and in substantially the forms heretofore submitted to the Dealer
Manager, with only such changes as shall have been agreed to in writing
by the Dealer Manager, and said documents shall not have been
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amended, modified or supplemented, except as may have been agreed to in
writing by the Dealer Manager and there shall have been taken in
connection therewith, with the Exchange Offers, with the issuance of
the Exchange Notes and with the transactions contemplated thereby and
by this Agreement, all such actions as, in the opinion of counsel to
the Trust, shall be necessary and appropriate.
(b) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
change, or development involving a prospective change, in the
condition, financial or otherwise, or the earnings, business or
operations of, the Trust from that described in the Prospectus that, in
the Dealer Manager's judgment, is material and adverse and that makes
it, in the Dealer Manager's judgment, impracticable to recommend that
Holders participate in the Exchange Offers on the terms and in the
manner contemplated by the Registration Statement.
(c) At or prior to the Closing Date, the Dealer Manager shall
have received the following documents, in each case satisfactory in
form and substance to the Dealer Manager:
(1) executed or conformed copies of the Documents
duly executed and delivered by the respective parties thereto,
with such amendments, modifications or supplements as may have
been agreed to in writing by the Dealer Manager;
(2) opinions, dated the Closing Date and addressed to
the Trust and to the Dealer Manager, of Xxxxxxxx, Xxxxxx &
Finger, P.A., Xxxxxx, Halter & Xxxxxxxx LLP and Xxxxxxxx Xxxx
& Xxxxx LLP, in such form as may be satisfactory to the Dealer
Manager and the Dealer Manager's counsel;
(3) an opinion, dated the Closing Date and addressed
to the Dealer Manager, of counsel to the Dealer Manager, in
such form as may be satisfactory to the Dealer Manager;
(4) a certificate, dated the Closing Date and signed
by the President or Senior Vice President and Manager of the
Depositor, in substantially the form attached hereto as
Appendix A;
(5) opinions, dated the Closing Date and addressed to
the Trust and the Dealer Manager, of counsel for the Indenture
Trustee, Owner Trustee and Co-Owner Trustee, in such form as
may be satisfactory to the Dealer Manager and the Dealer
Manager's counsel;
(6) certificates, dated the Closing Date and signed
by the chief financial officer or other officer acceptable to
the Representative of Florida Department of Education, OSFA
(to the extent reasonably obtainable), Georgia Higher
Education Assistance Corporation, United Student Aid Funds,
Inc., Kentucky Higher Education Assistance Authority and Great
Lakes Higher Education Guaranty Corporation, regarding the
accuracy and completeness of the Prospectus with
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respect to the information relating to such entities,
respectively, under the caption "THE GUARANTEE AGENCIES" in
the Prospectus in such form as may be satisfactory to the
Dealer Manager and the Dealer Manager's counsel;
(7) an opinion, dated the Closing Date and addressed
to the Dealer Manager, of the respective counsel for each
Guarantor listed in (6) above in form and substance acceptable
to the Dealer Manager, in such form as may be satisfactory to
the Dealer Manager and the Dealer Manager's counsel;
(8) an opinion, dated the Closing Date and addressed
to the Dealer Manager, of counsel to InTuition, Inc., USA
Group Loan Services, Inc., Great Lakes Higher Education
Servicing Corporation and UNIPAC in such form as may be
satisfactory to the Dealer Manager and the Dealer Manager's
counsel;
(9) an incumbency certificate for the officers of the
Depositor, the Delaware Trustee and the Co-Owner Trustee;
(10) a certified copy of the resolution of the
Management Committee of the Depositor, as the sole holder of
all beneficial interests in the Trust, authorizing the
Exchange Offers and the issuance, delivery and sale of the
Exchange Notes pursuant to the terms of the Exchange Offers;
(11) a copy of the Trust Agreement;
(12) a copy of the Certificate of Full Force and
Effect of the Depositor;
(13) evidence that the Series A-3 Notes, Series A-4
Notes, Series A-5 Notes and Series A-6 Notes are rated Aaa and
AAA and the Series B-3 Notes are rated A-2 and A by Xxxxx'x
and Fitch, respectively;
(14) Exchange Note specimens;
(15) U.C.C. financing statements and bailment notices
relating to the Indenture; and
(16) such additional legal opinions, certificates,
instruments and other documents as the Dealer Manager or
Dealer Manager's counsel may reasonably request to evidence
the truth and accuracy, as of the date hereof and as of the
Closing Date, of the Depositor's representations and
warranties contained herein and of the statements and
information contained in the Prospectus and the due
performance and satisfaction by the Trust at or prior to the
Closing of all agreements then to be performed and all
conditions then to be satisfied by the Depositor or the Trust
in connection with the transactions contemplated by the
Documents and the Prospectus.
