Exhibit 10.10
EXECUTION COPY
$838,775,000
COLLEGIATE FUNDING SERVICES EDUCATION LOAN TRUST 2003-A
UNDERWRITING AGREEMENT
February 25, 2003
Xxxxxxx Xxxxx Xxxxxx Inc.,
UBS PaineWebber Inc.
UBS Warburg LLC
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. Collegiate Funding of Delaware, L.L.C. (the "Sponsor")
has previously filed a registration statement with the Securities and Exchange
Commission relating to the issuance and sale from time to time of up to $2
billion of student loan asset-backed notes. Collegiate Funding Services, L.L.C,
a Virginia limited liability company ("Collegiate Funding") owns the Sponsor
directly. The Sponsor proposes to cause Collegiate Funding Services Education
Loan Trust 2003-A (the "Trust") to issue and sell to Xxxxxxx Xxxxx Xxxxxx Inc.,
UBS PaineWebber Inc. and UBS Warburg LLC (each, an "Underwriter" and
collectively, the "Underwriters") $125,000,000 principal amount of its Class A-1
Student Loan Asset-Backed Notes, Series 2003-A (the "Class A-1 Notes"),
$319,025,000 principal amount of its Class A-2 Student Loan Asset-Backed Notes,
Series 2003-A (the "Class A-2 Notes"), $116,950,000 principal amount of its
Class A-3 Student Loan Asset-Backed Notes, Series 2003-A (the "Class A-3
Notes"), $116,950,000 principal amount of its ClassA-4 Student Loan Asset-Backed
Notes, Series 2003-A (the "Class A-4 Notes"), $59,250,000 principal amount of
its Class A-5 Student Loan Asset-Backed Notes, Series 2003-A (the "Class A-5
Notes"), $59,250,000 principal amount of its Class A-6 Student Loan Asset-Backed
Notes, Series 2003-A (the "Class A-6 Notes") and $42,350,000 principal amount of
its Class B Student Loan Asset-Backed Notes, Series 2003-A (the "Class B Notes"
and, together with the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class
A-4 Notes, Class A-5 Notes and Class A-6 Notes, the "Notes"). The Trust will be
formed by the Sponsor pursuant to a trust agreement, to be dated as of February
1, 2003 (as amended and supplemented from time to time, the "Trust Agreement"),
between the Sponsor and Wilmington Trust Company, as Delaware Trustee (the
"Delaware Trustee"). The assets of the Trust will include, among other things, a
pool of student loans (the "Initial Financed Student Loans") and all amounts
collected thereunder on and after the Closing Date, as defined below. Such
Initial Financed Student Loans will be acquired by the Trust from the Sponsor
pursuant to a loan purchase agreement, to be dated as of February 1, 2003 (as
amended and supplemented from time to time, the "Sponsor Student Loan Purchase
Agreement"), among the Trust, Collegiate Funding and the Sponsor. After the
Closing Date, the Trust may acquire additional student loans pursuant to the
Sponsor Student Loan Purchase Agreement (such additional Student Loans, together
with the Initial Financed Student Loans, being referred to herein, collectively,
as the "Financed Student Loans"). The Sponsor will acquire the Initial Financed
Student Loans to be sold pursuant to the Sponsor Student Loan Purchase Agreement
from an existing trust of which the Sponsor is the sponsor (the "Seller")
pursuant to a loan purchase agreement, to be dated as of February 1,
2003 (as amended and supplemented from time to time, the "Seller Student Loan
Purchase Agreement"), between the Sponsor and the Seller. The Financed Student
Loans are to be serviced by Collegiate Funding Master Servicing, L.L.C. (the
"Master Servicer") pursuant to a servicing agreement, to be dated as of February
1, 2003 (as amended and supplemented from time to time, the "Master Servicing
Agreement"), among the Trust, the Master Servicer and the Indenture Trustee, as
hereinafter defined. In turn, the Master Servicer will enter into a servicing
agreement, to be dated as of February 1, 2003 (as amended and supplemented from
time to time, the "Sub-Servicing Agreement"), with SunTech, Inc. (the
"Sub-Servicer") pursuant to which the Sub-Servicer will service the Financed
Student Loans on behalf of the Master Servicer. The Financed Student Loans have
been and will be originated pursuant to a student loan origination and servicing
agreement (the "Origination Agreement"), between the Sponsor and SunTech, Inc.
(the "Originating Agent"). The Notes will be issued pursuant to an indenture, to
be dated as of February 1, 2003 (as amended and supplemented from time to time,
the "Indenture"), between the Trust and U.S. Bank National Association, as
indenture trustee (the "Indenture Trustee") and as eligible lender trustee (the
"Eligible Lender Trustee"). In addition, pursuant to an administration
agreement, to be dated as of February 1, 2003 (as amended and supplemented from
time to time, the "Administration Agreement"), among the Trust, Collegiate
Funding Portfolio Administration, L.L.C. (the "Administrator") and the Indenture
Trustee, the Administrator will agree to perform certain administrative tasks on
behalf of the Trust. The Trust will have the benefit of an interest LIBOR Swap
issued pursuant to an ISDA Master Agreement and related confirmation, each to be
dated February 28, 2003 (the "LIBOR Swap Agreement"), between the Indenture
Trustee and Citibank, N.A. (the "LIBOR Swap Counterparty"). The Trust will also
enter into an interest rate cap agreement issued pursuant to an ISDA Master
Agreement and related confirmation (the "Rate Cap Agreement"), between the
Indenture Trustee and The Bank of New York (the "Rate Cap Counterparty"). The
Trust and the Indenture Trustee will also enter into an investment agreement,
dated as of the Closing Date (the "Investment Agreement"), with FGIC Capital
Market Services, Inc. (the "Investment Agreement Provider").
In connection with the determination of the interest rates on the Class
A-3 Notes, the Class A-4 Notes, the Class A-5 Notes, the Class A-6 Notes and the
Class B Notes (collectively, the "Auction Rate Notes"), the Trust and the
Indenture Trustee will enter into an auction agent agreement, to be dated as of
February 1, 2003 (as amended and supplemented from time to time, the "Auction
Agent Agreement"), with The Bank of New York, as auction agent (the "Auction
Agent"). The Auction Agent will, in turn, enter into broker-dealer agreements,
each to be dated as of February 1, 2003 (each, as amended and supplemented from
time to time, a "Broker-Dealer Agreement"), with Xxxxxxx Xxxxx Barney Inc. (with
respect to the Class A-3 Notes, the Class A-4 Notes and the Class B Notes) and
UBS PaineWebber Inc. (with respect to the Class A-5 Notes and the Class A-6
Notes). The Indenture Trustee will enter into market agent agreements, each to
be dated as of February 1, 2003 (each, as amended and supplemented from time to
time, a "Market Agent Agreement"), with Xxxxxxx Xxxxx Xxxxxx Inc. (with respect
to the Class A-3 2 Notes, the Class A-4 Notes and the Class B Notes) and UBS
PaineWebber Inc. (with respect to the Class A-5 Notes and the Class A-6 Notes).
The Trust, the Indenture Trustee and the Eligible Lender Trustee will
enter into a joint sharing agreement, dated February 1, 2003 (as amended and
supplemented from time to time, the "Joint Sharing Agreement"), with such other
entities for which the Eligible Lender Trustee is an eligible lender trustee and
uses the same eligible lender number for the holding of student loans as it uses
for the Financed Student Loans.
