Exhibit 10.43
NELNET STUDENT LOAN CORPORATION-2
$480,000,000
STUDENT LOAN ASSET-BACKED FIXED RATE NOTES
(SERIES 2001A)
UNDERWRITING AGREEMENT
March 9, 2001
Credit Suisse First Boston Corporation
as representative of the Underwriters
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
NELNET Student Loan Corporation-2, a Nevada corporation (the "Company"),
proposes to sell to Credit Suisse First Boston Corporation (the
"Representative") and the other underwriters listed on Schedule A hereto
(collectively with the Representative, the "Underwriters"), pursuant to the
terms of this Underwriting Agreement, $480,000,000 aggregate principal amount of
its Student Loan Asset-Backed Fixed Rate Notes, Series 2001A (the "Notes").
Zions First National Bank, a national banking association, will act as eligible
lender (the "Eligible Lender") on behalf of the Company. The Notes will be
issued under an Indenture of Trust dated as of June 1, 2000 (the "Master
Indenture") between the Company and Zions First National Bank, a national
banking association, as indenture trustee (the "Trustee"), as supplemented by
the Series 2001A Supplemental Indenture of Trust (the "Indenture Supplement" and
collectively with the Master Indenture, the "Indenture"). Upon issuance, the
Notes will be secured by, among other things, Financed Eligible Loans (as
defined in the Indenture) pledged to the Trustee and described in the Prospectus
(as defined in Section 3 below). The Financed Eligible Loans will be serviced by
NELnet, Inc., a Nevada Corporation ("NELnet") pursuant to a Servicing Agreement
dated as of June 1, 2000 (the "Servicing Agreement"), between NELnet and the
Company. NELnet has entered into loan subservicing agreements with (i)
InTuition, Inc., a Florida corporation ("InTuition"), dated as of June 1, 2000
(the "InTuition Subservicing Agreement") pursuant to which InTuition will act as
subservicer with respect to certain of the Financed Eligible Loans and (ii)
UNIPAC Service Corporation ("UNIPAC") dated as of June 1, 2000 (the "UNIPAC
Subservicing Agreement") pursuant to which UNIPAC will act as subservicer with
respect to certain of the Financed Eligible Loans. The InTuition Subservicing
Agreement and the UNIPAC Subservicing Agreement are referred to collectively as
the "Subservicing Agreements."
This Agreement, the Loan Purchase Agreement, dated as of April 1, 2001
between NHELP-I, Inc. ("NHELP-I") and the Company (along with the related Loan
Transfer Addendum, the " NHELP-I Purchase Agreement"), the Loan Purchase
Agreement, dated as of April 1, 2001 between NHELP-III, Inc. ("NHELP-III") and
the Company (along with the related Loan Transfer Addendum, the "NHELP-III
Purchase Agreement"), the Loan Purchase Agreement, dated as of April 1, 2001
between NELNET Student Loan Corporation-1 ("NELNET-1") and the Company (along
with the related Loan Transfer Addendum, the "NELNET-1 Purchase Agreement"), the
Loan Purchase Agreement, dated as of April 1, 2001 between NEBHELP, Inc.
("NEBHELP ") and the Company (along with the related Loan Transfer Addendum, the
"NEBHELP Purchase Agreement" and, collectively with the NHELP-I Purchase
Agreement, the NHELP-III Purchase Agreement and the NELNET-1 Purchase Agreement,
the "Purchase Agreements"), the Servicing Agreement, the Subservicing Agreements
and the Indenture shall collectively hereinafter be referred to as the "Basic
Documents."
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Indenture or the Prospectus.
The Company proposes, upon the terms and conditions set forth herein, to
sell to each of the Underwriters on the Closing Date (as hereinafter defined)
the aggregate principal amount of each Class of Notes set forth next to the name
of each Underwriter on Schedule A hereto.
The Company wishes to confirm as follows this agreement with the
Underwriters in connection with the purchase and resale of the Notes.
1. AGREEMENTS TO SELL, PURCHASE AND RESELL. (a) The Company
hereby agrees, subject to all the terms and conditions set forth herein, to sell
to each of the Underwriters and, upon the basis of the representations,
warranties and agreements of the Company herein contained and subject to all the
terms and conditions set forth herein, each of the Underwriters severally and
not jointly agrees to purchase from the Company, such principal amount of the
Notes at such respective purchase prices as are set forth on Schedule A hereto.
(b) It is understood that the Underwriters propose to
offer the Notes for sale to the public (which may include selected dealers) as
set forth in the Prospectus.
2. DELIVERY OF THE NOTES AND PAYMENT THEREFOR. Delivery to the
Underwriters of and payment for the Notes shall be made at the office of ▇▇▇▇▇
▇▇▇▇ LLP, Denver, Colorado, at 11:00 a.m., Denver time, on April 2, 2001 (the
"Closing Date"). The place of such closing and the Closing Date may be varied by
agreement between the Representative and the Company.
The Notes will be delivered to the Underwriters against payment of the
purchase price therefor to the Company in Federal Funds, by wire transfer to an
account at a bank acceptable to the Representative, or such other form of
payment as to which the parties may agree. Unless otherwise agreed to by the
Company and the Representative, each Class of Notes will be evidenced by a
single global security in definitive form deposited with the Trustee as
custodian for DTC and/or by additional definitive securities, and will be
registered, in the case of the global Classes of Notes, in the name of Cede &
Co. as nominee of The Depository Trust Company ("DTC"), and in the other cases,
in such names and in such denominations as the Underwriters shall request prior
to 1:00 p.m., New York City time, no later than the business day preceding the
Closing Date. The Notes to be delivered to the Underwriters shall be made
available to the Underwriters in Denver, Colorado, for inspection and packaging
not later than 9:30 a.m., Denver time, on the business day next preceding the
Closing Date.