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The opinions and certificates and other evidence referred to above
shall be in form and substance satisfactory to the Dealer Manager in its
reasonable opinion.
If the Depositor and the Trust shall be unable to satisfy the
conditions to the obligations of the Dealer Manager contained in this Agreement,
this Agreement shall terminate and neither the Dealer Manager nor the Depositor
or the Trust shall be under any further obligation hereunder, except as provided
in Section 7 hereof.
11. ADDITIONAL COVENANTS OF THE DEPOSITOR AND THE TRUST. The Depositor
or the Trust will advise you promptly of (i) the occurrence of any event which
could cause the Trust to withdraw or terminate the Exchange Offers or would
permit the Trust to exercise any right not to exchange the Exchange Notes
tendered pursuant to the Exchange Offers, (ii) any proposal or requirement to
issue, amend or supplement any Exchange Offer Material, (iii) the issuance of
any material communication, comment or order by the Commission or any Other
Agency concerning the Exchange Offers (and, if in writing, will furnish you a
copy thereof) and (iv) any other information relating to the Exchange Offers
which you may from time to time reasonably request.
12. INDEMNIFICATION. The Depositor hereby agrees to hold you harmless
and to indemnify you (including any of your affiliated companies and any
director, officer, agent or employee of you or any such affiliated company), and
any director, officer or other person controlling (within the meaning of Section
20(a) of the Exchange Act) you (including any of your affiliated companies)
(collectively, the "Indemnified Persons") from and against any and all losses,
claims, damages, liabilities or expenses (including reasonable fees and expenses
of counsel and reasonable expenses incurred in the investigation of, preparing,
pursuing or defending any action, suit, investigation or proceeding, commenced
or threatened, or any claim whatsoever and whether or not you or any other
Indemnified Person shall be a party thereto), whether in contract, tort or
otherwise and as incurred or suffered, (a) arising out of or based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Prospectus or any other Exchange Offer Material, or any omission or alleged
omission to state in the Prospectus or any other Exchange Offer Material a
material fact necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading or (ii) any withdrawal
or termination by the Trust of, or failure by the Trust to make or consummate,
the Exchange Offers or (iii) any breach by the Trust of any representation or
warranty or failure to comply with any of the agreements contained herein or (b)
otherwise arising out of, relating to or in connection with the Exchange Offers
or your role in connection therewith, whether the event allegedly giving rise to
such claim shall have occurred prior to the commencement of, during the period
of, or subsequent to the consummation of, the Exchange Offers; except, in the
case of clause (b) above, for any such loss, claim, damage, liability or expense
which resulted primarily from the bad faith, gross negligence or willful
misconduct of any Indemnified Person. In the event a court of competent
jurisdiction determines by final and nonappealable judgment that any such
losses, actions, claims, demands, damages, liabilities or expenses of any
Indemnified Person resulted from actions taken or omitted to be taken by such
Indemnified Person in bad faith or from such Indemnified Person's gross
negligence or willful misconduct, you will promptly return all funds paid to you
by the Depositor pursuant to this
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Section 12 and customary interest thereon. The foregoing indemnity shall be in
addition to any liability which the Depositor might otherwise have to you and
such other Indemnified Persons.
Neither the Depositor nor the Trust shall, without the prior written
consent of the Indemnified Person, settle, compromise or consent to the entry of
any judgment in or otherwise seek to terminate any pending or threatened action,
claim, suit, investigation or proceeding in respect of which any Indemnified
Person is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding. No Indemnified Person seeking
indemnification, reimbursement or contribution pursuant to this Agreement shall,
without the Depositor's prior written consent, settle, compromise, consent to
the entry of. any judgment in or otherwise seek to terminate any action, claim,
suit, investigation or proceeding referred to in the preceding paragraph. The
Depositor and the Trust agree to notify you promptly of the assertion of any
claim in connection with the Exchange Offers against either of them, any of
their respective officers or directors or any person who controls it within the
meaning of Section 20(a) of the Exchange Act.