Capitalized terms used and not otherwise defined herein shall have the
meanings given them in the Prospectus (as hereinafter defined) or, if not
defined therein, as defined in the
Indenture. As used herein, the term "Basic Documents" refers to this Agreement,
the Trust Agreement, the Indenture, the Master Servicing Agreement, the
Sub-Servicing Agreement, the Origination Agreement, the Administration
Agreement, the Sponsor Student Loan Purchase Agreement, the Seller Student Loan
Purchase Agreement, the Guarantee Agreements, the LIBOR Swap Agreement, the Rate
Cap Agreement, the Investment Agreement, the Auction Agent Agreement, the
Broker-Dealer Agreements, the Market Agent Agreements, the Joint Sharing
Agreement, the eligible lender trust agreements, to be entered into between the
Sponsor and the Trust, respectively, and U.S. Bank National Association, as
eligible lender trustee, and the letter of representations, given by the Trust
and the Indenture Trustee to The Depository Trust Company ("DTC") in connection
with the registration of the Notes.
2. Representations and Warranties of the Sponsor and Collegiate Funding
The Sponsor and Collegiate Funding each represent and warrant to and agree with
the Underwriters that:
(a) A registration statement on Form S-3 (No. 333-102258),
including a form of prospectus, relating to the Notes has been filed with
the Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Underwriters and
excluding exhibits to such registration statement but including all
documents incorporated by reference in the prospectus contained therein,
to the Underwriters, have been declared effective by the Commission in
such form; no other document with respect to such registration statement
or document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than prospectuses filed
pursuant to Rule 424(b) ("Rule 424(b)") of the rules and regulations of
the Commission under the Securities Act of 1933, as amended (the "Act"),
each in the form heretofore delivered to the Underwriters); and no stop
order suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has bee initiated or threatened
by the Commission. The various parts of such registration statement
including all exhibits thereto and the documents incorporated by reference
in the prospectus contained in the registration statement at the time such
registration statement became effective (but excluding the Form T-1 filed
in connection therewith), each as amended at the time such part of such
registration statement became effective, is hereinafter referred to as the
"Registration Statement," and the prospectus included in such Registration
Statement, as supplemented to reflect the terms of the Notes as first
filed with the Commission after the date of this Agreement pursuant to and
in accordance with Rule 424(b), is hereinafter referred to as the
"Prospectus," a "preliminary prospectus" means any form of prospectus,
including any prospectus supplement, relating to the Notes used prior to
the date of this Agreement that is subject to completion; the "Base
Prospectus" means the base prospectus dated February 13, 2003, included in
the Prospectus; the "Prospectus Supplement" means the prospectus
supplement dated the date hereof included in the Prospectus.
(b) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder and do not and will not as of the applicable effective date as
to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The preceding
sentence does not apply to statements in or omissions from such documents
based upon written information furnished to the Sponsor by the
Underwriters specifically for use therein, it being understood that the
only such information consists of the Underwriters' Information (as
defined in Section 7(b) hereof).
(c) The Notes are "asset backed securities" within the meaning of,
and satisfy the requirements for use of, Form S-3 under the Act.
(d) The documents incorporated by reference in the Registration
Statement and Prospectus, when they become effective or hereafter become
effective, or at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Act, the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(e) Each of Collegiate Funding, the Sponsor, the Seller, the Master
Servicer and the Administrator is duly organized, validly existing and in
good standing under the laws of its respective jurisdiction of
organization, is duly qualified to transact business in each jurisdiction
in which it is required to be so qualified and has all necessary licenses,
permits and consents to conduct its business as currently conducted and as
described in the Prospectus and to perform its obligations under the Basic
Documents except where the failure to be so qualified or to have such
licenses, permits or consents would not have a material adverse affect on
Collegiate Funding, the Sponsor, the Seller, the Master Servicer or the
Administrator , as applicable, or on its ability to perform its
obligations under the Basic Documents.
(f) This Agreement and each of the other Basic Documents to which
Collegiate Funding, the Sponsor, the Seller, the Master Servicer or the
Administrator is a party has been duly authorized and, when executed and
delivered by Collegiate Funding, the Sponsor, the Seller, the Master
Servicer or the Administrator, as applicable, will constitute a valid and
binding agreement of Collegiate Funding, the Sponsor, the Seller, the
Master Servicer and the Administrator, respectively, enforceable against
the Sponsor, the Seller, the Master Servicer and the Administrator,
respectively, in accordance with its terms, subject as to the enforcement
of remedies (x) to applicable bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting creditors' rights generally,
(y) to general principles of equity (regardless of and whether the
enforcement of such remedies is considered in a proceeding in equity or at
law), and (z) with respect to rights of indemnity under this Agreement, to
limitations of public policy under applicable securities laws.
(g) None of Collegiate Funding, the Sponsor, the Seller, the Master
Servicer or the Administrator is in breach or violation of (i) its
organizational documents or (ii) any indenture, mortgage, deed or trust,
lease, credit or security agreement or other agreement or instrument to
which it is a party or by which it or its properties may be bound, or in
violation of any applicable law, statute, regulation or ordinance or any
governmental body having jurisdiction over it, except where such breach or
violation would not have a material adverse affect on Collegiate Funding,
the Sponsor, the Master
Servicer or the Administrator, as applicable, or in its ability to perform
its obligations under the Basic Documents.
(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 Sponsor, or any affiliate thereof or the Underwriters,
any brokerage or finder's fee or other fee or commission as a result of
any of the transactions contemplated by this Agreement.
(i) Neither the Sponsor nor any of its affiliates has entered into,
nor will it enter into, any contractual arrangement with respect to the
distribution of the Notes, except for this Agreement.
(j) The Trust is not an "investment company" and is not required to
be registered as an "investment company," as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(k) As of the Closing Date (as defined below), the representations
and warranties of Collegiate Funding, the Sponsor, the Seller, the Master
Servicer and the Administrator, in each of their respective capacities
under each of the Basic Documents to which they are a party, will be true
and correct in all material respects as of the date of such representation
or warranty was given and each such representation and warranty is so
incorporated herein by this reference.
(1) The Trust's assignment of the Collateral 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 other outstanding Lien.
(m) The Notes have been duly authorized on behalf of the Trust. The
Notes, when duly and validly executed, authenticated and delivered in
accordance with the Indenture, and delivered and paid for pursuant hereto,
will constitute legally valid and binding obligations of the Trust,
entitled to the benefits of the Indenture and enforceable in accordance
with their terms, subject as to enforceability to the effects of
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and similar laws now or hereafter in effect relating to
creditors' rights generally and subject to general principles of equity
(whether in a proceeding at law or in equity).
(n) Neither the execution, delivery or performance of any of the
Basic Documents by Collegiate Funding, the Sponsor, the Seller, the Master
Servicer or the Administrator, nor the issuance, sale and delivery of the
Notes, nor the fulfillment of the terms of the Notes, will conflict with,
or result in a breach, violation or acceleration of, or constitute a
default under, any term or provision of the formation documents of
Collegiate Funding, the Sponsor, the Seller, the Master Servicer or the
Administrator, any material indenture or other material agreement or
instrument to which Collegiate Funding, the Sponsor, the Seller, the
Master Servicer or the Administrator is a party or by which any of them or
their properties is bound or result in a violation of or contravene the
terms of any statute, order or regulation applicable to Collegiate
Funding, the Sponsor, the Seller, the Master Servicer or the Administrator
of any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over Collegiate Funding, the Sponsor, the
Seller, the Master Servicer or the Administrator, or
will result in the creation of any lien upon any material property or
assets of Collegiate Funding, the Sponsor, the Seller, the Master Servicer
or the Administrator (other than pursuant to the Basic Documents).
