Exhibit 1.1
NELNET STUDENT LOAN TRUST 2008-1
$1,200,435,000
STUDENT LOAN ASSET-BACKED NOTES
UNDERWRITING AGREEMENT
March 5, 2008
Barclays Capital Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
as Representatives
Ladies and Gentlemen:
Nelnet Student Loan Funding, LLC, a Delaware limited liability company
("Nelnet Funding"), proposes to cause Nelnet Student Loan Trust 2008-1, a
Delaware statutory trust (the "Trust"), to sell to Barclays Capital Inc.,
Deutsche Bank Securities Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc. (together, the
"Representatives"), and the other underwriters listed on Schedule A attached
hereto (each an "Underwriter", and collectively the "Underwriters"), pursuant to
the terms of this Underwriting Agreement (the "Agreement"), $1,200,435,000
aggregate principal amount of the Trust's Student Loan Asset-Backed Notes, Class
A-1, Class A-2, Class A-3 and Class B (the "Notes") in the initial principal
amounts set forth on Schedule A hereto. Zions First National Bank, a national
banking association, will act as eligible lender trustee on behalf of the Trust
(the "Eligible Lender Trustee"). The Notes will be issued under an Indenture of
Trust, dated as of March 1, 2008 (the "Indenture"), among the Trust, the
Eligible Lender Trustee and Zions First National Bank, a national banking
association, as indenture trustee (the "Indenture Trustee"). Upon issuance, the
Notes will be secured by, among other things, Financed Eligible Loans (as
defined in the Indenture) pledged to the Indenture Trustee and described in the
Prospectus (as defined below). The Financed Eligible Loans will be master
serviced by National Education Loan Network, Inc. ("NELN"), a Nevada
corporation, pursuant to a Master Servicing Agreement, dated as of March 1, 2008
(the "Servicing Agreement"), among NELN, as master servicer and administrator,
Nelnet Funding and the Trust. The Financed Eligible Loans will be subserviced by
Nelnet, Inc. ("Nelnet"), a Nebraska corporation, pursuant to a Nelnet, Inc.
Subservicing Agreement, dated as of March 1, 2008 (the "Subservicing
Agreement"), between NELN and Nelnet.
This Agreement, the loan sale agreement, dated as of March 1, 2008
between the Trust and Nelnet Funding (along with the related Loan Transfer
Addendum, the "Nelnet Funding Purchase Agreement"), the assignment agreement,
dated as of March 1, 2008 among Nelnet Funding, Zions First National Bank, as
eligible lender trustee for Nelnet Funding (the "Nelnet Funding Eligible Lender
Trustee"), Nelnet Student Asset Funding Extendable CP, LLC ("Nelnet CP") and
Zions First National Bank, as eligible lender trustee for Nelnet CP (the "Nelnet
CP Purchase Agreement"), the loan sale agreement, dated as of March 1, 2008
between Nelnet Funding and EMT Corp. ("EMT") (along with the related Loan
Transfer Addendum, the "EMT Purchase Agreement"), the loan sale agreement, dated
as of March 1, 2008 between Nelnet Funding and LoanSTAR Funding Group, Inc.
("LoanSTAR") (along with the related Loan Transfer Addendum, the "LoanSTAR
Purchase Agreement"), the loan sale agreement, dated as of March 1, 2008 between
Nelnet Funding and Union Bank and Trust Company ("UBTC") (along with the related
Loan Transfer Addendum, the "UBTC Purchase Agreement"), the loan sale agreement,
dated as of March 1, 2008 between Nelnet Education Loan Funding, Inc. ("NELF",
together with Nelnet Funding, UBTC, EMT, LoanSTAR and Nelnet CP, the "Sellers")
and Nelnet Funding (along with the related Loan Transfer Addendum, the "NELF
Purchase Agreement", and, together with the Nelnet Funding Purchase Agreement,
the UBTC Purchase Agreement, the EMT Purchase Agreement, the LoanSTAR Purchase
Agreement and the Nelnet CP Purchase Agreement, the "Purchase Agreements"), the
trust agreement, dated as of February 15, 2008, between M&T Trust Company of
Delaware, as Delaware trustee (the "Delaware Trustee"), and Nelnet Funding, as
initial certificateholder and depositor (the "Trust Agreement"), the
administration agreement, dated as of March 1, 2008, among the Trust, the
Delaware Trustee, the Indenture Trustee and NELN, as administrator (the
"Administration Agreement"), the eligible lender trust agreement, dated as of
May 1, 2002, between the Nelnet Funding Eligible Lender Trustee and Nelnet
Funding (the "Nelnet Funding Eligible Lender Agreement"), the Eligible Lender
Trust Agreement, dated as of March 1, 2008, between the Eligible Lender Trustee
and the Trust (the "Trust Eligible Lender Agreement", and together with the
Nelnet Funding Eligible Lender Agreement, the "Eligible Lender Agreements"), the
custodian agreement, dated March 1, 2008, among the Trust, the Indenture
Trustee, the Eligible Lender Trustee and Nelnet, as custodian (the "Custodian
Agreement"), the indemnity agreement, dated as of March 5, 2008, among Nelnet
and the Representatives and the other Underwriters party hereto (the "Indemnity
Agreement"), the Servicing Agreement, the Subservicing Agreement 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.
Nelnet Funding proposes to cause the Trust, 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 at the rates
and maturities listed on Schedule B hereto.
