Exhibit 10.56
INDEMNITY AGREEMENT
AGREEMENT dated as of July 9, 2003, among Banc of America Securities LLC
and Deutsche Bank Securities Inc. (each an "Underwriter" and collectively, the
"Underwriters") and Nelnet Loan Services, Inc., a Nebraska corporation (the
"Company").
WHEREAS, the Underwriters have entered into an underwriting agreement
dated July 9, 2003 (the "Underwriting Agreement") with Nelnet Education Loan
Funding, Inc., a Nebraska corporation (the "Issuer"), to sell, and the
Underwriters have agreed to purchase, subject to the conditions set forth in
the Underwriting Agreement, the Issuer's Student Loan Asset-Backed Notes,
Series 2003-I (the "Notes"), which Notes are being offered for sale by the
Underwriters pursuant to a Prospectus dated June 26, 2003 and a Prospectus
Supplement dated June 26, 2003 (collectively, the "Prospectus"), included as
part of the Issuer's Registration Statement on Form S-3 (Registration No.
333-104736)(the "Registration Statement"); and
WHEREAS, the Notes will be secured by, among other things, a pool of
Financed Eligible Loans that will be serviced by Nelnet, Inc., as master
servicer pursuant to a Master Servicing Agreement dated as of June 1, 2003 (the
"Servicing Agreement") between the Issuer and Nelnet, Inc.;
WHEREAS, the parties hereto wish to set forth their understanding
concerning certain matters relating to indemnification and contribution;
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows.
1. DEFINED TERMS. Capitalized terms used herein but not otherwise
defined shall have the respective meanings set forth in the Underwriting
Agreement.
2. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, and each person, if any, who controls an Underwriter within
the meaning of either Section 15 of the Securities Act of 1933 (the "1933
Act") or Section 20 of the Securities Exchange Act of 1934 (the "1934 Act")
from and against any and all losses, claims, damages, liabilities and
expenses arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, the Prospectus, or in any amendment or supplement thereto, or
any preliminary prospectus, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
to the extent the Issuer is not obligated to indemnify the Underwriters
pursuant to Section 5(a) of the Underwriting Agreement. The foregoing
indemnity agreement shall be in addition to any liability which the Company
may otherwise have.
(b) If any action, suit or proceeding shall be brought against an
Underwriter or any person controlling an Underwriter in respect of which
indemnity may be sought against the Company, the applicable Underwriter or such
controlling person shall promptly notify the parties against whom
indemnification is being sought (the "indemnifying parties"), but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party under Sections 2(a) and 2(c) hereof except
to the extent that the indemnifying party is materially prejudiced by such
omission, and in no event shall the omission so to notify relieve the
indemnifying party from any liability which it may otherwise have. In case any
such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party). The applicable Underwriter or any such controlling person shall have the
right to employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person unless
(i) the indemnifying parties have agreed in writing to pay such fees and
expenses, (ii) the indemnifying parties have failed to assume the defense and
employ counsel, or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both such Underwriter or
such controlling person and the indemnifying parties and such Underwriter or
such controlling person shall have been advised by its counsel that there may be
one or more legal defenses available to it which are different from or
additional to or in conflict with those available to the indemnifying parties
and in the reasonable judgment of such counsel it is advisable for such
Underwriter or such controlling person to employ separate counsel (in which case
the indemnifying party shall not have the right to assume the defense of such
action, suit or proceeding on behalf of such Underwriter or such controlling
person). It is understood, however, that the indemnifying parties shall, in
connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for an Underwriter and
controlling persons not having actual or potential differing interests with such
Underwriter or among themselves, which firm shall be designated in writing by
such Underwriter, and that all such fees and expenses shall be reimbursed on a
monthly basis as provided in paragraph (a) hereof. An indemnifying party will
not, without the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding and does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
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(c) If the indemnification provided for in this Agreement is unavailable
to an indemnified party under paragraph (a) hereof in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the applicable Underwriter on the other hand from the sale of
the Notes, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the applicable Underwriter on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the applicable Underwriter on the other shall be deemed to be in
the same proportion as the total gross proceeds from the sale of the Notes bear
to the total underwriting discounts and commissions received by the applicable
Underwriter in connection with the sale of the Notes. The relative fault of the
Company on the one hand and the applicable Underwriter on the other hand shall
be determined by reference to, among other things, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(d) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Agreement were determined by a pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (c) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in paragraph (c) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
defending any such action, suit or proceeding. Notwithstanding the provisions of
this Agreement, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total underwriting discounts and commissions
received by such Underwriter with respect to the Notes underwritten by such
Underwriter exceed the sum of the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission and the amount of any damages such
Underwriter has been required to pay under the Underwriting Agreement. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Agreement shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Agreement shall remain
operative and in full force and effect, regardless of (i) any investigation
made by or on behalf of the Underwriters, or any person controlling it or its
directors or officers, (ii) acceptance of any Notes and payment therefor
hereunder, and (iii) any termination of this Agreement and the Underwriting
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Agreement. A successor to an Underwriter, the Company or any person
controlling any of them or their respective directors or officers, shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Agreement.
3. NOTICES. All demands, notices and communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed, by registered
or certified mail, return receipt requested, or, if by other means, when
received by the other parties at the address set forth for such parties in the
Underwriting Agreement (in the case of the Underwriters) or the Servicing
Agreement (in the case of the Company), or such other address as may hereafter
by furnished to the other parties by like notice. Any such demand, notice or
communication hereunder shall be deemed to have been received on the date
delivered to or received at the premises of the addressee (as evidenced, in the
case of registered or certified mail, by the date noted on the return receipt).
4. COUNTERPARTS. For the purpose of facilitating proving this Agreement,
and for other purposes, this Agreement may be executed simultaneously in any
number of counterparts. Each counterpart shall be deemed to be an original, and
all such counterparts shall constitute one and the same instrument.
5. GOVERNING LAW. The Agreement shall be construed in accordance with
the laws of the State of New York and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with the laws of the
State of New York, except to the extent preempted by Federal Law.
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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 LOAN SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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.
BANC OF AMERICA SECURITIES LLC
By ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.
By /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President