2
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each of the Underwriters that:
(a) registration statement on Form S-3 (No. 333-93865),
including a prospectus and such amendments thereto as may have been
required to the date hereof, relating to the Notes and the offering
thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Act"), has been filed with the
Securities and Exchange Commission (the "SEC" or the "Commission") and
such registration statement, as amended, has become effective; such
registration statement, as amended, and the prospectus relating to the
sale of the Notes offered thereby constituting a part thereof, as from
time to time amended or supplemented (including the base prospectus, any
prospectus supplement filed with the Commission pursuant to Rule 424(b)
under the Act, the information deemed to be a part thereof pursuant to
Rule 430A(b) under the Act, and the information incorporated by
reference therein) are respectively referred to herein as the
"Registration Statement" and the "Prospectus" respectively; and the
conditions to the use of a registration statement on Form S-3 under the
Act, as set forth in the General Instructions to Form S-3, and the
conditions of Rule 415 under the Act, have been satisfied with respect
to the Registration Statement;
(b) On the effective date of the Registration Statement,
the Registration Statement and the Prospectus conformed in all respects
to the requirements of the Act, the rules and regulations of the SEC
(the "Rules and Regulations") and the Trust Indenture Act of 1939, as
amended, and the rules and regulations thereunder (the "Trust Indenture
Act"), and, except with respect to information omitted pursuant to Rule
430A of the Act, did not include any untrue statement of a material fact
or, in the case of the Registration Statement, omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and, in the case of the Prospectus,
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and on the date of this Agreement and on the Closing
Date, the Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act, the Rules and Regulations and
the Trust Indenture Act, and neither of such documents included or will
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the foregoing
does not apply to statements in or omissions from the Registration
Statement or the Prospectus based upon written information furnished to
the Company by the Underwriters, specifically for use therein.
(c) The Commission has not issued and, to the best
knowledge of the Company, is not threatening to issue any order
preventing or suspending the use of the Registration Statement.
3
(d) As of the Closing Date, each consent, approval,
authorization or order of, or filing with, any court or governmental
agency or body which is required to be obtained or made by the Company
or its affiliates for the consummation of the transactions contemplated
by this Agreement shall have been obtained, except as otherwise provided
in the Basic Documents.
(e) The Master Indenture and the Indenture Supplement have
been duly and validly authorized by the Company and, upon their
execution and delivery by the Company and assuming due authorization,
execution and delivery by the Trustee, will be valid and binding
agreements of the Company, enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
or other similar laws affecting creditors' rights generally and conform
in all material respects to the description thereof in the Prospectus.
The Master Indenture has been duly qualified under the Trust Indenture
Act with respect to the Notes.
(f) The Notes have been duly authorized by the Company and
the Notes to be issued on the Closing Date, when executed by the Company
and authenticated by the Trustee in accordance with the Indenture, and
delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will have been validly issued and delivered, and
will constitute valid and binding obligations of the Company entitled to
the benefits of the Indenture and enforceable in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance or other similar laws
relating to or affecting creditors' rights generally and court decisions
with respect thereto, and the Notes will conform in all material
respects to the description thereof in the Prospectus.
(g) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
Supplement and as conducted on the date hereof, and is duly registered
and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct
of its business requires such registration or qualification, except
where the failure so to register or qualify does not have a material
adverse effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the
Company.
(h) Other than as contemplated by this Agreement or as
disclosed in the Prospectus, there is no broker, finder or other party
that is entitled to receive from the Company or any of its affiliates
any brokerage or finder's fee or other fee or commission as a result of
any of the transactions contemplated by this Agreement.
(i) There are no legal or governmental proceedings pending
or threatened or, to the knowledge of the Company contemplated, against
the Company, or to which the Company or any of its properties is
subject, that are not disclosed in the Prospectus and which, if
adversely decided, would individually or in the aggregate have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company ("Material Adverse
Effect"), or would materially and adversely affect the ability of the
4
Company to perform its obligations under this Agreement and the other
Basic Documents or otherwise materially affect the issuance of the Notes
or the consummation of the transactions contemplated hereby or by the
Basic Documents.
(j) Neither the offer, sale or delivery of the Notes by
the Company nor the execution, delivery or performance of this Agreement
or the Basic Documents by the Company, nor the consummation by the
Company of the transactions contemplated hereby or thereby (i) requires
or will require any consent, approval, authorization or other order of,
or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official
(except for compliance with the securities or Blue Sky laws of various
jurisdictions, the qualification of the Indenture under the Trust
Indenture Act and such other consents, approvals or authorizations as
shall have been obtained prior to the Closing Date) or conflicts or will
conflict with or constitutes or will constitute a breach of, or a
default under, the organizational documents or bylaws of the Company or
(ii) conflicts or will conflict with or constitutes or will constitute a
breach of, or a default under, in any material respect, any material
agreement, indenture, lease or other instrument to which the Company is
a party or by which the Company or any of its properties may be bound,
or violates or will violate in any material respect any statute, law,
regulation or filing or judgment, injunction, order or decree applicable
to the Company or any of its properties, or will result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to the terms of any agreement or
instrument to which it is a party or by which it may be bound or to
which any of its properties is subject other than as contemplated by the
Basic Documents.
(k) The Company has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement and
the other Basic Documents to which it is a party; the execution and
delivery of, and the performance by the Company of its obligations
under, this Agreement and the other Basic Documents to which it is a
party have been duly and validly authorized by the Company and this
Agreement and the other Basic Documents have been duly executed and
delivered by the Company and constitute the valid and legally binding
agreements of the Company, enforceable against the Company in accordance
with their respective terms, except as the enforcement hereof and
thereof may be limited by bankruptcy, insolvency, moratorium, fraudulent
conveyance or other similar laws relating to or affecting creditors'
rights generally and court decisions with respect thereto and subject to
the applicability of general principles of equity, and except as rights
to indemnity and contribution hereunder and thereunder may be limited by
Federal or state securities laws or principles of public policy.
(l) The Seller's assignment and delivery of Financed
Eligible Loans to the order of the Trustee on behalf of the Company as
of the applicable sale date described in the Purchase Agreements will
vest in the Trustee on behalf of the Company all of the Seller's right,
title and interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
(m) The Company's assignment of the Financed Eligible
Loans to the Trustee pursuant to the Indenture will vest in the Trustee,
for the benefit of the Noteholders, a first priority perfected security
5
interest therein, subject to no prior lien, mortgage, security interest,
pledge, adverse claim, charge or other encumbrance.