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Nelnet Funding 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) On the Closing Date,
Nelnet Funding hereby agrees, subject to all the terms and conditions set forth
herein, to cause the Trust to sell to each of the Underwriters and, upon the
basis of the representations, warranties and agreements of Nelnet Funding herein
contained and subject to all the terms and conditions set forth herein, on the
Closing Date each of the Underwriters severally and not jointly agrees to
purchase from the Trust, such principal amount of each Class of the Notes to be
sold on the Closing Date at such respective purchase prices as are set forth
next to the name of each Underwriter 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 offices of ▇▇▇▇▇
▇▇▇▇ LLP in Denver, Colorado, at 11:00 a.m., MST, on March 10, 2008 (the
"Closing Date"). The place of such closing and the Closing Date may be varied by
agreement between the Representatives and Nelnet Funding.
On the Closing Date, the Notes will be delivered to the Underwriters
against payment of the purchase price therefor to the Trust in Federal Funds, by
wire transfer to an account at a bank acceptable to the Representatives, or such
other form of payment as to which the parties may agree. Unless otherwise agreed
to by Nelnet Funding and the Representatives, 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 immediately preceding
the Closing Date.
3. REPRESENTATIONS AND WARRANTIES OF NELNET FUNDING. Nelnet Funding
represents and warrants to each of the Underwriters that:
(a) A registration statement on Form S-3 (No. 333-144431),
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.
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(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 required to be stated therein or
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, at the "time of sale" (within the meaning of
Rule 159 under the Act, the "Time of Sale") for the first sale of the
Notes by the Underwriters, which will occur March 5, 2008, and on the
Closing Date, the Registration Statement, the Disclosure Package (as
defined below) and the Prospectus will conform in all respects to the
requirements of the Act, the Rules and Regulations and the Trust
Indenture Act, and none 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 (in the case of the Disclosure Package and the Prospectus, in
the light of the circumstances under which they were made) not
misleading; provided, however, that the foregoing does not apply to
statements in or omissions from the Registration Statement, the
Prospectus or the Disclosure Package, as applicable, based upon written
information furnished to Nelnet Funding by the Underwriters,
specifically for use therein. As used in this Agreement, the term
"Disclosure Package" means, collectively, the initial free writing
prospectus dated February 15, 2008 relating to the Notes (the "Initial
FWP"), the static pool information within the meaning of Item 1105 of
Regulation AB under the Securities Act (the "Static Pool Data"), the
Initial Term Sheet dated March 3, 2008 (the "Initial Disclosure
Supplement") and the Supplemental Term Sheet dated March 5, 2008 (the
"Final Disclosure Supplement").
(c) The Commission has not issued and, to the best knowledge of
Nelnet Funding, is not threatening to issue any order preventing or
suspending the use of the Registration Statement.
(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 Nelnet Funding 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.
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(e) The Indenture has been duly and validly authorized by Nelnet
Funding and, upon its execution and delivery by the Trust and assuming
due authorization, execution and delivery by the Indenture Trustee and
the Eligible Lender Trustee, will be a valid and binding agreement of
the Trust, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights generally and the Indenture
will conform in all material respects to the description thereof in the
Prospectus and the Disclosure Package. The Indenture has been duly
qualified under the Trust Indenture Act with respect to the Notes.
(f) The Notes have been duly authorized by the Trust and the
Notes to be issued on the Closing Date, when executed by the Trust and
authenticated by the Indenture 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 Trust 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 and the Disclosure
Package.
(g) Nelnet Funding is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Delaware with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and the Disclosure Package 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 Nelnet Funding.
(h) Other than as contemplated by this Agreement or as disclosed
in the Prospectus and the Disclosure Package, there is no broker, finder
or other party that is entitled to receive from Nelnet Funding 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 Nelnet Funding contemplated, against
Nelnet Funding, or to which Nelnet Funding or any of its properties is
subject, that are not disclosed in the Prospectus and the Disclosure
Package 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 Nelnet Funding
or would materially and adversely affect the ability of Nelnet Funding,
or the Trust 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.
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(j) Neither the offer, sale or delivery of the Notes by the Trust
nor the execution, delivery or performance of this Agreement or the
Basic Documents by Nelnet Funding or the Trust, nor the consummation by
Nelnet Funding or the Trust 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
of Nelnet Funding or the Trust or (ii) conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under, in
any material respect, any agreement, indenture, lease or other
instrument to which Nelnet Funding or the Trust is a party or by which
Nelnet Funding or the Trust or any of its respective 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 Nelnet Funding or the Trust or any of its respective
properties, or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of Nelnet Funding or
the Trust 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) Nelnet Funding 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 Nelnet Funding of its obligations
under, this Agreement and the other Basic Documents to which it is a
party have been duly and validly authorized by Nelnet Funding and this
Agreement and the other Basic Documents have been duly executed and
delivered by Nelnet Funding and constitute the valid and legally binding
agreements of Nelnet Funding, enforceable against Nelnet Funding 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 statements set forth in each of the Initial FWP, the
Initial Disclosure Supplement, the Final Disclosure Supplement and the
Prospectus under the caption "Description of the Notes" insofar as they
purport to constitute a summary of the terms of the Notes, are accurate,
complete and fair.
(m) Nelnet Funding's assignment and delivery of Financed Eligible
Loans to the order of the Indenture Trustee on behalf of the Trust
pursuant to the Nelnet Funding Purchase Agreement will vest in the
Indenture Trustee on behalf of the Trust all of Nelnet Funding's right,
title and interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
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(n) The Trust's assignment of the Financed Eligible Loans to the
Indenture Trustee pursuant to the Indenture will vest in the Indenture
Trustee, for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
(o) The Trust 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.
(p) The representations and warranties made by Nelnet Funding in
any Basic Document to which Nelnet Funding is a party and made in any
Officer's Certificate of Nelnet Funding or the Trust will be true and
correct at the time made and on and as of the Closing Date.
(q) Since the date of the Disclosure Package and Prospectus, no
material adverse change or any development involving a prospective
material adverse change in, or affecting particularly the business or
properties of, Nelnet Funding has occurred.