(o) Other than as disclosed in the Prospectus, there are no legal or
governmental proceedings pending to which Collegiate Funding, the Sponsor,
the Seller, the Master Servicer or the Administrator is a party or of
which any of its properties is the subject, which, if determined adversely
to Collegiate Funding, the Sponsor, the Seller, the Master Servicer or the
Administrator, would individually or in the aggregate have a material
adverse effect on the financial position, shareholders' equity or results
of operations of any of them; and, to the best of Collegiate Funding's and
the Sponsor's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or others.
(p) No consent, license, approval, authorization or order of or
declaration or filing with any governmental authority is required for the
issuance of the Notes or sale of the Notes or the consummation of the
other transactions contemplated by this Agreement or the other Basic
Documents, except for state securities or Blue Sky laws and except such as
have been or will have been prior to the Closing Date duly made or
obtained.
(q) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, as amended prior to the
date hereof, there has not been any material adverse change, or any
development which could reasonably be expected to result in a material
adverse change, in or affecting the financial position, shareholders'
equity or results of operations of Collegiate Funding, the Sponsor, the
Seller, the Master Servicer or the Administrator, or the Sponsor's, the
Seller's, the Servicer's or the Administrator's ability to perform its
obligations under this Agreement or any of the other Basic Documents to
which it is a party.
(r) Any taxes, fees and other governmental charges owed by
Collegiate Funding, the Sponsor, the Seller, the Master Servicer, the
Administrator or the Trust due on or prior to the Closing Date (including,
without limitation, sales taxes) in connection with the execution,
delivery and issuance of this Agreement, the other Basic Documents and the
Notes have been or will have been paid at or prior to the Closing Date,
except for taxes, fees and other governmental charges in respect of which
the validity thereof will be contested in good faith by appropriate
proceedings.
(s) Under generally accepted accounting principles, (i) the Seller
will report its transfer of the Financed Student Loans transferred by it
to the Sponsor pursuant to the Seller Student Loan Purchase Agreement as a
sale of the Financed Student Loans for financial accounting purposes and
(ii) the Sponsor will report its transfer of the Financed. Student Loans
to the Trust pursuant to the Sponsor Student Loan Purchase Agreement as a
sale of the Financed Student Loans for financial accounting purposes (it
being understood, however, that the sales described in clauses (i) and
(ii) may not be recognized for accounting purposes due to the application
of consolidated financial reporting).
(t) Immediately prior to the transfer thereof by the Seller to the
Sponsor, the Seller will be the sole owner of all right, title and
interest in, and will have good and marketable title to, the Financed
Student Loans to be transferred to the Sponsor. Pursuant to the Seller
Student Loan Purchase Agreement, the Seller will transfer to the Sponsor
ownership of the Initial Financed Student Loans. Immediately prior to the
transfer thereof
to the Trust, the Sponsor will be the sole owner of all right, title and
interest in, and will have good and marketable title to, the Financed
Student Loans. The assignment of the Financed Student Loans, all documents
and instruments relating thereto and all proceeds thereof to the Trust,
pursuant to the Sponsor Student Loan Purchase Agreement, vests in the
Indenture Trustee and the Eligible Lender Trustee, as appropriate, on
behalf of the Trust all interests which are purported to be conveyed
thereby, free and clear of any liens, security interests or encumbrances,
other than those contemplated by the Basic Documents.
(u) Immediately upon the transfer of Financed Student Loans by the
Seller to the Sponsor pursuant to the Seller Student Loan Purchase
Agreement, the Sponsor's interest in such Financed Student Loans and the
proceeds thereof shall be perfected by the filing of UCC-1 financing
statements naming the Seller and its eligible lender trustee, as debtors,
the Sponsor and its eligible lender trustee, as secured parties, and the
Indenture Trustee, as assignee (the "Seller Financing Statements") in the
offices specified in Schedule I and there shall be no unreleased UCC
financing statements filed against the Seller or its eligible lender
trustee in such Financed Student Loans other than the Seller Financing
Statements. If a court concludes that the transfer of such Financed
Student Loans from the Seller to the Sponsor is a sale, the interest of
the Sponsor in the Financed Student Loans and the proceeds thereof will be
perfected upon the filing of the Seller Financing Statements in the
offices specified in Schedule I. If a court concludes that such transfer
is not a sale, the Seller Student Loan Purchase Agreement and the
transactions contemplated thereby shall constitute a grant by the Seller
to the Sponsor of a valid security interest in the Financed Student Loans
and the proceeds thereof, which security interest will be perfected upon
the filing of the Seller Financing Statements in the office specified in
Schedule I. No filing or other action, other than the filing of the Seller
Financing Statements in the offices specified in Schedule I and any
related continuation statements, is necessary to perfect and maintain the
interest or the security interest of the Sponsor in the Financed Student
Loans and the proceeds thereof against third parties.
(v) Immediately upon the transfer of the Financed Student Loans by
the Sponsor to the Trust pursuant to the Sponsor Student Loan Purchase
Agreement, the Trust's interest in the Financed Student Loans and the
proceeds thereof shall be perfected by the filing of UCC-1 Financing
Statements naming the Sponsor and its eligible lender trustee, as debtors,
the Trust and the Eligible Lender Trustee, as secured parties, and the
Indenture Trustee, as assignee (the "Sponsor Financing Statements") in the
offices specified in Schedule I and there shall be no unreleased UCC
financing statements filed against the Sponsor or its eligible lender
trustee in the Financed Student Loans other than the Sponsor Financing
Statements. If a court concludes that the transfer of the Financed Student
Loans from the Sponsor to the Trust is a sale, the interest of the Trust
in the Financed Student Loans and the proceeds thereof will be perfected
upon the filing of the Sponsor Financing Statements in the offices
specified in Schedule I. If a court concludes that such transfer is not a
sale, the Sponsor Student Loan Purchase Agreement and the transactions
contemplated thereby constitute a grant by the Sponsor to the Trust of a
valid security interest in the Financed Student Loans and the proceeds
thereof, which security interest will be perfected upon the filing of the
Sponsor Financing Statements in the offices specified in Schedule I. No
filing or other action, other than the filing of the Sponsor Financing
Statements in the offices specified in Schedule I and any related
continuation statements, is necessary to perfect and maintain the interest
or the security interest of the Trust in the Financed Student Loans and
the proceeds thereof against third parties.
(w) The Indenture and the transactions contemplated thereby
constitute a grant by the Trust and the Eligible Lender Trustee to the
Indenture Trustee of a valid security interest in the Collateral and the
proceeds thereof, which security interest will be perfected upon the
filing of UCC-1 Financing Statements naming the Trust and the Eligible
Lender Trustee, as debtors, and the Indenture Trustee, as secured party
(the "Trust Financing Statements"), in the offices specified in Schedule I
and there shall be no unreleased UCC financing statements filed against
the Trust or the Eligible Lender Trustee in the Collateral other than the
Trust Financing Statements. No filing or other action, other than the
filing of the Trust Financing Statements and any related continuation
statements, is necessary to perfect and maintain the interest or the
security interest of the Indenture Trustee in the Collateral and the
proceeds thereof against third parties.
(x) The Trust Agreement need not be qualified under the Trust
Indenture Act of 1939, as amended.
(y) The Indenture has been qualified under the Trust Indenture Act
of 1939, as amended.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Sponsor agrees to cause the Trust to
sell to the Underwriters, and the Underwriters agree, severally and not jointly,
to purchase from the Trust, the principal amount of each class of Notes set
forth opposite the name of such Underwriter on Schedule II hereto at a purchase
price equal to the product of the "Price %" as specified on Schedule III hereto
for such class of Notes and the principal amount of each class of Notes set
forth opposite the name of such Underwriter on Schedule II hereto. The Notes
shall mature on the dates, and shall bear interest at the respective rates,
described in the Prospectus Supplement. For the periods from the Closing Date
through the ends of the respective Initial Auction Periods, (a) the Class A-3
Notes, the Class A-4 Notes and the Class B Notes shall bear interest at rates
not to exceed 3.00% per annum, to be agreed to by the Sponsor and Xxxxxxx Xxxxx
Xxxxxx Inc., and (b) the Class A-5 Notes and the Class A-6 Notes shall bear
interest at rates not to exceed 3.00% per annum, to be agreed to by the Sponsor
and UBS PaineWebber Inc.