(n) The Company is not, nor as a result of the issuance
and sale of the Notes as contemplated hereunder will it become, subject
to registration as an "investment company" under the Investment Company
Act of 1940, as amended (the "1940 Act").
(o) The representations and warranties made by the Company
in any Basic Document to which the Company is a party and made in any
Officer's Certificate of the Company will be true and correct at the
time made and on and as of the applicable Closing Date.
4. AGREEMENTS OF THE COMPANY. The Company agrees with each of
the Underwriters as follows:
(a) The Company will prepare a supplement to the
Prospectus setting forth the amount of the Notes covered thereby and the
terms thereof not otherwise specified in the Prospectus, the price at
which the Notes are to be purchased by the Underwriters, either the
initial public offering price or the method by which the price at which
the Notes are to be sold will be determined, the selling concessions and
reallowances, if any, and such other information as the Underwriters and
the Company deem appropriate in connection with the offering of the
Notes, and the Company will timely file such supplement to the
prospectus with the SEC pursuant to Rule 424(b) under the Act, but the
Company will not file any amendments to the Registration Statement as in
effect with respect to the Notes or any amendments or supplements to the
Prospectus, unless it shall first have delivered copies of such
amendments or supplements to the Underwriters, with reasonable
opportunity to comment on such proposed amendment or supplement or if
the Underwriters shall have reasonably objected thereto promptly after
receipt thereof; the Company will immediately advise the Underwriters or
the Underwriters' counsel (i) when notice is received from the SEC that
any post-effective amendment to the Registration Statement has become or
will become effective and (ii) of any order or communication suspending
or preventing, or threatening to suspend or prevent, the offer and sale
of the Notes or of any proceedings or examinations that may lead to such
an order or communication, whether by or of the SEC or any authority
administering any state securities or Blue Sky law, as soon as the
Company is advised thereof, and will use its best efforts to prevent the
issuance of any such order or communication and to obtain as soon as
possible its lifting, if issued.
(b) If, at any time when the Prospectus relating to the
Notes is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend or supplement the Prospectus to comply
with the Act or the Rules and Regulations, the Company promptly will
notify the Representative of such event and will promptly prepare and
file with the SEC, at its own expense, an amendment or supplement to
such Prospectus that will correct such statement or omission or an
6
amendment that will effect such compliance. Neither the Representative's
consent to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth
in Section 6 hereof.
(c) The Company will immediately inform the Underwriters
(i) of the receipt by the Company of any communication from the SEC or
any state securities authority concerning the offering or sale of the
Notes and (ii) of the commencement of any lawsuit or proceeding to which
the Company is a party relating to the offering or sale of the Notes.
(d) The Company will furnish to the Underwriters, without
charge, copies of the Registration Statement (including all documents
and exhibits thereto or incorporated by reference therein), the
Prospectus, and all amendments and supplements to such documents
relating to the Notes, in each case in such quantities as the
Underwriters may reasonably request.
(e) No amendment or supplement will be made to the
Registration Statement or Prospectus which the Underwriters shall not
previously have been advised or to which it shall reasonably object
after being so advised.
(f) The Company will cooperate with the Underwriters and
with their counsel in connection with the qualification of, or
procurement of exemptions with respect to, the Notes for offering and
sale by the Underwriters and by dealers under the securities or Blue Sky
laws of such jurisdictions as the Underwriters may designate and will
file such consents to service of process or other documents necessary or
appropriate in order to effect such qualification or exemptions;
provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to
take any action which would subject it to service of process in suits,
other than those arising out of the offering or sale of the Notes, in
any jurisdiction where it is not now so subject.
(g) The Company consents to the use, in accordance with
the securities or Blue Sky laws of such jurisdictions in which the Notes
are offered by the Underwriters and by dealers, of the Prospectus
furnished by the Company.
(h) To the extent, if any, that the rating or ratings
provided with respect to the Notes by the rating agency or agencies that
initially rate the Notes is conditional upon the furnishing of documents
or the taking of any other actions by the Company, the Company shall
cause to be furnished such documents and such other actions to be taken.
(i) So long as any of the Notes are outstanding, the
Company will furnish to the Underwriters (i) as soon as available, a
copy of each document relating to the Notes required to be filed with
the SEC pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any order of the SEC thereunder, and (ii) such other
information concerning the Company as the Underwriters may request from
time to time.
7
(j) If this Agreement shall terminate or shall be
terminated after execution and delivery pursuant to any provisions
hereof (otherwise than by notice given by the Representative terminating
this Agreement pursuant to Section 8 or Section 9 hereof) or if this
Agreement shall be terminated by the Representative because of any
failure or refusal on the part of the Company to comply with the terms
or fulfill any of the conditions of this Agreement, the Company agrees
to reimburse the Underwriters for all out-of-pocket expenses (including
fees and expenses of their counsel) reasonably incurred by it in
connection herewith, but without any further obligation on the part of
the Company for loss of profits or otherwise.
(k) The net proceeds from the sale of the Notes hereunder
will be applied substantially in accordance with the description set
forth in the Prospectus.
(l) Except as stated in this Agreement and in the
Prospectus, the Company has not taken, nor will it take, directly or
indirectly, any action designed to or that might reasonably be expected
to cause or result in stabilization or manipulation of the price of the
Notes to facilitate the sale or resale of the Notes.
(m) For a period from the date of this Agreement until the
retirement of the Notes, the Company will deliver to you the annual
statements of compliance and the annual independent certified public
accountants' reports furnished to the Trustee or the Company pursuant to
the Servicing Agreement as soon as such statements and reports are
furnished to the Trustee or the Company.