(r) The Trust is not, was not at the Time of Sale and the time of
the initial "bona fide offer" (within the meaning of Rule 164(h) under
the Act) and will not be on the Closing Date, an "ineligible issuer"
(within the meaning of Rule 405 under the Act).
(s) The Trust filed with the Commission pursuant to Rule 433(d)
under the Act (i) the Initial FWP on February 19, 2008, (ii) the Initial
Disclosure Supplement on March 3, 2008 and (iii) the Final Disclosure
Supplement on March 5, 2008.
4. AGREEMENTS OF NELNET FUNDING. Nelnet Funding agrees with each of the
Underwriters as follows:
(a) Nelnet Funding 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
Nelnet Funding deem appropriate in connection with the offering of the
Notes, and Nelnet Funding will timely file such supplement to the
Prospectus with the SEC pursuant to Rule 424(b) under the Act, but
Nelnet Funding 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, or any Free Writing Prospectus (as
defined in Rule 405 under the Act) to the extent required by Rule 433(d)
under the Act, unless it shall first have delivered copies of such
amendments, supplements or Free Writing Prospectus to the Underwriters,
with reasonable opportunity to comment on such proposed amendment or
supplement or if the Underwriters or their counsel shall have reasonably
objected thereto promptly after receipt thereof; Nelnet Funding will
immediately advise the Underwriters or the Underwriters' counsel (i)
when notice is received from the SEC that any post-effective amendment
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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 Nelnet Funding 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. The Issuer will comply with the requirements
applicable to any "issuer free writing prospectus" (as defined in Rule
433(h)(1) under the Act), including timely filings with the Commission,
retention where required and legending.
(b) If, at any time following the issuance of an "issuer free
writing prospectus" or when the Prospectus relating to the Notes is
required to be delivered under the Act, any event occurred or occurs as
a result of which such "issuer free writing prospectus" would conflict
with the information in the Registration Statement or the Prospectus as
then amended or supplemented would include an 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, 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, Nelnet Funding promptly will
notify each of the Representatives of such event and will promptly
prepare and file with the SEC, at its own expense, an "issuer free
writing prospectus" or an amendment or supplement to such Prospectus
that will correct such statement or omission or an amendment that will
effect such compliance. Neither the Representatives' consent to, nor the
Representatives' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 7
hereof.
(c) Nelnet Funding will immediately inform the Representatives
(i) of the receipt by Nelnet Funding of any communication from the SEC
or any state securities authority concerning the offering or sale of the
Notes and (ii) of any threatened lawsuit or proceeding or of the
commencement of any lawsuit or proceeding to which Nelnet Funding is a
party relating to the offering or sale of the Notes.
(d) Nelnet Funding will furnish to the Representatives, without
charge, copies of the Registration Statement (including all documents
and exhibits thereto or incorporated by reference therein), the
Prospectus, the Disclosure Package, and all amendments and supplements
to such documents relating to the Notes, in each case as soon as
reasonably available in such quantities as the Representatives may
reasonably request.
(e) No amendment or supplement will be made to the Registration
Statement, Disclosure Package or Prospectus (i) prior to having
furnished the Underwriters with a copy of the proposed form of the
amendment or supplement and giving the Underwriters a reasonable
opportunity to review the same or (ii) in a manner to which the
Underwriters or their counsel shall reasonably object.
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(f) Nelnet Funding 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 Nelnet Funding 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) Nelnet Funding 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 Disclosure Package
and of the Prospectus furnished by Nelnet Funding.
(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 Nelnet Funding, Nelnet Funding
shall cause to be furnished such documents and such other actions to be
taken.
(i) So long as any of the Notes are outstanding, Nelnet Funding
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 Nelnet Funding or the Trust as the Underwriters
may request from time to time.
(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 Representatives terminating this
Agreement pursuant to Section 9 or Section 10 hereof) or if this
Agreement shall be terminated by the Representatives because of any
failure or refusal on the part of Nelnet Funding to comply with the
terms or fulfill any of the conditions of this Agreement, Nelnet Funding
agrees to reimburse the Underwriters for all out-of-pocket expenses
(including fees and expenses of their counsel) reasonably incurred by
each of them in connection herewith, but without any further obligation
on the part of Nelnet Funding for loss of profits or otherwise (except
for the indemnity and contribution provisions of Section 6 hereof).
(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 and the Disclosure Package.
(1) Except as stated in this Agreement in the Disclosure Package
and in the Prospectus, Nelnet Funding 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.
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(m) For a period from the date of this Agreement until the
retirement of the Notes, Nelnet Funding will deliver to you the annual
statements of compliance and the annual independent certified public
accountants' reports furnished to the Trustee pursuant to the Servicing
Agreement as soon as such statements and reports are furnished to the
Trustee.
(n) On or before the Closing Date, Nelnet Funding shall ▇▇▇▇ its
accounting and other records, if any, relating to the Financed Eligible
Loans and shall cause NELN and each Seller 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 Trust in, the Financed Eligible Loans, and Nelnet
Funding shall not take, or shall permit any other person to take, any
action inconsistent with the ownership of, and the interest of the Trust
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 Nelnet Funding and any entity
affiliated, directly or indirectly, with Nelnet Funding (other than
Nelnet CP) 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 Nelnet Funding.
(p) If, at the time the Registration Statement became effective,
any information shall have been omitted therefrom in reliance upon Rule
430A under the Act, then, immediately following the execution of this
Agreement, Nelnet Funding will prepare, and file or transmit for filing
with the Commission in accordance with such Rule 430A and Rule 424(b)
under the Act, copies of an amended Prospectus containing all
information so omitted.
(q) As soon as practicable, but not later than 16 months after
the date of this Agreement, Nelnet Funding 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
Nelnet Funding'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.