The Sponsor will deliver the Notes to the Underwriters, against payment of
the purchase price to or upon the order of the Sponsor by wire transfer in
federal (same day) funds, at the office of Stroock & Stroock & Xxxxx LLP, 000
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York time on February
28, 2003, or at such other time not later than seven full business days
thereafter as the Underwriters and the Sponsor agree in writing, such time being
herein referred to as the "Closing Date." The Notes to be so delivered will be
initially represented by one or more Notes registered in the name of Cede & Co.,
the nominee of DTC. The interests of beneficial owners of the Notes will be
represented by book entries on the records of DTC and participating members
thereof. Definitive Notes will be available only under the limited circumstances
specified in the Basic Documents.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Notes for sale to the public (which may include selected
dealers) on the terms set forth in the Prospectus.
5. Covenants of the Sponsor. The Sponsor covenants and agrees with the
Underwriters that:
(a) The Sponsor will file the Prospectus in a form approved by the
Underwriters with the Commission pursuant to and in accordance with
subparagraph (2) (or, if applicable and if consented to by the
Underwriters, subparagraph (5)) of Rule 424(b) no later than the second
business day following the execution and delivery of this Agreement. The
Sponsor will advise the Underwriters promptly of any such filing pursuant
to Rule 424(b).
(b) The Sponsor will advise the Underwriters promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus in connection with the offering of the Notes and will not
effect such amendment or supplementation without the consent of the
Underwriters, which consent shall not be unreasonably withheld or delayed;
and the Sponsor will advise the Underwriters promptly of any amendment or
supplementation of the Registration Statement or the Prospectus in
connection with the offering of the Notes and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered by an Underwriter or dealer, either (i) 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 any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
(ii) for any other reason it shall be necessary to amend or supplement the
Prospectus to comply with the Act, the Sponsor promptly will notify the
Underwriters of such event and promptly will prepare, at its own expense,
an amendment or supplement which will correct such statement or omission.
Neither the Underwriters' consent to, nor the Underwriters' distribution
of any amendment or supplement to the Prospectus shall constitute a waiver
of any of the conditions set forth in Section 6 hereof.
(d) The Sponsor will, so long as delivery of a prospectus by an
underwriter or dealer is required by the Act, furnish to the Underwriters
copies of any preliminary prospectus, the Prospectus, the Registration
Statement and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as the Underwriters
reasonably request.
(e) The Sponsor will take all actions which are necessary to arrange
for the qualification of the Notes for offering and sale under the laws of
such jurisdictions as the Underwriters designate and will continue such
qualifications in effect so long as required under such laws for the
distribution of the Notes; provided, however, that in no event shall the
Sponsor be obligated to qualify as a foreign corporation or to execute a
general or unlimited consent or take any action that would subject it to
service of process in any such jurisdiction.
(f) The Sponsor shall, at all times upon request of the Underwriters
or their advisors, or both, from the date hereof through the Closing Date,
(i) make available to the Underwriters or its advisors, or both, prior to
acceptance of its purchase, such information (in addition to that
contained in the Registration Statement and the Prospectus)
concerning the offering, the Sponsor and any other relevant matters as
they possess or can acquire without unreasonable effort or expense,
including any and all documentation requested in connection with its due
diligence efforts regarding information in the Registration Statement and
the Prospectus and in order to evidence the accuracy or completeness of
any of the conditions contained in this Agreement and (ii) provide the
Underwriters or its advisors, or both, prior to acceptance of its
subscription, the reasonable opportunity to ask questions of Collegiate
Funding, the Sponsor, the Seller, the Master Servicer and the
Administrator with respect to such matters.
(g) Until the retirement of the Notes, the Sponsor will deliver to
the Underwriters the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the
Indenture Trustee or the Eligible Lender Trustee pursuant to the Basic
Documents, as soon as such statements and reports are furnished to the
Indenture Trustee or the Eligible Lender Trustee.
(h) So long as any of the Notes are outstanding, the Sponsor will
furnish to the Underwriters as soon as practicable after the end of the
fiscal year, all documents required to be distributed to Noteholders or
filed with the Commission on behalf of the Sponsor pursuant to the
Exchange Act, or any order of the Commission thereunder.
(i) On or before the Closing Date (or, in the case of Financed
Student Loans to be acquired after by the Trust from the Sponsor pursuant
to the Sponsor Student Loan Purchase Agreement after the Closing Date, on
or before the date of such acquisition), the Sponsor shall cause the
computer records of the Sponsor, the Seller, the Master Servicer, the
Sub-Servicer, the Originating Agent and the Administrator relating to the
Financed Student Loans to show the ownership by the Eligible Lender
Trustee on behalf of the Trust of the Financed Student Loans, and from and
after the Closing Date (or such later date of acquisition) none of the
Sponsor, the Seller, the Master Servicer, the Sub-Servicer, the
Originating Agent or the Administrator shall take any action inconsistent
with the ownership by the Eligible Lender Trustee on behalf of the Trust
of such Financed Student Loans, other than as permitted by the Master
Servicing Agreement.
(j) To the extent, if any, that any of the ratings provided with
respect to the Notes by the rating agency or agencies that initially rate
any of the Notes are conditioned upon the furnishing of documents or the
taking of any other actions by the Sponsor, the Seller, the Master
Servicer, the Sub-Servicer, the Originating Agent or the Administrator on
or prior to the Closing Date, the Sponsor shall or shall cause the
Sponsor, the Seller, the Master Servicer, the Sub-Servicer, the
Originating Agent or the Administrator, as applicable, to furnish such
documents and take any such other actions. A copy of any such documents
shall be provided to the Underwriters at the time it is delivered to the
rating agencies.
(k) The Sponsor will pay all expenses incident to the performance of
its obligations under this Agreement, including, with limitation, (i) the
printing and filing of the documents (including the Registration Statement
and the Prospectus), (ii) the preparation, issuance and delivery of the
Notes to the Underwriters, (iii) the fees and disbursements of the
Sponsor's, the Seller's, the Master Servicer's and the Administrator's
counsel (including without limitation, local counsel) and accountants,
(iv) the qualification of the Notes under state securities laws, including
filing fees and the fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of any blue
sky or legal investment survey, if any is
requested, (v) the printing and delivery to the Underwriters of copies of
the Registration Statement and the Prospectus and each amendment thereto,
(vi) the reasonable expenses of the Underwriters (other than its counsel),
(vii) the fees and reasonable expenses of counsel to the Underwriters,
(viii) any fees charged by rating agencies for the rating of the Notes,
(ix) the fees and expenses of the Trust and its counsel, (x) the fees and
expenses of the Delaware Trustee, the Indenture Trustee and the Eligible
Lender Trustee, and each of theft counsel, and (xi) any set-up fee charged
by the LIBOR Swap Counterparty or the Rate Cap Counterparty.
(1) The Sponsor will cause the Trust to make generally available to
holders of Notes, as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Trust
(which need not be audited) complying with Section 11(a) of the Act
(including, at the option of the Sponsor, Rule 158).