(n) On or before the Closing Date, the Company shall ▇▇▇▇
its accounting and other records, if any, relating to the Financed
Eligible Loans and shall cause the Servicer, UNIPAC and InTuition to
▇▇▇▇ their respective computer records relating to the Financed Eligible
Loans to show the absolute ownership by the Trustee, as eligible lender
of, and the interest of the Company in, the Initial Financed Eligible
Loans, and from and after each Closing Date the Company will take, or
cause the Servicer, UNIPAC and InTuition to take, as the case may be,
such actions with respect to the respective records of each with regard
to any Additional Acquired Eligible Loans at the time of the acquisition
thereof by the Trustee on behalf of the Company and the Company shall
not take, or shall permit any other person to take, any action
inconsistent with the ownership of, and the interest of the Company in,
the Financed Eligible Loans, other than as permitted by the Basic
Documents.
(o) For the period beginning on the date of this Agreement
and ending 90 days hereafter, none of the Company and any entity
affiliated, directly or indirectly, with the Company will, without the
prior written notice to the Underwriters, offer to sell or sell notes
(other than the Notes) collateralized by FFELP Loans; provided, however,
that this shall not be construed to prevent the sale of FFELP Loans by
the Company.
(p) If, at the time the Registration Statement became
effective, any information shall have been omitted therefrom in reliance
upon Rule 430A under the 1933 Act, then, immediately following the
execution of this Agreement, the Company will prepare, and file or
transmit for filing with the Commission in accordance with such Rule
430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus
containing all information so omitted.
8
(q) As soon as practicable, but not later than 16 months
after the date of this Agreement, the Company will make generally
available to its securityholders an earnings statement covering a period
of at least 12 months beginning after the later of (i) the effective
date of the Registration Statement, (ii) the effective date of the most
recent post-effective amendment to the Registration Statement to become
effective prior to the date of this Agreement and (iii) the date of the
Company's most recent Annual Report or Form 10-K filed with the
Commission prior to the date of this Agreement, which will satisfy the
provisions of Section 11(a) of the Act.
5. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each of the Underwriters and each person, if any,
who controls an Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and expenses (or actions in respect thereof) arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Prospectus, or in any
amendment or supplement thereto, or any preliminary prospectus, or arising out
of or based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability, or action as
such expenses are incurred, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which has been made therein or
omitted therefrom in reliance upon and in conformity with the information
relating to an Underwriter furnished in writing to the Company by or on behalf
of such Underwriter through the Representative expressly for use therein, it
being understood that the only such information furnished by any Underwriter
consists of the information described as such in Section 10 of this Agreement;
provided, however, that the indemnification contained in this paragraph.
(a) with respect to any preliminary prospectus shall not
inure to the benefit of an Underwriter (or to the benefit of any person
controlling an Underwriter) on account of any such loss, claim, damage,
liability or expense arising from the sale of the of Notes by an
Underwriter to any person if the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained
in such preliminary prospectus was corrected in the final Prospectus and
such Underwriter sold Notes to that person without sending or giving at
or prior to the written confirmation of such sale, a copy of the final
Prospectus (as then amended or supplemented but excluding documents
incorporated by reference therein) if the Company has previously
furnished sufficient copies thereof to such Underwriter. 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, such
Underwriter or such controlling person shall promptly notify the parties
against whom indemnification is being sought (the "indemnifying
parties"), but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
except to the extent that the indemnifying party is materially
9
prejudiced by such omission. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party). The applicable Underwriter or any such controlling
person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of
such Underwriter or such controlling person unless (i) the indemnifying
parties have agreed in writing to pay such fees and expenses, (ii) the
indemnifying parties have failed to assume the defense and employ
counsel, or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both the
Underwriter or such controlling person and the indemnifying parties and
the Underwriter or such controlling person shall have been advised by
its counsel that there may be one or more legal defenses available to it
which are different from or additional to or in conflict with those
available to the indemnifying parties and in the reasonable judgment of
such counsel it is advisable for the Underwriter or such controlling
person to employ separate counsel (in which case the indemnifying party
shall not have the right to assume the defense of such action, suit or
proceeding on behalf of the Underwriter or such controlling person). It
is understood, however, that the indemnifying parties shall, in
connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only
one separate firm of attorneys (in addition to any local counsel) at any
time for each Underwriter and controlling persons not having actual or
potential differing interests with such Underwriter or among themselves,
which firm shall be designated in writing by such Underwriter, and that
all such fees and expenses shall be reimbursed on a monthly basis as
provided in paragraph (a) hereof. An indemnifying party will not,
without the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii)
does not include a statement as to, or an admission of fault,
culpability or a failure to act by or on behalf of an indemnified party.
(c) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company and its directors and officers,
and any person who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, to the same extent as the
indemnity from the Company to the Underwriters set forth in paragraph
(a) hereof, but only with respect to information relating to an
Underwriter furnished in writing by or on behalf of such Underwriter
through the Representative expressly for use in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or
any related preliminary prospectus therein, it being understood that the
10
only such information furnished by any Underwriter consists of the
information described as such in Section 10 of this Agreement. If any
action, suit or proceeding shall be brought against the Company, any of
its directors or officers, or any such controlling person based on the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus and in respect of which
indemnity may be sought against an Underwriter pursuant to this
paragraph (c), such Underwriter shall have the rights and duties given
to the Company by paragraph (b) above (except that if the Company shall
have assumed the defense thereof the Underwriter shall not be required
to do so, but may employ separate counsel therein and participate in the
defense thereof, but the fees and expenses of such counsel shall be at
such Underwriter's expense), and the Company, its directors and
officers, and any such controlling person shall have the rights and
duties given to the Underwriters by paragraph (b) above. The foregoing
indemnity agreement shall be in addition to any liability which the
Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 5
is unavailable to an indemnified party under paragraphs (a) or (c)
hereof in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then an indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the applicable Underwriter on the other hand from the
offering of the Notes, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of 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 an Underwriter on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Notes
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriter. The
relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or by an Underwriter
on the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 5
were determined by a pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action,
suit or proceeding. Notwithstanding the provisions of this Section 5, no
11
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes underwritten by it
and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this paragraph (e)
to contribute are several in proportion to their respective underwriting
obligations.