(r) Nelnet Funding will cooperate with the Underwriters in
listing and maintaining the Class A Notes on the Irish Stock Exchange.
5. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITERS. Each of the
Underwriters, severally and not jointly, hereby represents and warrants to and
agrees with Nelnet Funding, severally and not jointly, that:
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(a) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to engage
in investment activity (within the meaning of section 21 of the Financial
Services Markets Act 2000 (the "FSMA")), received by it in connection with the
issue or sale of the Notes in circumstances in which section 21(1) of the FSMA
does not apply to the Trust;
(b) it has complied, and will comply, in all material respects, with all
applicable provisions of the FSMA with respect to anything done by it in
relation to the Notes in, from or otherwise involving the United Kingdom;
(c) other than the Prospectus and the Disclosure Package, it has not,
without the prior written approval of Nelnet Funding, conveyed or delivered any
written material of any kind to any potential investor in the Notes that would
constitute (I) a prospectus satisfying the requirements of Rule 430B under the
Act, (II) a Free Writing Prospectus, or (III) any "ABS informational and
computational material" as defined in Item 1101(a) of Reg AB under the Act;
provided, however that an Underwriter may have conveyed to one or more potential
investors written material containing only (i) information permitted in Rule 134
under the Act and previously or subsequently included in the Disclosure Package,
(ii) a column or other entry showing the status of the subscriptions for each
Class of the Notes, (iii) expected pricing parameters of any class of the Notes,
(iv) weighted average lives of any Class of the Notes, and (v) expected
maturities of any Class of the Notes (each such written communication, an
"Underwriter Free Writing Prospectus"), provided that in the case of clauses (i)
through (v) as such information is posted on a Bloomberg screen or is
distributed via Bloomberg (or other comparable system), and in the case of
clauses (ii) through (v) such Underwriter Free Writing Prospectus, other than
the final pricing terms, would not require the Trust to file such written
material as a Free Writing Prospectus pursuant to Rule 433 under the Act; and
each Underwriter shall provide to Nelnet Funding a copy of each Free Writing
Prospectus conveyed by it of the type referred to in Rule 433(d)(5)(ii) under
the Act no later than the close of business on the date of first use;
(d) it did not convey the Initial FWP to any potential investor prior to
February 19, 2008, convey the Initial Disclosure Supplement to any potential
investor prior to March 3, 2008 or convey the Final Disclosure Supplement to any
potential investor prior to March 5, 2008, and has not entered into a contract
for the sale of the Notes prior to the Time of Sale;
(e) each Underwriter will retain all "free writing prospectuses" that it
used and that were not filed with the SEC for a period of three years following
the Time of Sale; and
(f) it has conveyed the Disclosure Package to each investor to which it
has sold the Notes in paper form, by facsimile or electronically in Adobe
Acrobat format reasonably promptly after receipt by such Underwriter and prior
to the time it entered into each contract for sale of the Notes.
6. INDEMNIFICATION AND CONTRIBUTION.
11
(a) Nelnet Funding 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,
the Disclosure Package, the written communications constituting an
electronic road show within the meaning of Rule 433(h) under the Act
(the "Road Show Material"), or in any amendment or supplement thereto,
or any preliminary prospectus, or in the case of the Registration
Statement or in any amendment or supplement thereto, 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 in the case of the Prospectus, the
Disclosure Package and the Road Show Material or in any amendment or
supplement thereto, 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 in light of the
circumstances under which they were made, 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 (i) the information relating to an Underwriter furnished
in writing to Nelnet Funding by such Underwriter through the
Representatives 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 11 of this Agreement and (ii)
the mathematical calculations performed by the Underwriters (but not the
data or assumptions used to make such calculations by the Underwriters,
which the parties agree constitutes information of Nelnet Funding) and
used to derive the percentages, terms or dates (x) in the columns titled
Transaction Overview - "WAL to Call/Reset" and "Expected Principal
Window To Call" in the Road Show Material and (y) in Appendix I to the
Final Disclosure Supplement and the Prospectus under the heading
"Weighted Average Lives, Expected Maturities and Percentages of Original
Principal Remaining at Each Quarterly Distribution Date for the Notes."
The foregoing indemnity agreement shall be in addition to any liability
which Nelnet Funding 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 Nelnet Funding, 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 under Sections
6(a) and 6(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 Nelnet Funding 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
12
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 Nelnet Funding and its directors and
officers, and any person who controls Nelnet Funding within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the indemnity from Nelnet Funding to the Underwriters set
forth in paragraph (a) hereof, but only with respect to information
furnished in writing by such Underwriter to Nelnet Funding or the Trust
through the Representatives expressly for use in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or
the Initial Disclosure Supplement or the Final Disclosure Supplement, it
being understood that the only such information furnished by any
Underwriter consists of the information described as such in Section 11
of this Agreement. If any action, suit or proceeding shall be brought
against Nelnet Funding, any of its directors or officers, or any such
controlling person based on the Registration Statement, the Prospectus,
the Disclosure Package, or any amendment or supplement thereto, or any
related preliminary prospectus therein 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 Nelnet
Funding by paragraph (b) above (except that if Nelnet Funding shall have
assumed the defense thereof the Underwriter shall have the option to
assume such defense but 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 Nelnet Funding, 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.
13
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless 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 Nelnet Funding 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 Nelnet Funding 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 Nelnet Funding 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 Trust bear to the total underwriting discounts and
commissions received by such Underwriter. The relative fault of Nelnet
Funding 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
Nelnet Funding 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) Nelnet Funding and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 6 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 6, 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
this Agreement or the Indemnity Agreement. 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.
