Exhibit 1.1
NELNET EDUCATION LOAN FUNDING, INC.
$--------------
STUDENT LOAN ASSET-BACKED NOTES
UNDERWRITING AGREEMENT
___________ __, 200_
[Names of Underwriters]
Ladies and Gentlemen:
Nelnet Student Loan Funding, Inc., a Nebraska corporation (the
"Company") proposes to sell to [Names of Underwriters] (each an "Underwriter"
and collectively, the "Underwriters"), pursuant to the terms of this
Underwriting Agreement, $_______________ aggregate principal amount of the
Company's Student Loan Asset-Backed Notes (the "Notes") in the classes and
initial principal amounts set forth on Schedule A hereto. Zions First National
Bank, a national banking association, will act as eligible lender on behalf of
the Company. The Notes will be issued under an Indenture of Trust dated as of
_________ __, 200_, (the "Indenture") between the Company and Zions First
National Bank, a national banking association, as indenture trustee (the
"Trustee"). 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 Master Servicing Agreement dated as of __________ __, 200_, (the
"Servicing Agreement"), between Nelnet, as master servicer, and the Company.
Nelnet has entered into a loan subservicing agreement with Nelnet Loan Services,
Inc. ("NLS") dated as of __________ __, 200_, (the "Subservicing Agreement")
pursuant to which NLS will act as subservicer with respect to all of the
Financed Eligible Loans.
This Agreement, the Loan Purchase Agreement, dated as of __________ __,
200_, between _________________ (the "Seller") (along with the related Loan
Transfer Addendum, the "Purchase Agreement") the Custodian Agreement, dated
__________ __, 200_, among the Company, the Trustee and NLS, as custodian (the
"Custodian 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.
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 each Class of the
Notes 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 office of
___________________ on __________ __, 200_, (the "Closing Date"). The place of
such closing and the Closing Date may be varied by agreement between the
Underwriters 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 Underwriters, or such other form of payment
as to which the parties may agree. Unless otherwise agreed to by the Company and
the Underwriters, 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.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to each of the Underwriters that:
(a) A registration statement on Form S-3 (No __________),
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
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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.
(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 Indenture has been duly and validly authorized by the
Company and, upon its execution and delivery by the Company and assuming
due authorization, execution and delivery by the Trustee, will be a
valid and binding agreement of the Company, 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 conform in all material respects to the description
thereof in the Prospectus. The Indenture has been duly qualified under
the Trust Indenture Act with respect to the Notes.
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(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 Nebraska
with full 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, or would materially and adversely
affect the ability of the 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 of the Company or (ii)
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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 the Company is a party or
by which the Company 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 the Company 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 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 pursuant to
the Purchase Agreement 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 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.
(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.
(p) Since the date of the Prospectus, no material adverse change
or any development involving a prospective material adverse change in,
or affecting particularly the business or properties of, the Company has
occurred.
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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 each of the Underwriters 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
amendment that will effect such compliance. Neither the Underwriters'
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.
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(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.
(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 Underwriters terminating this
Agreement pursuant to Section 8 or Section 9 hereof) or if this
Agreement shall be terminated by the Underwriters 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.
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(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 and NLS 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 Financed Eligible Loans, 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, 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 1933 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, 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.
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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 such Underwriter through the Underwriters
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 at a time reasonably
prior to the date such Notes are sold to such person. 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 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 under Sections 5(a) and 5(c) hereof, except
to the extent that the indemnifying party is materially prejudiced by such
omission, and in no event shall the omission so to notify relieve the Company
from any liability which it may otherwise have. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party). The applicable
Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action, suit or proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person unless (i) the
indemnifying parties have agreed in writing to pay such fees and expenses, (ii)
the indemnifying parties have failed to assume the defense and employ counsel,
or (iii) the named parties to any such action, suit or proceeding (including any
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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 such Underwriter furnished in writing by such
Underwriter 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 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 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 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.
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(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 Underwriter
shall be required to contribute any amount in excess of the amount by which the
total underwriting discounts and commissions received by such Underwriter with
respect to the Notes underwritten by such Underwriter exceed the sum of the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission and the amount of any damages such Underwriter has been required to pay
under the Indemnity Agreement dated as of the date hereof among the
Underwriters, on behalf of themselves and the other Underwriters, and Nelnet
Loan Services, Inc. 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.
11
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 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
the Company, the Servicer, the Seller or NLS not contemplated by the
Registration Statement, which in the opinion of the Underwriters, would
materially adversely affect the market for the Notes, (ii) any
downgrading in the rating of any debt securities of the Company, the
Servicer, the Seller or NLS 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, the Servicer, the Seller or NLS (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 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 Underwriters, 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 Purchase Agreement, the Servicing Agreement, the
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 Seller
to the Company and from the Company to the Trustee.
12
(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
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll 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,
as servicer, NLS, the Company and the Seller, each dated the Closing
Date and satisfactory in form and substance to you and your counsel, to
the effect that:
(i) Each of the Company, Nelnet, NLS and the Seller is a
corporation, 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 Agreement has been duly authorized,
executed and delivered by the Seller, the Purchase Agreement,
the Servicing Agreement and this Agreement have been duly
authorized, executed and delivered by the Company, the Servicing
Agreement and the Subservicing Agreement have been duly
authorized, executed and delivered by Nelnet and the
Subservicing Agreement and the Custodian Agreement have been
duly authorized, executed and delivered by NLS and each such
agreement is the legal, valid and binding obligations of the
Seller, the Company, Nelnet and NLS, as the case may be,
enforceable against the Seller, the Company, Nelnet and NLS, 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.