6. Conditions of the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Notes will be subject to the
accuracy, as of the date hereof and as of the Closing Date, of the
representations and warranties of Collegiate Funding and the Sponsor herein, to
the accuracy of the written statements of officers of Collegiate Funding, the
Sponsor, the Seller, the Master Servicer, the Administrator, the Sub-Servicer,
the Originating Agent, the Delaware Trustee, the Indenture Trustee and the
Eligible Lender Trustee made pursuant to the provisions of this Section, to the
performance by Collegiate Funding and the Sponsor of their obligations hereunder
and to the following additional conditions precedent:
(a) The Underwriters shall have received a letter, of Ernst & Young,
LLP, dated on or prior to the date hereof, confirming that such
accountants are independent public accountants within the meaning of the
Act, and substantially in the form of the drafts to which the Underwriters
have previously agreed and otherwise in form and substance satisfactory to
the Underwriters and counsel for the Underwriters (i) regarding certain
numerical information contained in the Prospectus and (ii) relating to
certain agreed-upon procedures.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Act and Section 5(a) hereof. On or prior to the
Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Sponsor,
shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development involving
a prospective change, in or affecting the Financed Student Loans or
particularly the business or properties of the Trust, Collegiate Funding,
the Sponsor, the Seller, the Master Servicer, the Sub-Servicer, the
Originating Agent, the Administrator or the LIBOR Swap Counterparty,
which, in the sole discretion of the Underwriters, materially impairs the
investment quality of the Notes; (ii)any downgrading in the rating of any
securities of Collegiate Funding, the Sponsor, the Seller, the Master
Servicer, the Sub-Servicer or the Originating Agent, by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any such debt
securities (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii)any suspension or limitation of trading in
securities generally on the New York Stock Exchange, American Stock
Exchange, or NASDAQ National Market, or any setting of minimum or maximum
prices for trading on such exchange; (iv)any banking moratorium declared
by Federal or New York authorities; (v)any outbreak or escalation of
hostilities in which the United States is involved, any declaration of war
or national emergency by Congress, any material disruption in the
financial markets or any other substantial national or international
calamity or emergency if, in the sole judgment of the Underwriters, the
effect of any such outbreak, escalation, declaration, material disruption,
calamity or emergency makes it impractical or inadvisable to proceed with
the public offering or the delivery of the Notes as contemplated by the
Registration Statement, as amended as of the date hereof, or (vi) a
material disruption has occurred in securities settlement or clearance
services in the United States.
(d) On the Closing Date, each of the Basic Documents and the Notes
shall have been duly authorized, executed and delivered by the parties
thereto, shall be in full force and effect and no default shall exist
thereunder, and the Indenture Trustee and the Underwriters shall each have
received a fully executed copy thereof or, with respect to the Notes, a
conformed copy thereof. The Basic Documents and the Notes shall be
substantially in the forms heretofore provided to the Underwriters.
(e) The Underwriters shall have received an opinion of Xxxxxx
Xxxxxx, dated the Closing Date and satisfactory in form and substance to
the Underwriters, to the effect that:
(i) Each of Collegiate Funding, the Master Servicer and the
Administrator has been duly formed and is validly existing as a
limited liability company in good standing under the laws of its
jurisdiction of organization, with full power and authority to own
its properties and conduct its business, and is duly qualified to
transact business and is in good standing in each jurisdiction in
which its failure to qualify would have a material adverse effect
upon transactions contemplated by the Basic Documents and its
business or the ownership of its property.
(ii) Each of the Basic Documents to which Collegiate Funding,
the Master Servicer or the Administrator is a party is the legal,
valid and binding obligation of Collegiate Funding, the Master
Servicer and the Administrator, as applicable, enforceable against
Collegiate Funding, the Master Servicer and the Administrator in
accordance with its terms.
(iii) Neither the execution, delivery and performance by
Collegiate Funding, the Master Servicer or the Administrator,
respectively, of the Basic Documents to which it is a party, nor the
consummation by Collegiate Funding, the Master Servicer or the
Administrator, as applicable, of the transactions contemplated
thereby, will conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of Collegiate Funding, the Master
Servicer or the Administrator, as applicable, pursuant to the terms
of the formation documents of Collegiate Funding, the Master
Servicer or the Administrator, as applicable, or any statute, rule,
regulation or order of any governmental agency or body, or any court
having jurisdiction over Collegiate Funding, the Master Servicer or
the Administrator, as
applicable, or its properties, or any agreement or instrument known
to such counsel after due investigation to which Collegiate Funding,
the Master Servicer or the Administrator, as applicable, is a party
or by which Collegiate Funding, the Master Servicer or the
Administrator, as applicable, or any of its properties is bound.
(iv) No authorization, license, approval, consent or order of,
or filing with, any court or governmental agency or authority is
necessary in connection with the execution, delivery and performance
by Collegiate Funding, the Master Servicer or the Administrator,
respectively, of the Basic Documents to which it is a party, except
for those which have been obtained and except for those that may be
required under state securities or Blue Sky laws.
(v) There are no legal or governmental proceedings known to
such counsel to be pending to which Collegiate Funding, the Master
Servicer or the Administrator is a party or of which any property of
Collegiate Funding, the Master Servicer or the Administrator is the
subject, nor are any such proceedings known to such counsel to be
threatened or contemplated by governmental authorities or threatened
by others (i) asserting the invalidity of all or any part of the
Basic Documents to which Collegiate Funding, the Master Servicer or
the Administrator is a party, or (ii) that could materially
adversely affect the ability of Collegiate Funding, the Master
Servicer or the Administrator to perform its obligations under Basic
Documents to which it is a party.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America
(excluding federal securities and tax laws) and the laws of the State of
Virginia.
(f) The Underwriters shall have received an opinion of Stroock &
Stroock & Xxxxx LLP, special counsel to the Sponsor and the Seller, dated
the Closing Date and satisfactory in form and substance to the
Underwriters, to the effect that:
(i) The Sponsor has been duly formed and is validly existing
as a limited liability company in good standing under the laws of
its jurisdiction of organization, with full power and authority to
own its properties, conduct its business and consummate the
transactions contemplated by the Basic Documents to which it is a
party.
(ii) Each of the Basic Documents to which the Sponsor is a
party is the legal, valid and binding obligation of the Sponsor
enforceable against the Sponsor in accordance with its terms.
(iii) Each of the Basic Documents to which the Seller is a
party is the legal, valid and binding obligation of the Seller
enforceable against the Seller in accordance with its terms.
(iv) When the Notes have been duly executed, authenticated and
delivered in accordance with the Indenture and paid for pursuant to
this
Agreement, the Notes will be validly issued and outstanding,
entitled to the benefits of the Indenture and enforceable in
accordance with their terms.
(v) The Registration Statement is effective under the Act and,
to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement or any part thereof
or any amendment thereto has been issued under the Act and no
proceeding for that purpose has been instituted or threatened by the
Commission.
(vi) The Sponsor is not, and will not as a result of the offer
and sale of the Notes as contemplated in the Prospectus and this
Agreement become, required to be registered as an "investment
company" as defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act").
(vii) The Trust is not, and will not as a result of the offer
and sale of the Notes as contemplated in the Prospectus and this
Agreement become, required to be registered under the Investment
Company Act.
(viii) The Indenture has been duly qualified under the Trust
Indenture Act.
(ix) The statements in the Prospectus Supplement under the
headings "Summary of Terms - Federal income tax consequences,"
"Certain Federal Income Tax Considerations," "Summary of Terms-
ERISA considerations," and "ERISA Considerations," and in the Base
Prospectus under the headings "Federal Income Tax Consequences,"
"ERISA Considerations" and "Description of the Federal Family
Education Loan Program," to the extent that they constitute
statements of matters of law or legal conclusions with respect
thereto, have been reviewed by such counsel and accurately describe
the matters discussed therein.