14
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or
contribution under this Section 6 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 6 and the representations and
warranties of Nelnet Funding 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, Nelnet Funding 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, Nelnet Funding 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 6.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Notes hereunder on the Closing Date are
subject to the following conditions precedent:
(a) All actions required to be taken and all filings required to
be made by Nelnet Funding 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 Nelnet Funding 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
Nelnet Funding, NELN, the Sellers or Nelnet not contemplated by the
Registration Statement, which in the opinion of the Representatives,
would materially adversely affect the market for the Notes, (ii) the
withdrawal or any downgrading in the long term counterparty rating of
Nelnet below "BBB" by S&P or "Baa2" by ▇▇▇▇▇'▇, (iii) any downgrading in
the rating of any debt securities of trusts sponsored by Nelnet Funding,
NELN, the Sellers or Nelnet 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 trusts sponsored by Nelnet Funding, NELN, the Sellers or
Nelnet (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating), or (iv) any event or development which makes any statement
made in the Registration Statement, the Disclosure Package or Prospectus
untrue or which, in the opinion of Nelnet Funding and its counsel or the
Underwriters and their counsel, requires the filing of any amendment to
or change in the Registration Statement, the Disclosure Package 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,
Prospectus or Disclosure Package to reflect such event or development
would, in the opinion of the Representatives, materially adversely
affect the market for the Notes.
15
(c) You shall have received an opinion addressed to you of ▇▇▇▇▇
▇▇▇▇ LLP, in its capacity as counsel to the Trust, dated the Closing
Date, in form and substance satisfactory to you and your counsel with
respect to the Nelnet Funding Purchase Agreement, the Servicing
Agreement, the Indenture, the Trust Eligible Lender Agreement, the
Administration Agreement, the Custodian Agreement 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
Trust, in form and substance satisfactory to you and your counsel,
concerning "true sale," "non-consolidation" and "first priority
perfected security interest" and certain other issues with respect to
the transfer of the Financed Eligible Loans from NELF to Nelnet Funding,
and from Nelnet Funding to the Trust and with respect to the pledge of
the Financed Eligible Loans from the Trust to the Trustee.
(d) You shall have received an opinion addressed to you of ▇▇▇▇▇
▇▇▇▇ LLP, in its capacity as counsel for Nelnet Funding and the Trust,
dated the Closing Date, in form and substance satisfactory to you and
your counsel to the effect that the statements in the Initial FWP and
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 Nelnet Funding and the Trust,
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
Nelnet Funding, and the Trust, dated the Closing Date in form and
substance satisfactory to you and your counsel with respect to the
Prospectus, the Registration Statement and the Disclosure Package and
certain matters arising under the Act, 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 NELN, as
master servicer and administrator, Nelnet, Nelnet Funding, UBTC, Nelnet
CP, EMT, LoanSTAR and NELF, each dated the Closing Date and satisfactory
in form and substance to you and your counsel, to the effect that:
16
(i) Each of NELN, Nelnet, EMT, LoanSTAR and NELF is a
corporation, and each of Nelnet Funding, UBTC and Nelnet CP is a
limited liability company, in good standing under the laws of
their respective states of incorporation or organization; 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 Basic Documents to which it is a party.
(ii) The Purchase Agreements have been duly authorized,
executed and delivered by the respective Seller, as applicable,
the Purchase Agreements, the Trust Agreement, the Servicing
Agreement, the Nelnet Funding Eligible Lender Agreement and this
Agreement have been duly authorized, executed and delivered by
Nelnet Funding, the Administration Agreement, the Servicing
Agreement and the Subservicing Agreement have been duly
authorized, executed and delivered by NELN and the Subservicing
Agreement, the Indemnity Agreement and the Custodian Agreement
have been duly authorized, executed and delivered by Nelnet and
each such agreement is the legal, valid and binding obligations
of NELF, UBTC, Nelnet CP, Nelnet Funding, NELN, EMT, LoanSTAR and
Nelnet, as the case may be, enforceable against each of NELF,
UBTC, Nelnet CP, Nelnet Funding, NELN, EMT, LoanSTAR 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 NELN of the
Administration Agreement, the Servicing Agreement or the
Subservicing Agreement, or the execution and delivery by Nelnet
Funding of the Purchase Agreements, the Trust Agreement, the
Servicing Agreement, the Nelnet Funding Eligible Lender Agreement
or this Agreement, the execution by UBTC of the UBTC Purchase
Agreement, the execution by EMT of the EMT Purchase Agreement,
the execution by LoanSTAR of the LoanSTAR Purchase Agreement, the
execution by Nelnet CP of the Nelnet CP Purchase Agreement, or
the execution by NELF of the NELF Purchase Agreement, or the
execution and delivery by Nelnet of the Subservicing Agreement,
the Indemnity Agreement or the Custodian Agreement, nor the
consummation by NELN, Nelnet Funding, NELF, UBTC, Nelnet CP, EMT,
LoanSTAR or Nelnet of the transactions contemplated therein nor
the fulfillment of the terms thereof by NELN, Nelnet Funding,
NELF, UBTC, Nelnet CP, EMT, LoanSTAR or Nelnet will conflict
with, result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the articles
of incorporation, by-laws or limited liability company agreement,
as the case may be, of NELN, Nelnet Funding, NELF, UBTC, Nelnet
CP, EMT, LoanSTAR or Nelnet or of any indenture or other
agreement or instrument to which NELN, Nelnet Funding, NELF,
UBTC, Nelnet CP, EMT, LoanSTAR or Nelnet is a party or by which
NELN, Nelnet Funding, NELF, UBTC, Nelnet CP, EMT, LoanSTAR or
Nelnet is bound, or result in a violation of or contravene the
terms of any statute, order or regulation applicable to NELN,
Nelnet Funding, NELF, UBTC, Nelnet CP, EMT, LoanSTAR or Nelnet of
any court, regulatory body, administrative agency or governmental
body having jurisdiction over NELN, Nelnet Funding, NELF, UBTC,
Nelnet CP, EMT, LoanSTAR or Nelnet.