Upon the assertion of any claim in connection with the Exchange Offers
against any Indemnified Person as to which such Indemnified Person may seek
indemnity under this Section 12, such Indemnified Person shall notify the
Depositor and the Trust promptly in writing, and the Depositor, upon the request
of such Indemnified Person, shall retain counsel reasonably satisfactory to you
to represent such Indemnified Person and any others the Depositor may designate
in such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. Failure to so notify the Depositor or the Trust
shall not, however, relieve the Depositor from any liability which it may have
on account of the indemnity under this Section 12 if the Depositor has not been
prejudiced in any material respect for such failure. In any such proceeding the
defense of which shall have been so assumed, any Indemnified Person shall have
the right to participate in such litigation or proceeding and to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Depositor and the Indemnified Person
shall have mutually agreed to the retention of such counsel, (ii) the Depositor
shall have failed within a reasonable time to retain counsel reasonably
satisfactory to you or (iii) the named parties to any such proceeding (including
any impleaded parties) include either the Depositor or the Trust and the
Indemnified Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
Such firm shall be designated in writing by you. It is understood that the Trust
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel) for all such Indemnified
Persons and that all such fees and expenses shall be reimbursed as they are
incurred upon submission to the Depositor and the Trust of itemized statements
in reasonable detail. The Depositor shall not be liable for any settlement of
any litigation or proceeding effected without its written consent, which consent
shall not be unreasonably withheld, but if settled with such consent or if there
be a final judgment for the plaintiff, the Depositor agrees, subject to the
provisions of this Section 12, to indemnify the Indemnified Person from and
against any loss, damage, liability or expense by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested the Depositor to reimburse such Indemnified Person
for
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fees and expenses of counsel as contemplated by the first sentence of this
paragraph, the Depositor agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Depositor of the aforesaid
request and (ii) the Depositor shall not have reimbursed the Indemnified Person
in accordance with such request prior to the date of such settlement.
If the indemnity provided for in the foregoing paragraphs of this
Section 12 is finally judicially determined by a court of competent jurisdiction
to be unavailable to an Indemnified Person in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then you and the
Depositor, in lieu of the Depositor's indemnifying such Indemnified Person,
agree that the Depositor shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Trust and by you from the Exchange Offers or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in the foregoing clause (i), but also the relative
fault of either the Depositor or the Trust and of you in connection with the
statements, actions or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations;
PROVIDED, HOWEVER, that in no event shall your aggregate contribution to the
amount paid or payable exceed the aggregate amount of fees actually received by
you pursuant to this Agreement. The relative benefits received by the Trust on
the one hand and by you on the other shall be deemed to be in the same
proportion as (i) the maximum aggregate value of the Exchange Notes proposed to
be exchanged by the Trust for the Original Notes pursuant to the Exchange Offers
bears to (ii) the MAXIMUM aggregate fee proposed to be paid to you pursuant to
Section 6. The relative fault of either the Depositor or the Trust on the one
hand and of you on the other (i) in the case of an untrue or alleged untrue
statement of a material fact or an omission or alleged omission to state a
material fact, shall be determined by reference to, among other things, whether
such statement or omission relates to information supplied by the Depositor or
the Trust or by you and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission and
(ii) in the case of any other action or omission, shall be determined by
reference to, among other things, whether such action or omission was taken or
omitted to be taken by the Depositor or the Trust or by you and the parties'
relative intent, knowledge, access to information and opportunity to prevent
such action or omission.