(x) The Notes will be properly characterized as debt for
federal income tax purposes under federal income tax law and the
Trust will not be characterized as an association (or publicly
traded partnership) taxable as a corporation under federal income
tax law.
(xi) The Registration Statement, as of its effective date, and
the Prospectus as of the date of this Agreement, and any amendment
or supplement thereto, as of its date, complied as to form in all
material respects with the requirements of the Act (except with
respect to the financial statements, the exhibits, annexes and other
financial, statistical, numerical or portfolio data, economic
conditions or financial condition of the portfolio information
included in or incorporated by reference into the Registration
Statement relating to the Notes, the Prospectus or any amendment or
supplement thereto).
(xii) No facts have come to such counsel's attention which
cause them to believe that the Registration Statement, as of its
effective date, and the Prospectus, as of the date of this
Agreement, or any amendment or supplement thereto, as of its date
when it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus on its date contained or on the
Closing Date contains, any untrue statement of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided that such counsel need not express any view
with respect to (1) the financial, statistical or computational
material included in or incorporated by reference into the
Registration Statement, the Prospectus or any amendment or
supplement thereto, or (2) statements in the Prospectus Supplement
under the captions "The Student Loan Operations of Collegiate
Funding Services Education Loan Trust 2003-A Description of
Subservicer," "Information Relating to the Guarantee
Agencies--American Student Assistance" or "--Great Lakes Higher
Education Guaranty Corporation" or "Derivative Product
Agreements--Counterparty to the Derivative Product Agreements."
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America
and the laws of the State of New York and the General Corporation Law of
the State of Delaware. In rendering such opinion, such counsel may rely on
the opinion of Xxxxxxxx, Xxxxxx & Finger for certain matters relating to
the laws of the State of Delaware.
(g) The Underwriters shall have received the opinion or opinions of
in-house counsel to the Sponsor, the Master Servicer and the Administrator
and/or such other counsel acceptable to the Underwriters and counsel for
the Underwriters, dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, to the
effect that:
(i) The Sponsor is duly qualified to transact business and is
in good standing in each jurisdiction in which its failure to
qualify would have a material adverse effect upon transactions
contemplated by the Basic Documents and its business or ownership of
its property.
(ii) Neither the execution, delivery and performance by the
Sponsor of the Basic Documents to which it is a party, nor the
consummation by the Sponsor of the transactions contemplated
thereby, will conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of the Sponsor, pursuant to the terms
of the limited liability company agreement of, or any statute, rule,
regulation or order of any governmental agency or body, or any court
known to such counsel to be applicable to the Sponsor or its
properties, or any agreement or instrument known to such counsel to
which the Sponsor is a party or by which any of its properties are
bound.
(iii) No authorization, license, approval, consent or order
of, or filing with, any court or governmental agency or authority,
which has not been obtained or accomplished by the Sponsor, is
necessary to be obtained or accomplished by the Sponsor in
connection with the execution, delivery and performance of this
Agreement and each of other the Basic Documents to which it is a
party, except for those that may be required under state securities
or Blue Sky laws.
(iv) There are no legal or governmental proceedings known to
such counsel to be pending to which the Sponsor, the Master Servicer
or the Administrator is a party or of which any property of the
Sponsor, the Master Servicer or the Administrator is the subject,
nor are any such proceedings known to such counsel to be threatened
or contemplated by governmental authorities or threatened by others
(i) asserting the invalidity of all or any part of the Basic
Documents or (ii) that could materially adversely affect the ability
of the Sponsor, the Master Servicer or the Administrator to perform
its obligations under the Basic Agreements to which it is a party.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America
(excluding federal securities and tax laws).
(h) The Underwriters shall have received opinions of Stroock &
Stroock & Xxxxx LLP and Xxxxxxxx, Xxxxxx & Finger, each dated the Closing
Date, satisfactory in form and substance to the Underwriters and counsel
for the Underwriters to the effect that the Indenture Trustee has a valid
and perfected, first priority security interest in the Collateral under
the Indenture.
(i) The Underwriters shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, special counsel to the Seller, dated the Closing Date,
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, to the effect that:
(i) The Seller has been duly formed and is validly existing as
a statutory trust under the Delaware Statutory Trust Act, 12 Del. C.
Section 3801, et seq. (the "Trust Act"), and has the power and
authority under the Trust Agreement and the Trust Act to execute,
deliver and perform its obligations under the Basic Documents to
which it is a party.
(ii) The Trust Agreement is a legal, valid and binding
obligation of the Seller, enforceable against the Seller in
accordance with its terms.
(iii) Neither the execution, delivery and performance by the
Seller of the Basic Documents to which it is a party, nor the
consummation by the Seller of any of the transactions contemplated
thereby, requires the consent or approval of, the withholding of
objection on the part of, the giving of notice to, the filing,
registration or qualification with, or the taking of any other
action in respect of, any governmental authority or agency of the
State of Delaware, other than the filing of the Certificate of Trust
and UCC financing statements with the Secretary of State.
(iv) Neither the execution, delivery and performance by the
Seller of the Basic Documents to which it is a party, nor the
consummation by the Seller of the transactions contemplated thereby,
is in violation of its trust agreement or of any law, rule or
regulation of the State of Delaware applicable to the Seller.
(v) The security interest granted by the Seller to the Sponsor
in the Financed Student Loans is perfected under Delaware Law.
(j) The Underwriters shall have received opinions of Stroock Stroock
& Xxxxx LLP, in its capacity as counsel to the Sponsor, dated the Closing
Date and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, with respect to the creation of a "true
sale" with respect to the transfer of the Financed Student Loans from the
Seller to the Sponsor and nonconsolidation of (a) the Seller and the
Sponsor and (b) Collegiate Funding and the Sponsor. Such opinions shall be
limited to the laws of the State of New York and United States federal
law.
(k) The Underwriters shall have received an opinion of Stroock
Stroock & Xxxxx LLP, in its capacity as counsel to the Sponsor, dated the
Closing Date and satisfactory in form and substance to the Underwriters
and counsel for the Underwriters, with respect to the creation of a "true
sale" or perfected security interest with respect to the transfer of the
Financed Student Loans from the Sponsor to the Trust and nonconsolidation
of the Sponsor and the Trust. Such opinion shall be limited to the laws of
the States of New York and United States federal law.
(1) The Underwriters shall have received an opinion of counsel to
the Indenture Trustee and the Eligible Lender Trustee, dated the Closing
Date and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, to the effect that:
(i) Each of the Indenture Trustee and the Eligible Lender
Trustee has been duly organized as a national banking association
and is validly existing and in good standing under the laws of the
United States.
(ii) Each of the Indenture Trustee and the Eligible Lender
Trustee has the requisite power and authority to execute, deliver
and perform its obligations under the Indenture and each other Basic
Document to which it is a party and has taken all necessary action
to authorize the execution, delivery and performance by it of the
Indenture and each such Basic Document.
(iii) The Eligible Lender Trustee has the full corporate trust
power to accept the office of eligible lender trustee under the
Sponsor Student Loan Purchase Agreement and the Indenture.
(iv) Each of the Indenture and each other Basic Document to
which it is a party has been duly executed and delivered by the
Indenture Trustee and the Eligible Lender Trustee, as applicable,
and constitutes a legal, valid and binding obligation of the
Indenture Trustee and the Eligible Lender Trustee, enforceable
against the Indenture Trustee and the Eligible Lender Trustee in
accordance with its respective terms.
(v) The Notes have been duly authenticated and delivered by
the Indenture Trustee in accordance with the terms of the Indenture.