17
(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 NELN,
Nelnet Funding, NELF, UBTC, Nelnet CP, EMT, LoanSTAR or Nelnet
before or by any governmental authority that might materially and
adversely affect the performance by NELN, Nelnet Funding, NELF,
UBTC, Nelnet CP, EMT, LoanSTAR or Nelnet of its obligations
under, or the validity or enforceability of, any Basic Documents
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 NELN contained in the Administration Agreement, the
Servicing Agreement or the Subservicing Agreement, or the
representations and warranties of Nelnet Funding in the Nelnet
Funding Purchase Agreement, the Trust Agreement, the Servicing
Agreement, the Nelnet Funding Eligible Lender Trust Agreement or
this Agreement, or the representations and warranties of NELF
contained in the NELF Purchase Agreement, the representations and
warranties of EMT contained in the EMT Purchase Agreement, the
representations and warranties of LoanSTAR contained in the
LoanSTAR Purchase Agreement or the representations and warranties
of UBTC contained in the UBTC Purchase Agreement or the
representations and warranties of Nelnet CP contained in the
Nelnet CP Purchase Agreement, or the representations and
warranties of Nelnet contained in the Subservicing Agreement, the
Indemnity Agreement or the Custodian Agreement are other than as
stated therein.
(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 NELN of the Administration Agreement, the
Servicing Agreement or the Subservicing Agreement, (b) for the
due execution, delivery and performance by Nelnet Funding of the
Purchase Agreements, the Trust Agreement, the Servicing
Agreement, the Nelnet Funding Eligible Lender Trust Agreement or
this Agreement, (c) for the due execution, delivery and
performance by NELF of the NELF Purchase Agreement, (d) for the
due execution, delivery and performance by UBTC of the UBTC
Purchase Agreement, (e) for the due execution, delivery and
performance by EMT of the EMT Purchase Agreement, (f) for the due
execution, delivery and performance by LoanSTAR of the LoanSTAR
Purchase Agreement, (g) for the due execution, delivery and
performance by Nelnet CP of the Nelnet CP Purchase Agreement, (h
for the due execution, delivery and performance by Nelnet of the
Subservicing Agreement, the Indemnity Agreement or the Custodian
Agreement or (i) for the perfection of the Trust's and the
Indenture Trustee's interest in the Student Loans sold pursuant
to the Purchase Agreements or the exercise by the Trust (or its
permitted assigns) and the Indenture 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.
18
(vii) The Purchase Agreements together with the related
▇▇▇▇ of sale and blanket endorsement effects a valid sale to the
Eligible Lender Trustee of the Student Loans to be sold under the
Purchase Agreements enforceable against creditors of, and
purchasers from, Nelnet Funding, UBTC, Nelnet CP, EMT, LoanSTAR
and NELF, as applicable.
(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 Purchase Agreements 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 Purchase
Agreements 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
Delaware or 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 Eligible Lender
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 Eligible Lender Trustee on behalf of the Trust will
be entitled to the benefit of the applicable Guarantor and/or
U.S. Department of Education payments under the Act related to
the Student Loans sold under the Purchase Agreements, subject to
the terms and conditions of the Guarantee Agreements and the Act.
(i) You shall have received opinions addressed to you of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., in their capacity as counsel to the
Delaware Trustee, and as Delaware counsel to the Trust and Nelnet
Funding, dated the Closing Date and in form and substance satisfactory
to you and your counsel.
(j) You shall have received an opinion addressed to you of
counsel to the Indenture Trustee, the Eligible Lender Trustee and the
Nelnet Funding Eligible Lender Trustee (collectively, the "Trustee"),
dated the Closing Date and in form and substance satisfactory to you and
your counsel, to the effect that:
19
(i) The Trustee is a national banking association duly
organized and validly existing under the laws of the United
States of America.
(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 Agreement, the Eligible Lender Agreements, the Nelnet
CP Purchase Agreement, the Administration Agreement and each
Guarantee Agreement.
(iii) The execution and delivery of each of the Indenture,
the Custodian Agreement, the Eligible Lender Agreements, the
Nelnet CP Purchase Agreement, the Administration Agreement and
each Guarantee Agreement, and the performance by the Trustee of
its obligations under the Indenture, the Custodian Agreement, the
Administration Agreement, the Eligible Lender 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 Agreement, the Eligible
Lender Agreements, the Nelnet CP Purchase Agreement, the
Administration Agreement 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, the Eligible Lender
Agreements, the Nelnet CP Purchase Agreement, the Administration
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
Agreement, the Eligible Lender Agreements, the Nelnet CP Purchase
Agreement, the Administration Agreement 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
Agreement, the Eligible Lender Agreements, the Nelnet CP Purchase
Agreement, the Administration Agreement or any Guarantee
Agreement.
20
(ix) The execution, delivery and performance by the
Trustee of the Indenture, the Custodian Agreement, the Eligible
Lender Agreements, the Nelnet CP Purchase Agreement, the
Administration Agreement or any Guarantee Agreement will not
subject any of the property or assets of the Trust or any portion
thereof, to any lien created by or arising under the Indenture
that is unrelated to the transactions contemplated in such
agreements.
(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.