(f) Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or
contribution under this Section 5 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section 5 and the representations and
warranties of the Company and the Underwriters set forth in this
Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of the
Underwriters, the Company or any person controlling any of them or their
respective directors or officers, (ii) acceptance of any Notes and
payment therefor hereunder, and (iii) any termination of this Agreement.
A successor to the Underwriters, 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 Section 5.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters to purchase the Notes hereunder are subject to
the following conditions precedent:
(a) All actions required to be taken and all filings
required to be made by the Company under the Act prior to the sale of
the Notes shall have been duly taken or made. At and prior to the
Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the
Company or the Underwriters, shall be contemplated by the Commission.
(b) Subsequent to the effective date of this Agreement,
there shall not have occurred (i) any change, or any development or
event involving a prospective change, in or affecting the condition
(financial or other), business, properties, net worth, or results of
operations of the Company, the Sellers, the Servicer, UNIPAC or
InTuition not contemplated by the Registration Statement, which in the
opinion of the Representative, would materially adversely affect the
market for the Notes, (ii) any downgrading in the rating of any debt
securities of the Company, a Seller, the Servicer, UNIPAC or InTuition
by any nationally recognized statistical rating organization or any
public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company, a Seller, the
Servicer, UNIPAC or InTuition (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating), or (iii) any event or development which
makes any statement made in the Registration Statement or Prospectus
12
untrue or which, in the opinion of the Company and its counsel or the
Underwriters and their counsel, requires the filing of any amendment to
or change in the Registration Statement or Prospectus in order to state
a material fact required by any law to be stated therein or necessary in
order to make the statements therein not misleading, if amending or
supplementing the Registration Statement or Prospectus to reflect such
event or development would, in the opinion of the Representative,
materially adversely affect the market for the Notes.
(c) You shall have received an opinion addressed to you of
▇▇▇▇▇ ▇▇▇▇ LLP, in its capacity as counsel to the Company, dated the
Closing Date, in form and substance satisfactory to you and your counsel
with respect to the status of the Company, to each of the Purchase
Agreements, Servicing Agreement, Indenture and this Agreement and to the
validity of the Notes and such related matters as you shall reasonably
request. In addition, you shall have received an opinion addressed to
you of ▇▇▇▇▇ ▇▇▇▇ LLP, in its capacity as counsel for the Company, in
form and substance satisfactory to you and your counsel, concerning
"true sale," "non-consolidation" and "first perfected security
interest" and certain other issues with respect to the transfer of the
Financed Eligible Loans from the Sellers to the Company and from the
Company to the Trustee.
(d) You shall have received an opinion addressed to you of
▇▇▇▇▇ ▇▇▇▇ LLP, in its capacity as counsel for the Company, dated the
Closing Date, in form and substance satisfactory to you and your counsel
to the effect that the statements in the Prospectus under the headings
"Federal Income Tax Consequences" and "ERISA Considerations", to the
extent that they constitute statements of matters of law or legal
conclusions with respect thereto, have been prepared or reviewed by such
counsel and are correct in all material respects.
(e) You shall have received an opinion addressed to you of
▇▇▇▇▇ ▇▇▇▇ LLP, in its capacity as counsel for the Company, dated the
Closing Date, in form and substance satisfactory to you and your counsel
with respect to the character of the Notes for federal tax purposes.
(f) You shall have received an opinion addressed to you of
Stroock & Stroock & ▇▇▇▇▇ LLP, in its capacity as Underwriters' Counsel,
dated the Closing Date, in form and substance satisfactory to you.
(g) You shall have received an opinion addressed to you of
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, in its capacity as counsel for
the Company, dated the Closing Date in form and substance satisfactory
to you and your counsel with respect to the Prospectus and the
Registration Statement and certain matters arising under the Trust
Indenture Act of 1939, as amended, and the Investment Company Act of
1940, as amended.
(h) You shall have received opinions addressed to you of
Perry, Guthery, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C. in their capacity as counsel to
NELnet and each of the Sellers, each dated the Closing Date and
satisfactory in form and substance to you and your counsel, to the
effect that:
13
(i) Each of NELnet and each of the Sellers is a
corporation in good standing under the laws of the State of Nevada;
each having the full power and authority (corporate and other) to own
its properties and conduct its business, as presently conducted by
it, and to enter into and perform its obligations under each of the
Servicing Agreements, the Purchase Agreements and the Subservicing
Agreements to which it is a party.
(ii) The Purchase Agreements have been duly
authorized, executed and delivered by the respective Seller and the
Servicing Agreement and the Subservicing Agreements have been duly
authorized, executed and delivered by NELnet and each such agreement
is the legal, valid and binding obligations of the respective Seller
and NELnet, as the case may be, enforceable against each such Seller
and NELnet, as the case may be, in accordance with their respective
terms, except (x) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights and (y)
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(iii) Neither the execution and delivery by NELnet
of the Servicing Agreement or the Subservicing Agreements, or the
execution by each Seller of the respective Purchase Agreement, nor
the consummation by NELnet or each Seller of the transactions
contemplated therein nor the fulfillment of the terms thereof by
NELnet or each Seller will conflict with, result in a breach,
violation or acceleration of, or constitute a default under, any term
or provision of the by-laws of NELnet or each Seller or of any
indenture or other agreement or instrument to which NELnet or any
Seller is a party or by which NELnet or any Seller is bound, or
result in a violation of or contravene the terms of any statute,
order or regulation applicable to NELnet or any Seller of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over NELnet or any Seller.
(iv) There are no actions, proceedings or
investigations pending or, to the best of such counsel's knowledge
after due inquiry and reasonable investigation, threatened against
NELnet or any Seller before or by any governmental authority that
might materially and adversely affect the performance by NELnet or
any Seller of its obligations under, or the validity or
enforceability of, the Servicing Agreement, the Subservicing
Agreements or the Purchase Agreements to which it is a party.
(v) Nothing has come to such counsel's attention
that would lead such counsel to believe that the representations and
warranties of NELnet contained in the Servicing Agreement, or the
Subservicing Agreements or the representations and warranties of the
Sellers contained in the Purchase Agreements are other than as stated
therein.