(vi) The execution and delivery by the Indenture Trustee and
the Eligible Lender Trustee of the Indenture and each other Basic
Document to
which it is a party do not require any consent, approval or
authorization of, or any registration or filing with, any applicable
governmental authority.
(vii) None of (x) the consummation by the Indenture Trustee or
the Eligible Lender Trustee of the transactions contemplated in the
Basic Documents, (y) the consummation by the Trust of the
transactions contemplated in the Basic Documents, or (z) the
fulfillment of the terms thereof by the Indenture Trustee, the
Eligible Lender Trustee or the Trust, as the case may be, will
conflict with, result in a breach or violation of, or constitute a
default under any law or the Articles of Association, Bylaws or
other organizational documents of the Indenture Trustee or the
Eligible Lender Trustee or the terms of any indenture or other
agreement or instrument known to such counsel after due
investigation and to which the Indenture Trustee or the Eligible
Lender Trustee or any of its subsidiaries is a party or by which it
or any of them is bound or any judgment, order or decree known to
such counsel to be applicable to the Indenture Trustee or the
Eligible Lender Trustee or any of its subsidiaries, of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Indenture Trustee or the
Eligible Lender Trustee or any of its subsidiaries.
(viii) The Eligible Lender Trustee is an "eligible lender" for
purposes of the FFELP Program in its capacity as eligible lender
trustee with respect to the Financed Student Loans.
Such opinion may contain such assumptions, qualifications and limitations
as are customary in opinions of this type and are reasonably acceptable to
counsel to the Underwriters. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction other than the
federal law of the United States of America and the laws of the State of New
York.
(m) The Underwriters shall have received an opinion of counsel to
the Delaware Trustee, dated the Closing Date and satisfactory in form and
substance to the Underwriters and its counsel, to the effect that:
(i) The Delaware Trustee is duly incorporated and is validly
existing and in good standing as a banking corporation under the
laws of the State of Delaware and has the power and authority to
execute, deliver and perform its obligations under the Trust
Agreement.
(ii) The Trust Agreement has been duly authorized, executed
and delivered by the Delaware Trustee.
(iii) Neither the execution, delivery and performance by the
Delaware Trustee of the Trust Agreement, nor the consummation of any
of the transactions by the Delaware Trustee contemplated thereby,
requires the consent or approval of, the withholding of objection on
the part of, the giving of notice to, the filing, registration or
qualification with, or the taking of any other action in respect of,
any governmental authority or agency under the laws of the State of
Delaware or the federal laws of the United States of America
governing the trust powers of the Delaware Trustee.
(iv) Neither the execution, delivery and performance by the
Delaware Trustee of the Trust Agreement, nor the consummation of any
of the transactions by the Delaware Trustee contemplated thereby, is
in violation of the charter or bylaws of the Delaware Trustee or of
the laws of the State of Delaware or of the federal laws of the
United States of America governing the trust powers of the Delaware
Trustee or, to our knowledge, without independent investigation, of
any indenture, mortgage, bank credit agreement, note or bond
purchase agreement, long-term lease, license or other agreement or
instrument to which it is a party or by which it is bound or, to our
knowledge, without independent investigation, of any judgment or
order applicable to the Delaware Trustee.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the laws of the State of Delaware.
(n) The Underwriters shall have received copies of each opinion of
counsel delivered to the Rating Agencies, together with a letter addressed
to the Underwriters, dated the Closing Date, to the effect that the
Underwriters may rely on each such opinion to the same extent as though
such opinion was addressed to each as of its date.
(o) The Underwriters shall have received an opinion of counsel to
the LIBOR Swap Counterparty, dated the Closing Date, in form and substance
satisfactory to the Underwriters and their counsel.
(p) The Underwriters shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, special Delaware counsel for the Trust, dated the Closing
Date, in form and substance satisfactory to the Underwriters and their
counsel, to the effect that:
(i) The Trust has been duly formed and is validly existing as
a statutory trust under the Delaware Statutory Trust Act, 12 Del. C.
Section 3801, et seq. (the "Trust Act"), and has the power and
authority under the Trust Agreement and the Trust Act to execute,
deliver and perform its obligations under the Basic Documents to
which it is a party.
(ii) Each of the Basic Documents to which the Trust is a party
has been duly authorized, executed and delivered by the Trust.
(iii) The Trust Agreement is the legal, valid and binding
obligation of Delaware Trustee and the Sponsor, enforceable against
the Delaware Trustee and the Sponsor in accordance with its terms.
(iv) Neither the execution, delivery and performance by the
Trust of the Basic Documents to which it is a party, nor the
consummation by the Trust of any of the transactions contemplated
thereby, requires the consent or approval of, the withholding of
objection on the part of, the giving of notice to, the filing,
registration or qualification with, or the taking of any other
action in respect of, any governmental authority or agency of the
State of Delaware, other than the filing of the Certificate of Trust
and UCC financing statements with the Secretary of State.
(v) Neither the execution, delivery and performance by the
Trust of the Basic Documents to which it is a party, nor the
consummation by the Trust of the transactions contemplated thereby,
is in violation of the Trust Agreement or of any law, rule or
regulation of the State of Delaware applicable to the Trust.
(vi) Under Section 3805(b) of the Trust Act, no creditor of
any Certificateholder shall have any right to obtain possession of,
or otherwise exercise legal or equitable remedies with respect to,
the property of the Trust except in accordance with the terms of the
Trust Agreement.
(vii) Under the Trust Act, the Trust is a separate legal
entity and, assuming that the Sponsor Student Loan Purchase
Agreement conveys good title to the Trust property to the Trust as a
true sale and not as a security arrangement, the Trust rather than
the Certificateholders will hold whatever title to the Trust
property as may be conveyed to it from time to time pursuant to the
Sponsor Student Loan Purchase Agreement, except to the extent that
the Trust has taken action to dispose of or otherwise transfer or
encumber any part of the Trust property.
(viii) Underss.3805(c) of the Trust Act, except to the extent
otherwise provided in the Trust Agreement, a Certificateholder
(including the Sponsor in its capacity as such) has no interest in
specific Trust property.
(ix) Under Section 3808(a) and (b) of the Trust Act, the Trust
may not be terminated or revoked by any Certificateholder, and the
dissolution, termination or bankruptcy of any Certificateholder
shall not result in the termination or dissolution of the Trust,
except to the extent otherwise provided in the Trust Agreement.
(q) The Underwriters shall have received an opinion of counsel to
SunTech, Inc., dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, to the
effect that:
(i) SunTech, Inc. has been duly formed and is validly existing
as a corporation in good standing under the laws of its jurisdiction
of organization, with full power and authority to own its properties
and conduct its business, and is duly qualified to transact business
and is in good standing in each jurisdiction in which its failure to
qualify would have a material adverse effect upon transactions
contemplated by the Basic Documents and its business or the
ownership of its property.
(ii) The Sub-Servicing Agreement and the Origination Agreement
have been duly authorized, executed and delivered by SunTech, Inc.
(iii) The Sub-Servicing Agreement and the Origination
Agreement are the legal, valid and binding obligations of SunTech,
Inc. enforceable against SunTech, Inc. in accordance with its terms.
(iv) Neither the execution, delivery and performance by
SunTech, Inc. of the Sub-Servicing Agreement or the Origination
Agreement, nor the consummation by SunTech, Inc. of the transactions
contemplated thereby, will
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of SunTech, Inc., pursuant to the terms of
the formation documents of SunTech, Inc. or any statute, rule,
regulation or order of any governmental agency or body, or any court
having jurisdiction over SunTech, Inc. or its properties, or any
agreement or instrument known to such counsel after due
investigation to which SunTech, Inc. is a party or by which SunTech,
Inc. or any of its properties is bound.