(k) You shall have received certificates addressed to you dated
the Closing Date of any one 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 Nelnet Funding, NELF, UBTC, EMT,
LoanSTAR, Nelnet CP, Nelnet and NELN in which such officers shall state
that, to the best of their knowledge after reasonable investigation, (i)
the representations and warranties of Nelnet Funding, NELF, UBTC, EMT,
LoanSTAR, Nelnet CP, Nelnet or NELN, as the case may be, contained in
the respective Basic Documents to which it is a party, as applicable,
are true and correct in all material respects, that each of Nelnet
Funding, NELF, UBTC, EMT, LoanSTAR, Nelnet CP, Nelnet and NELN 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 the
Disclosure Package and that the information therein regarding Nelnet
Funding, NELF, UBTC, EMT, LoanSTAR, Nelnet CP, Nelnet or NELN, as
applicable, is fair and accurate in all material respects, and (iii)
since the Time of Sale, except as may be disclosed in the Prospectus and
the Disclosure Package, no material adverse change or any development
involving a prospective material adverse change, in or affecting
particularly the business or properties of Nelnet Funding, NELF, UBTC,
EMT, LoanSTAR, Nelnet CP, Nelnet or NELN, as applicable, 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 State of
Delaware reflecting the grant of the security interest by the Trust in
the Financed Eligible Loans and the proceeds thereof to the Indenture
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.
21
(n) The Underwriters shall have received on the Closing Date from
KPMG LLP letters dated the Closing Date (or, with respect to (ii) below,
a copy of the letter furnished by KPMG LLP to Nelnet Funding and the
Representatives as addressees), and in form and substance satisfactory
to the Representatives, to the effect that they have carried out certain
specified procedures, not constituting an audit, with respect to (i)
certain information regarding the Financed Eligible Loans, (ii) the
Static Pool Data and (iii) certain calculations with respect to expected
maturities and percentages or original principal of the Notes remaining
at each quarterly distribution date, and setting forth the results of
such specified procedures (collectively, the "Comfort Letter).
(o) All the representations and warranties of Nelnet Funding and
the Trust 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 Nelnet Funding to the
effect set forth in this Section 7(p) and in Section 7(q) hereof.
(p) Neither Nelnet Funding nor the Trust shall 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 Representatives), in lieu of or in
addition to the legal opinions referred to in this Section 7, the right
to rely on opinions provided by such counsel and all other counsel under
the terms of the Basic Documents.
(r) Each class of Class A Notes shall be rated "AAA", "AAA" and
"Aaa", respectively, by Fitch, Inc. ("Fitch"), Standard & Poor's Ratings
Service, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), and
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), the Class B Notes shall be
rated "AA", "A" and "A2", or higher, by Fitch, S&P and Moody's,
respectively, and that neither Fitch, S&P nor Moody's have placed the
Notes under surveillance or review with possible negative implications.
(s) 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
Disclosure Package and the recordation thereof on each Sellers',
Nelnet's and NELN's computer systems.
(t) You shall have received certificates addressed to you dated
the Closing Date from officers of Nelnet Funding and legal opinions
addressing such additional matters as you may reasonably request in form
and substance satisfactory to you and your counsel.
(u) You shall have received a signed Indemnity Agreement from
Nelnet in form and substance satisfactory to you and your counsel.
22
(v) You shall have received certificates dated the Closing Date
of College Assist (formerly known as College Access Network and as
Colorado Student Loan Program), State Higher Education Services
Corporation and Texas Guaranteed Student Loan Corporation to the effect
that the information in the Disclosure Package or Prospectus, as
applicable, with respect to such entity is true and correct and is fair
and accurate in all material respects.
(w) On the Closing Date, the aggregate principal amount of the
Notes, as specified in Schedule A to this Agreement, shall have been
sold by the Trust to the Underwriters and the Underwriters shall have
received from Nelnet payment of all discounts and commissions in
connection with the underwriting of the Notes as provided for in Section
2 hereof.
(x) You shall have received opinions of counsel to any provider
of an investment agreement, guaranteed investment contract, or other
similar agreement, in form and substance satisfactory to you and your
counsel, relating to corporate and securities matters with respect to
such arrangement and its provider.
(y) 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.
Nelnet Funding 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.
8. EXPENSES. Nelnet Funding 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, the Disclosure Package 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, the Disclosure Package and all amendments or supplements to, and
preliminary versions of, 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(j) 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 Trust's counsel, (B) the Underwriters' counsel, (C) the
Trustee and its counsel, (D) the Delaware Trustee and its counsel, (E) the
Depository Trust Company in connection with the book-entry registration of the
Notes, (F) the SEC and (G) KPMG LLP, accountants for the Trust and issuer of the
Comfort Letter; (viii) obtaining any investment agreement, guaranteed investment
contract or other similar arrangement; and (ix) the fees charged by S&P, Fitch
and ▇▇▇▇▇'▇ for rating the Notes.
23
9. 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 Nelnet Funding, by notifying each of the
Representatives, or by the Representatives, by notifying Nelnet Funding.
Any notice under this Section 9 may be given by telecopy or telephone
but shall be subsequently confirmed by letter.
10. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, without liability
on the part of the Underwriters to Nelnet Funding, by notice to Nelnet Funding,
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 is such as to
make it, in the judgment of the Representatives, impracticable or inadvisable to
commence or continue the offering of the Notes on the terms set forth in the
Disclosure Package and Prospectus, as applicable, or to enforce contracts for
the resale of the Notes by the Underwriters. Notice of such termination may be
given to Nelnet Funding by telecopy or telephone and shall be subsequently
confirmed by letter.
11. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth
in the second, seventh and ninth paragraphs and each table under the heading
"Plan of Distribution" in the Final Disclosure Supplement and the Prospectus
constitute the only information furnished by or on behalf of the Underwriters as
such information is referred to in Sections 3(b) and 6 hereof.