13
(iii) Neither the execution and delivery by Nelnet of
the Servicing Agreement or the Subservicing Agreement, or the
execution and delivery by the Company of the Purchase Agreement,
the Servicing Agreement, or this Agreement, or the execution by
the Seller of the Purchase Agreement, or the execution and
delivery by NLS of the Subservicing Agreement or the Custodian
Agreement, nor the consummation by Nelnet, the Company, the
Seller or NLS of the transactions contemplated therein nor the
fulfillment of the terms thereof by Nelnet, the Company, the
Seller or NLS will conflict with, result in a breach, violation
or acceleration of, or constitute a default under, any term or
provision of the by-laws or articles of incorporation, as the
case may be, of Nelnet, the Company, the Seller or NLS or of any
indenture or other agreement or instrument to which Nelnet, the
Company, the Seller or NLS is a party or by which Nelnet, the
Company, the Seller or NLS is bound, or result in a violation of
or contravene the terms of any statute, order or regulation
applicable to Nelnet, the Company, the Seller or NLS of any
court, regulatory body, administrative agency or governmental
body having jurisdiction over Nelnet, the Company, the Seller or
NLS.
(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,
the Company, the Seller or NLS before or by any governmental
authority that might materially and adversely affect the
performance by Nelnet, the Company, the Seller or NLS 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 Nelnet contained in the Servicing Agreement, or
the Subservicing Agreement, or the representations and
warranties of the Company in the Purchase Agreement, the
Servicing Agreement or this Agreement or the representations and
warranties of the Seller contained in the Purchase Agreement or
the representations and warranties of NLS contained in the
Subservicing 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 Nelnet of the Servicing Agreement or the
Subservicing Agreement, (b) for the due execution, delivery and
performance by the Company of the Purchase Agreement, the
Servicing Agreement or this Agreement, (c) for the due
execution, delivery and performance by the Seller of the
Purchase Agreement, (d) for the due execution, delivery and
performance by NLS of the Subservicing Agreement or the
Custodian Agreement or (e) for the perfection of the Company's
and the Trustee's interest in the Student Loans sold pursuant to
14
the Purchase Agreement 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 Agreement 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
Agreement enforceable against creditors of, and purchasers from,
the Seller.
(viii) As of the date specified in a schedule to such
opinion, there were no (a) UCC financing statements naming the
Seller as debtor or seller and covering any Student Loans to be
sold under the 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
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 Agreement 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 under the Purchase Agreement, 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.
(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 and each Guarantee Agreement.
15
(iii) The execution and delivery of each of the
Indenture, the Custodian Agreement and each Guarantee Agreement,
and the performance by the Trustee of its obligations under the
Indenture, the Custodian Agreement 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 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
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 or any Guarantee Agreement.
(ix) The execution, delivery and performance by the
Trustee of the Indenture, the Custodian Agreement 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.
(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.
16
(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 the Company, the 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 the Company, the Seller or the Servicer, as the case may
be, contained in the respective Purchase Agreement, the Servicing
Agreement and the Subservicing Agreement, as applicable, are true and
correct in all material respects, that each of the Company, the 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 the Company,
the 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 the Company, the Seller or the Servicer, as applicable, has occurred.
(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, Chief Financial Officer, Senior Vice
President or Vice President, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of NLS
in which such officers shall state that, to the best of their knowledge
after reasonable investigation, (i) the representations and warranties
of NLS contained in the Subservicing Agreement are true and correct in
all material respects, that NLS 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 NLS
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, NLS 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
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.
(n) The Underwriters shall have received on the Closing Date
from ______________ a letter dated the Closing Date, and in form and
substance satisfactory to the Underwriters, 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.
17
(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 Underwriters), 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) 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 ("S&P"), and ▇▇▇▇▇'▇
Investors Services, Inc. ("Moody's"), the Class B Notes shall be rated
"A", "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
recordation thereof on the Seller's and NLS's computer systems.
(t) You shall have received certificates addressed to you dated
the Closing Date from officers of the Company 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 Loan Services, Inc. in form and substance satisfactory to you and
your counsel.
(v) 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,
18
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,
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(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) accountants for
the Company and issuer of the Comfort Letter; and (H) the fees charged by S&P,
Fitch and Moody's for rating the Notes.
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 each of the
Underwriters, or by the Underwriters, 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 Underwriters, 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 is such as to
make it, in the judgment of the Underwriters, 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 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
in the second, third, ninth and tenth paragraphs and the second table 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.
19
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 Underwriter (the
"Non-Defaulting Underwriter") 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 Underwriter 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 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 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,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & 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 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 Nelnet Funding not later than 10:00 A.M.,
Colorado time, one business day before filing thereof is
required pursuant to the terms of this Agreement.
20
(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 Underwriters,
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 the address of the respective Underwriter set forth above
with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Stroock & Stroock & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
This Agreement has been and is made solely for the benefit of the
Underwriters, the Company, their respective directors, officers, managers,
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.
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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.
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Please confirm that the foregoing correctly sets forth the
agreement between the Company and the Underwriters.
Very truly yours,
NELNET EDUCATIONAL LOAN FUNDING, INC.
By: ________________________
Name:
Title:
Confirmed as of the date first above mentioned.
[Name of the Underwriter]
By: ______________________
Name: ______________________
Title: ______________________
[Name of Underwriter]
By: ______________________
Name: ______________________
Title: ______________________
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SCHEDULE A
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Notes [Name of Underwriter] [Name of Underwriter]
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Class __
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Class __
------------------ -------------------------------- ----------------------------
Class __
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