14
(vi) No authorization, approval, or other action
by, and no notice to or filing with, any governmental authority or
regulatory body is required (a) for the due execution, delivery and
performance by NELnet of the Servicing Agreement or the Subservicing
Agreements, (b) for the due execution, delivery and performance by
each Seller of the respective Purchase Agreement or (c) for the
perfection of the Company's and the Trustee's interest in the Student
Loans sold pursuant to the Purchase Agreements or the exercise by the
Company (or its permitted assigns) and the Trustee of their rights
and remedies under the Purchase Agreements, including specifically
the filings of any Uniform Commercial Code financing statements,
except for the execution and delivery of the Guarantee Agreements.
(vii) The Purchase Agreements together with the
related ▇▇▇▇ of sale and blanket endorsement effects a valid sale to
the Trustee of the Student Loans to be sold under the Purchase
Agreements enforceable against creditors of, and purchasers from, the
respective Seller.
(viii) As of the date specified in a schedule to
such opinion, there were no (a) UCC financing statements naming a
Seller as debtor or seller and covering any Student Loans to be sold
under the related Purchase Agreement or interest therein or (b)
notices of the filing of any federal tax lien (filed pursuant to
Section 6323 of the Internal Revenue Code) or lien of the Pension
Benefit Guaranty Corporation (filed pursuant to Section 4068 of
ERISA) covering any Student Loan to be sold under the related
Purchase Agreement or interest therein, listed in the available
records in the respective offices set forth in such schedule opposite
each such date (which are all of the offices that are prescribed
under either the internal law of the conflict of law rules of the
Nebraska UCC as the offices in which filings should be made to
perfect security interests in Student Loans), except as set forth in
such schedule.
(ix) As of the date of such opinion, by executing
the Guarantee Agreements and upon execution and delivery of the
instruments of transfer described in the Purchase Agreements and
notification of the Guarantors and borrowers of the transfer
contemplated thereby, and assuming that the Trustee is an eligible
lender as that term is defined in 20 U.S.C. ss.1085(d)(1) of the
Higher Education Act of 1965, as amended, the Trustee on behalf of
the Company will be entitled to the benefit of the applicable
Guarantor and/or Department of Education payments under the Act
related to the Student Loans sold from time to time under the
Purchase Agreements, subject to the terms and conditions of the
Guarantee Agreements and the Act.
(i) You shall have received an opinion addressed to you of
counsel to the Trustee, dated the Closing Date and in form and substance
satisfactory to you and your counsel, to the effect that:
(i) The Trustee is a national banking association
duly organized and validly existing under the laws of the United
States of America.
15
(ii) The Trustee has the full corporate trust power
to accept the office of indenture trustee under the Indenture and to
enter into and perform its obligations under the Indenture, the
Custodian Agreements and each Guarantee Agreement.
(iii) The execution and delivery of each of the
Indenture, the Custodian Agreements and each Guarantee Agreement, and
the performance by the Trustee of its obligations under the
Indenture, the Custodian Agreements and each Guarantee Agreement,
have been duly authorized by all necessary action of the Trustee and
each has been duly executed and delivered by the Trustee.
(iv) The Indenture, the Custodian Agreements and
each Guarantee Agreement constitute valid and binding obligations of
the Trustee enforceable against the Trustee.
(v) The execution and delivery by the Trustee of
the Indenture, the Custodian Agreement and each Guarantee Agreement
do not require any consent, approval or authorization of, or any
registration or filing with, any state or United States Federal
governmental authority.
(vi) Each of the Notes has been duly authenticated
by the Trustee.
(vii) Neither the consummation by the Trustee of
the transactions contemplated in the Indenture, the Custodian
Agreements and each Guarantee Agreement nor the fulfillment of the
terms thereof by the Trustee will conflict with, result in a breach
or violation of, or constitute a default under any law or the
charter, by-laws or other organizational documents of the Trustee or
the terms of any indenture or other agreement or instrument known to
such counsel and to which the Trustee or any of its subsidiaries is a
party or is bound or any judgment, order or decree known to such
counsel to be applicable to the Trustee or any of its subsidiaries of
any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Trustee or any of its
subsidiaries.
(viii) There are no actions, suits or proceedings
pending or, to the best of such counsel's knowledge after due
inquiry, threatened against the Trustee (as indenture trustee under
the Indenture or in its individual capacity) before or by any
governmental authority that might materially and adversely affect the
performance by the Trustee of its obligations under, or the validity
or enforceability of, the Indenture, the Custodian Agreements or any
Guarantee Agreement.
(ix) The execution, delivery and performance by the
Trustee of the Indenture, the Custodian Agreements or any Guarantee
Agreement will not subject any of the property or assets of the
Company or any portion thereof, to any lien created by or arising
under the Indenture that is unrelated to the transactions
contemplated in such agreements.
16
(x) The Trustee is an "eligible lender" for
purposes of the FFELP Program in its capacity as trustee with respect
to Financed Eligible Loans held under the Indenture.
(j) You shall have received certificates addressed to you
dated the Closing Date of any two of the Chairman of the Board, the
President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the principal
financial officer or the principal accounting officer of each Seller and
the Servicer in which such officers shall state that, to the best of
their knowledge after reasonable investigation, (i) the representations
and warranties of such Seller or the Servicer, as the case may be,
contained in the respective Purchase Agreement, the Servicing Agreement
and the Subservicing Agreements, as applicable, are true and correct in
all material respects, that each of such Seller and the Servicer has
complied with all agreements and satisfied all conditions on its part to
be performed or satisfied under such agreements at or prior to the
Closing Date, (ii) that they have reviewed the Prospectus and that the
information therein regarding such Seller or the Servicer, as
applicable, is fair and accurate in all material respects, and (iii)
since the date set forth in such certificate, except as may be disclosed
in the Prospectus, no material adverse change or any development
involving a prospective material adverse change, in or affecting
particularly the business or properties of such Seller or the Servicer,
as applicable, has occurred.