12. ABSENCE OF FIDUCIARY RELATIONSHIP. Nelnet Funding acknowledges and
agrees that:
(a) the Underwriters have been retained solely to act as underwriters in
connection with the sale of the Notes and agree with Nelnet Funding that no
fiduciary, advisory or agency relationship between Nelnet Funding and the
Underwriters has been created in respect of any of the transactions contemplated
by this Agreement, irrespective of whether the Underwriters have advised or are
advising Nelnet Funding on other matters and further agree that the Underwriters
owe Nelnet Funding only those duties and obligations set forth herein;
(b) the price of the Notes set forth in this Agreement was established
by Nelnet Funding following discussions and arms-length negotiations with the
Underwriters and Nelnet Funding is capable of evaluating and understanding and
understands and accepts the terms, risks and conditions of the transactions
contemplated by this Agreement;
(c) Nelnet Funding has been advised that the Underwriters and their
affiliates are engaged in a broad range of transactions which may involve
interests that differ from those of Nelnet Funding and that the Underwriters
have no obligation to disclose such interests and transactions to Nelnet Funding
by virtue of any fiduciary, advisory or agency relationship; and
24
(d) Nelnet Funding waives, to the fullest extent permitted by law, any
claims it may have against the Underwriters for breach of fiduciary duty or
alleged breach of fiduciary duty and agrees that the Underwriters shall have no
liability (whether direct or indirect) to Nelnet Funding in respect of such a
fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf
of or in right of Nelnet Funding, including stockholders, employees or creditors
of Nelnet Funding.
13. 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 which are
obligated to purchase that Class of Notes (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
remaining Defaulted Notes of such Class upon the terms herein set forth; if,
however, any such 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 any such Non-Defaulting Underwriter.
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 Nelnet Funding
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.
14. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The respective
indemnities, agreements, representations, warranties and other statements of
Nelnet Funding or its officers and of the Underwriters set forth in or made
pursuant to this Agreement or contained in notes of officers of Nelnet Funding
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, Nelnet Funding or any of their respective
representatives, officers or directors or any controlling person, and will
survive (i) delivery of and payment for the Notes or (ii) termination of this
Agreement.
15. MISCELLANEOUS. Except as otherwise provided in Sections 6, 9 and 10
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to Nelnet Funding, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and (ii)
if to the Underwriters, to the Representatives at the address of the respective
Representatives set forth above with a copy to Stroock & Stroock & ▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
This Agreement has been and is made solely for the benefit of the
Underwriters, Nelnet Funding, the Trust, their respective directors, officers,
managers, trustees and controlling persons referred to in Section 6 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.
25
16. 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 (including
Section 5-1401 of the General Obligations Law, but otherwise without giving
effect to the choice of laws or conflict of laws principles thereof).
Nelnet Funding 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.
17. ENTIRE AGREEMENT. This Agreement, together with any contemporaneous
written agreements and any prior written agreements (to the extent not
superseded by this Agreement) that relate to the offering of the Notes,
represents the entire agreement between Nelnet Funding and the Underwriters with
respect to the preparation of the Prospectus, the conduct of the offering and
the purchase and sale of the Notes.
26
Please confirm that the foregoing correctly sets forth the agreement
between the Nelnet Funding and the Underwriters.
Very truly yours,
NELNET STUDENT LOAN FUNDING, LLC
By: Nelnet Student Loan Management
Corporation, as Manager and Special Member
BY: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
Confirmed as of the date first above mentioned.
BARCLAYS CAPITAL INC.,
acting on behalf of itself and as Representative of the Underwriters
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.,
acting on behalf of itself and as Representative of the Underwriters
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
--------------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
acting on behalf of itself and as Representative of the Underwriters
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SCHEDULE A
-------------------------------- ------------ ------------- ------------- ------------ --------------
Notes Class A-1 Class A-2 Class A-3 Class B TOTAL
-------------------------------- ------------ ------------- ------------- ------------ --------------
Barclays Capital Inc. $152,750,000 $70,700,000 $135,920,000 $11,111,000 $370,481,000
-------------------------------- ------------ ------------- ------------- ------------ --------------
Deutsche Bank Securities Inc. 152,750,000 70,700,000 135,920,000 11,111,000 370,481,000
-------------------------------- ------------ ------------- ------------- ------------ --------------
▇.▇. ▇▇▇▇▇▇ Securities Inc. 152,750,000 70,700,000 135,920,000 11,111,000 370,481,000
-------------------------------- ------------ ------------- ------------- ------------ --------------
RBC Capital Markets Corporation 18,375,000 8,450,000 16,331,000 1,340,000 44,496,000
-------------------------------- ------------ ------------- ------------- ------------ --------------
SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. 18,375,000 8,450,000 16,331,000 1,340,000 44,496,000
------------ ------------- ------------- ------------ --------------
------------------------------- ------------ ------------- ------------- ------------ --------------
Total $495,000,000 $229,000,000 $440,422,000 $36,013,000 $1,200,435,000
------------------------------- ------------ ------------- ------------- ------------ --------------
SCHEDULE B
TERMS OF THE NOTES
-------------- ------------------------- -------------------- ---------------- ------------- ------------------
Class Interest Rate Final Maturity Date Price to Public Underwriting Proceeds to Trust
Discount
-------------- ------------------------- -------------------- ----------------- ------------- -----------------
Class A-1 3-month LIBOR plus 0.55% May 26, 2014 100% 0.190% $495,000,000
-------------- ------------------------- -------------------- ----------------- ------------- -----------------
Class A-2 3-month LIBOR plus 0.85% November 25, 2015 100% 0.260% $229,000,000
-------------- ------------------------- -------------------- ----------------- ------------- -----------------
Class A-3 3-month LIBOR plus 1.15% May 25, 2020 100% 0.300% $440,442,000
-------------- ------------------------- -------------------- ----------------- ------------- -----------------
Class B 3-month LIBOR plus 1.25% November 25, 2033 100% 0.400% $36,013,000
---------------
-------------- ------------------------- -------------------- ----------------- ------------- -----------------
TOTAL $1,200,435,000
-------------- ------------------------- -------------------- ----------------- ------------- -----------------