The Depositor and you agree that it would not be just and equitable if
contribution pursuant to this Section 12 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages, liabilities or expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
13. TERMINATION AND SURVIVAL OF CERTAIN PROVISIONS. This Agreement may
be terminated (i) by you (A) upon a withdrawal by you as Dealer Manager pursuant
to Section 5, (B) if the Trust determines to terminate or withdraw the Exchange
Offers prior to consummation
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thereof or (C) if there is a good faith disagreement between you and the Trust
with respect to any term or condition of the Exchange Offers, or (ii) by the
Trust (A) if it determines to terminate or withdraw the Exchange Offers prior to
consummation thereof or (B) if there is a good faith disagreement between you
and the Trust with respect to any term or condition of the Exchange Offers. This
Agreement will otherwise terminate if the Commencement Date shall not have
occurred on or prior to _______________, 1999, or such later date as may be
mutually agreed upon, or upon the consummation of the Exchange Offers. The
indemnity and contribution agreements contained in Section 12, the fee and
expense reimbursement agreements contained in Sections 6 and 7, the payment
obligations, if any, provided for in Section 5 and the representations and
warranties of the Trust set forth in this Agreement shall remain operative and
in full force and effect regardless of (i) any failure to commence, or the
withdrawal, termination or consummation of, the Exchange Offers or the
termination or assignment of this Agreement, (ii) any investigation made by or
on behalf of any Indemnified Person, and (iii) the completion of your services
hereunder.
14. SEVERABILITY. If any provision hereof shall be determined to be
invalid, illegal or unenforceable in any respect, such determination shall not
affect such provision in any other respect or any other provision hereof, which
shall remain in full force and effect so long as the economic or legal substance
of the Exchange Offers and the agreements contained herein are not affected in
any manner adverse to any party.
15. COUNTERPARTS. This Agreement may be executed in one or more
separate counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
16. BINDING EFFECT. This Agreement, including any right to indemnify or
contribution hereunder, shall inure to the benefit of and be binding upon the
Trust, you and the other Indemnified Persons (as defined in Section 12), and
each of your and their respective successors and assigns. Nothing in this
Agreement is intended, or shall be construed, to give to any other person or
entity any right hereunder or by virtue hereof.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without regard to principles of
conflicts of law.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof.
19. NOTICES. All notices and other communications required or permitted
to be given under this Agreement shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by registered or certified mail,
return receipt requested, postage prepaid, to the parties hereto as follows:
(a) If to you:
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Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
with a copy to:
Squire, Xxxxxxx & Xxxxxxx L.L.P.
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
(b) If to the Trust:
Student Loan Funding 1998-A/B Trust
c/o Firstar Bank, N.A.
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
with copies to:
Student Loan Funding 1998-A/B Trust
c/o Student Loan Funding LLC
Xxx Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Attention: Senior Vice President and Manager
Thomson, Xxxx & Xxxxx LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx
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Please indicate your willingness to act as Dealer Manager on the terms
set forth herein and your acceptance of the foregoing provisions by signing in
the space provided below for that purpose and returning to us a copy of this
Agreement, whereupon this Agreement and your acceptance shall constitute a
binding agreement between us.
Very truly yours,
First Union Trust Company, National Association,
not in its individual capacity but solely as Owner
Trustee of Student Loan Funding 1998-A/B Trust
By:
-----------------------------------------------
Name:
Title:
Firstar Bank, National Association, not in its
individual capacity but solely as Co-Owner Trustee
of Student Loan Funding 1998-A/B Trust
By:
-----------------------------------------------
Name:
Title:
Student Loan Funding LLC
By:
-----------------------------------------------
Name:
Title:
Accepted as of the date
first set forth above:
XXXXXXX XXXXX XXXXXX INC.
By:
-------------------------
Name:
Title:
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APPENDIX A
CERTIFICATE OF THE TRUST PURSUANT TO SECTION 10(C)(4)
OF THE DEALER MANAGER AGREEMENT
The undersigned, Student Loan Funding LLC, as creator of Student Loan
Funding 1998-A/B Trust (the "Trust"), pursuant to Section 10(c)(4) of the Dealer
Manager Agreement dated ______, 1999 (the "Dealer Manager Agreement") between
the Depositor, the Trust and the Dealer Manger, hereby certifies as follows (all
capitalized terms used herein are used as defined in the Dealer Manager
Agreement):
(A) Each of the representations and warranties of the Depositor and the
Trust set forth in the Dealer Manager Agreement and in the Indenture is true and
correct in all material respects on the date hereof as if on and as of the date
hereof with the same effect as if made on the date hereof;
(B) The Trust has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied under the Documents and
the Exchange Offers at or prior to the date hereof.
STUDENT LOAN FUNDING LLC
Date: June __, 1999 By:
------------------------------------
Title:
---------------------------------