(k) You shall have received certificates addressed to you
dated the Closing Date of any two of the Chairman of the Board, the
President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the principal
financial officer or the principal accounting officer of UNIPAC and
InTuition in which such officers shall state that, to the best of their
knowledge after reasonable investigation, (i) the representations and
warranties of UNIPAC and InTuition contained in the Subservicing
Agreements are true and correct in all material respects, that each of
UNIPAC and InTuition has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such
agreements at or prior to the Closing Date, (ii) that they have reviewed
the Prospectus and that the information therein regarding UNIPAC and
InTuition is fair and accurate in all material respects, and (iii) since
the date set forth in such certificate, except as may be disclosed in
the Prospectus, no material adverse change or any development involving
a prospective material adverse change in, or affecting particularly the
business or properties of UNIPAC and InTuition has occurred.
(l) You shall have received evidence satisfactory to you
that, on or before the Closing Date, UCC-1 financing statements have
been or are being filed in the office of the Secretary of State of the
States of Nevada and Nebraska reflecting the grant of the security
interest by the Company in the Financed Eligible Loans and the proceeds
thereof to the Trustee.
(m) You shall have received a certificate addressed to you
dated the Closing Date from a responsible officer acceptable to you of
the Trustee in form and substance satisfactory to you and your counsel
and to which shall be attached each Guarantee Agreement.
17
(n) The Underwriters shall have received on the Closing
Date from KPMG Peat Marwick a letter dated the Closing Date, and in form
and substance satisfactory to the Representative, to the effect that
they have carried out certain specified procedures, not constituting an
audit, with respect to certain information regarding the Financed
Eligible Loans and setting forth the results of such specified
procedures.
(o) All the representations and warranties of the Company
contained in this Agreement and the Basic Documents shall be true and
correct in all material respects on and as of the date hereof and on and
as of the Closing Date as if made on and as of the Closing Date and the
Underwriters shall have received a certificate, dated the Closing Date
and signed by an executive officer of the Company to the effect set
forth in this Section 6(o) and in Section 6(p) hereof.
(p) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements
herein contained and required to be performed or complied with by it
hereunder at or prior to the Closing Date.
(q) The Underwriters shall have received by instrument
dated the Closing Date (at the option of the Representative), in lieu of
or in addition to the legal opinions referred to in this Section 6, the
right to rely on opinions provided by such counsel and all other counsel
under the terms of the Basic Documents.
(r) The Series 2001A Notes shall be rated "AAA", "AAA" and
"Aaa", respectively, by Fitch, Inc. ("Fitch"), Standard & Poor's Ratings
Service, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies ("S&P"), and ▇▇▇▇▇'▇
Investors Services, Inc. ("Moody's"), and that neither Fitch, S&P nor
Moody's have placed the Series 2001A Notes under surveillance or review
with possible negative implications.
(s) The issuance of the Notes shall not have resulted in a
reduction or withdrawal by Fitch, S&P or Moody's of the current rating
of any outstanding securities issued or originated by the Company or any
of its affiliates.
(t) You shall have received evidence satisfactory to you
of the completion of all actions necessary to effect the transfer of the
Financed Eligible Loans as described in the Prospectus and the
recordation thereof on the Sellers', UNIPAC's and InTuition's computer
systems.
(u) You shall have received certificates addressed to you
dated the Closing Date from officers of the Company addressing such
additional matters as you may reasonably request in form and substance
satisfactory to you and your counsel.
(v) You shall have received a signed Indemnity Agreement
from UNIPAC Service Corporation in form and substance satisfactory to
you and your counsel.
18
(w) You shall have received such other opinions,
certificates and documents as are required under the Indenture as a
condition to the issuance of the Notes.
The Company will provide or cause to be provided to you such
conformed copies of such of the foregoing opinions, notes, letters and documents
as you reasonably request.
7. EXPENSES. The Company agrees to pay or to otherwise cause the
payment of the following costs and expenses and all other costs and expenses
incident to the performance by it of its obligations hereunder: (i) the
preparation, printing or reproduction of the Registration Statement, the
Prospectus and each amendment or supplement to any of them, this Agreement, and
each other Basic Document; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of the Registration Statement, the Prospectus and all amendments
or supplements to any of them as may be reasonably requested for use in
connection with the offering and sale of the Notes; (iii) the preparation,
printing, authentication, issuance and delivery of definitive certificates for
the Notes; (iv) the printing (or reproduction) and delivery of this Agreement,
the preliminary and supplemental Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Notes; (v) qualification of the Indenture under the Trust Indenture Act;
(vi) the qualification of the Notes for offer and sale under the securities or
Blue Sky laws of the several states as provided in Section 3(h) hereof
(including the reasonable fees, expenses and disbursements of counsel relating
to the preparation, printing or reproduction, and delivery of the preliminary
and supplemental Blue Sky Memoranda and such qualification); (vii) the fees and
disbursements of (A) the Company's counsel, (B) the Underwriters' counsel, (C)
the Trustee and its counsel, (D) the Depository Trust Company in connection with
the book-entry registration of the Notes (E) the SEC and (F) KPMG Peat Marwick,
accountants for the Company and issuer of the Comfort Letter; (viii) the fees
charged by S&P, Fitch and ▇▇▇▇▇'▇ for rating the Notes; (ix) a $240,000
financial advisory fee to UFS Securities, L.L.C.; and (x) a $240,000 structuring
fee to Credit Suisse First Boston Corporation.
8. EFFECTIVE DATE OF AGREEMENT. This Agreement shall be deemed
effective as of the date first above written upon the execution and delivery
hereof by all the parties hereto. Until such time as this Agreement shall have
become effective, it may be terminated by the Company, by notifying the
Representative, or by the Representative, by notifying the Company.
Any notice under this Section 8 may be given by telecopy or
telephone but shall be subsequently confirmed by letter.
9. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in the absolute discretion of the Representative, without liability
on the part of the Underwriters to the Company, by notice to the Company, if
prior to the Closing Date (i) trading in securities generally on the New York
Stock Exchange, American Stock Exchange or the Nasdaq National Market shall have
been suspended or materially limited, (ii) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal or
state authorities, or (iii) there shall have occurred any outbreak or escalation
of hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representative, impracticable or inadvisable to commence or continue the
offering of the Notes on the terms set forth in the Prospectus, as applicable,
or to enforce contracts for the resale of the Notes by the Underwriters. Notice
19
of such termination may be given to the Company by telecopy or telephone and
shall be subsequently confirmed by letter.
10. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set
forth under the heading "Plan of Distribution" in the Prospectus Supplement
constitute the only information furnished by or on behalf of the Underwriters as
such information is referred to in Sections 3(b) and 5 hereof.
11. DEFAULT BY ONE OF THE UNDERWRITERS. If any of the
Underwriters shall fail on the Closing Date to purchase the Notes which it is
obligated to purchase hereunder (the "Defaulted Notes"), the remaining
Underwriters (the "Non-Defaulting Underwriters") shall have the right, but not
the obligation, within one (1) Business Day thereafter, to make arrangements to
purchase all, but not less than all, of the Defaulted Notes upon the terms
herein set forth; if, however, the Non-Defaulting Underwriters shall have not
completed such arrangements within such one (1) Business Day period, then this
Agreement shall terminate without liability on the part of the Non-Defaulting
Underwriters.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Non-Defaulting Underwriters or the
Company shall have the right to postpone the Closing Date for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements.
12. COMPUTATIONAL MATERIALS. (a) It is understood that the
Underwriters may prepare and provide to prospective investors certain
Computational Materials (as defined below) in connection with the Company's
offering of the Notes, subject to the following conditions:
(i) The Underwriters shall comply with all applicable laws
and regulations in connection with the use of Computational Materials
including the No-Action Letter of May 20, 1994 issued by the
Commission to ▇▇▇▇▇▇, Peabody Acceptance Corporation I, ▇▇▇▇▇▇,
Peabody & Co. Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation,
as made applicable to other issuers and underwriters by the
Commission in response to the request of the Public Securities
Association dated May 24, 1994, and the No-Action Letter of February
17, 1995 issued by the Commission to the Public Securities
Association (collectively, the "▇▇▇▇▇▇/PSA Letters").
(ii) As used herein, "Computational Materials" and the
term "ABS Term Sheets" shall have the meanings given such terms in
the ▇▇▇▇▇▇/PSA Letters, but shall include only those Computational
Materials that have been prepared or delivered to prospective
investors by or at the direction of an Underwriter.
(iii) Each Underwriter shall provide the Company with
representative forms of all Computational Materials prior to their
first use, to the extent such forms have not previously been approved
by the Company for use by such Underwriter. Each Underwriter shall
provide to the Company, for filing on Form 8-K as provided in Section
20
11(b), copies of all Computational Materials that are to be filed
with the Commission pursuant to the ▇▇▇▇▇▇/PSA Letters. Each
Underwriter may provide copies of the foregoing in a consolidated or
aggregated form. All Computational Materials described in this
subsection (a)(iii) must be provided to the Company not later than
10:00 A.M., Colorado time, one business day before filing thereof is
required pursuant to the terms of this Agreement.
(iv) If an Underwriter does not provide the Computational
Materials to the Company pursuant to subsection (a)(iii) above, such
Underwriter shall be deemed to have represented, as of the applicable
Closing Date, that it did not provide any prospective investors with
any information in written or electronic form in connection with the
offering of the Notes that is required to be filed with the
Commission in accordance with the ▇▇▇▇▇▇/PSA Letters.
(v) In the event of any delay in the delivery by an
Underwriter to the Company of all Computational Materials required to
be delivered in accordance with subsection (a)(iii) above, the
Company shall have the right to delay the release of the Prospectus
to investors or to such Underwriter, to delay the Closing Date and to
take other appropriate actions in each case as necessary in order to
allow the Company to comply with its agreement set forth in Section
11(b) to file the Computational Materials by the time specified
therein.
(b) The Company shall file the Computational Materials (if any)
provided to it by the Underwriter under Section 11(a)(iii) with the Commission
pursuant to a Current Report on Form 8-K no later than 5:30 P.M., New York time,
on the date required pursuant to the ▇▇▇▇▇▇/PSA Letters.
13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement or contained in notes of officers of the Company submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation or statement as to the results thereof, made by or on
behalf of the Underwriters, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes.
14. MISCELLANEOUS. Except as otherwise provided in Sections
5, 8 and 9 hereof, notice given pursuant to any provision of this Agreement
shall be in writing and shall be delivered (i) if to the Company, at ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, and
(ii) if to the Underwriters, to Credit Suisse First Boston Corporation, Eleven
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
This Agreement has been and is made solely for the benefit of the
Underwriters, the Company, their respective directors, officers, trustees and
controlling persons referred to in Section 5 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from an Underwriter of any of the Notes in his status
as such purchaser.
21
15. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York
without giving effect to the choice of laws or conflict of laws principles
thereof.
The Company hereby submits to the non-exclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New York
in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof or
thereof shall have been executed and delivered on behalf of each party hereto.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the Underwriters.
Very truly yours,
NELNET Student Loan Corporation - 2
By /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
Confirmed as of the date first above mentioned.
CREDIT SUISSE FIRST BOSTON CORPORATION, acting on
behalf of itself and as Representative of the Underwriters
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Director
22
SCHEDULE A
NAME OF PRINCIPAL AMOUNT
UNDERWRITER OF NOTES
----------- ----------------
Credit Suisse First
Boston Corporation................................... $120,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc................................ $120,000,000
▇▇ ▇▇▇▇▇▇ a division of Chase
Securities, Inc...................................... $120,000,000
UBS Warburg LLC......................................... $120,000,000
------------
Total $480,000,000
============
TERMS OF THE NOTES
PRICE PROCEEDS
FINAL LEGAL TO UNDERWRITING TO
INTEREST RATE MATURITY PUBLIC DISCOUNT ISSUER
------------- ----------- ------ ------------ --------
5.76% 7/1/12 99.9691% 0.30% $478,411,680
23