(v) No authorization, license, approval, consent or order of,
or filing with, any court or governmental agency or authority is
necessary in connection with the execution, delivery and performance
of the Sub-Servicing Agreement or the Origination Agreement.
(vi) There are no legal or governmental proceedings known to
such counsel to be pending to which SunTech, Inc. is a party or of
which any property of SunTech, Inc. is the subject, nor are any such
proceedings known to such counsel to be threatened or contemplated
by governmental authorities or threatened by others (i) asserting
the invalidity of all or any part of the Sub-Servicing Agreement or
the Origination Agreement or (ii) that could materially adversely
affect the ability of SunTech, Inc. to perform its obligations under
the Sub-Servicing Agreement or the Origination Agreement.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters.
(r) The Underwriters shall have received an opinion of counsel to
the Investment Agreement Provider, dated the Closing Date, in form and
substance satisfactory to the Underwriters and their counsel.
(s) The Underwriters shall have received a certificate dated the
Closing Date of the Sponsor, executed by 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 Secretary,
the principal financial officer or the principal accounting officer of the
Sponsor, in which such officer shall state that, (i) the representations
and warranties of the Sponsor contained in this Agreement and the other
Basic Documents to which it is a party are true and correct in all
material respects, (ii)that the Sponsor 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, and (iii) except as
may be disclosed in the Prospectus or in such certificate, no material
adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or properties of
the Sponsor has occurred.
(t) The Underwriters shall have received a certificate dated the
Closing Date of Collegiate Funding, executed by 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
Secretary, the principal financial officer or the principal accounting
officer of Collegiate Funding, in which such officer shall state that, (i)
the representations and warranties of Collegiate Funding contained in this
Agreement are true and correct in all material respects, (ii) that
Collegiate Funding 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, and (iii)
except as may be disclosed in the Prospectus or in such certificate, no
material adverse change, or any development involving a prospective
material adverse change, in or affecting particularly the business or
properties of Collegiate Funding has occurred.
(u) The Underwriters shall have received a certificate dated the
Closing Date of each of the Master Servicer and the Administrator,
executed by 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 Secretary, the principal financial
officer or the principal accounting officer of the Master Servicer and the
Administrator, as applicable, in which such officer shall state that (i)
the representations and warranties of the Master Servicer and the
Administrator, as applicable, contained in the Basic Documents to which it
is a party are true and correct in all material respects, (ii) that the
Master Servicer and the Administrator, as applicable, have 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 and (iii)
except as may be disclosed in the Prospectus or in such certificate, no
material adverse change, or any development involving a prospective
material adverse change, in or affecting particularly the business or
properties of the Master Servicer and the Administrator, as applicable,
has occurred.
(v) The Underwriters shall have received a certificate of a
responsible officer of SunTech, Inc., dated the Closing Date, in form and
substance satisfactory to the Underwriters and their counsel.
(w) The Underwriters shall have received a certificate of a
responsible officer of the Auction Agent, dated the Closing Date, in form
and substance satisfactory to the Underwriters and their counsel.
(x) The Underwriters shall have received evidence satisfactory to it
and counsel for the Underwriters that, on or before the Closing Date, the
Sponsor Financing Statements, the Seller Financing Statements and the
Trust Financing Statements shall have been submitted for filing in the
appropriate filing offices.
(y) The Underwriters shall have received written evidence
satisfactory to them and counsel for the Underwriters that the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class A-5 Notes and the Class A-6 Notes shall each be rated "AAA" by
Xxxxx'x and "AAA" by S&P, and the Class B Notes shall be rated at least
"A2" by Xxxxx'x and at least "A" by S&P, and neither corporation shall
have placed the Notes under surveillance or review with possible negative
implications.
(z) The Underwriters shall have received certificates dated the
Closing Date from each Guarantee Agency, satisfactory to the Underwriters
and counsel for the Underwriters, certifying as to certain information
with respect to each such Guarantee Agency contained in the Prospectus.
The Sponsor will provide or cause to be provided to the Underwriters such
conformed copies of such of the foregoing opinions, certificates, letters and
documents as the Underwriters shall reasonably request.
7. Indemnification and Contribution.
(a) The Sponsor and Collegiate Funding, jointly and severally, agree
to indemnify and hold harmless the Underwriters and each person, if any,
who controls the Underwriters within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, and the respective
affiliates, officers, directors and employees of the Underwriters and each
such person, against any losses, claims, damages or liabilities, joint or
several, to which the Underwriters or such controlling person and the
respective affiliates, officers, directors and employees of the
Underwriters and each such person may become subject, under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or based upon any
untrue statement or alleged untrue statement of any material fact
contained in any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or arising out of or based upon the omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to the
Underwriters furnished to the Sponsor in writing by the Underwriters
expressly for use therein; 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 or liability 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 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 Prospectus
(as then amended or supplemented but excluding documents incorporated by
reference therein) if Collegiate Funding has previously furnished
sufficient copies thereof to such Underwriter at a time reasonably prior
to the date such Notes are sold to such person.
(b) The Underwriters agree to indemnify and hold harmless the
Sponsor and Collegiate Funding and their directors, officers and each
Person, if any, who controls the Sponsor or Collegiate Funding within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the
Sponsor to the Underwriters, but only with reference to information
relating to the Underwriters furnished to the Sponsor in writing by the
Underwriters expressly for use in any Preliminary Prospectus or the
Prospectus or any amendments or supplements thereto. The written
information furnished by the Underwriters to the Sponsor consists solely
of the information set forth in the second paragraph (excluding the first
sentence thereof), the first sentence of the fifth paragraph and the
eighth paragraph under the heading "Plan of Distribution" in the
Prospectus Supplement (the "Underwriters' Information").
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of
which indemnity may be sought pursuant to Section 7(a) or 7(b), such
Person (the "Indemnified Party") shall promptly notify the Person against
whom such indemnity may be sought (the "Indemnifying Party") in writing;
provided, however, that the failure to notify the Indemnifying Party shall
not relieve the Indemnifying Party from any liability which it may have
under this Section 7 except to the extent that it has been materially
prejudiced by such failure and, provided
further, that the failure to notify the Indemnifying Party shall not
relieve the Indemnifying Party from any liability which it may have to the
Indemnified Party otherwise than under this Section 7. The Indemnifying
Party, upon request of the Indemnified Party, shall retain counsel
satisfactory to the Indemnified Party to represent the Indemnified Party
and any others the Indemnifying Party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to
such proceeding. In any such proceeding, an Indemnified Party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed to
the retention of such counsel, (ii) the named parties to any such
proceeding (including any impleaded parties) include both the Indemnifying
Party and the Indemnified Party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them, or (iii) the Indemnifying Party fails to retain
counsel as provided in the preceding sentence. It is understood that the
Indemnifying Party shall not, in respect of the legal expenses of any
Indemnified Party in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all such
Indemnified Parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing
by the Underwriters, in the case of parties indemnified pursuant to
Section 7(a), and by the Sponsor or Collegiate Funding, in the case of
parties indemnified pursuant to Section 7(b). The Indemnifying Party shall
not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Party agrees to indemnify the
Indemnified Party from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Party
is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Party, unless such settlement (i) does not
include a statement as to or admission of, fault, culpability or a failure
to act by or on behalf of any such Indemnified Party, and (ii) includes an
unconditional release of such Indemnified Party from all liability on
claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a)
or 7(b) is unavailable to an Indemnified Party or is insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then each Indemnifying Party under such paragraph, in lieu of indemnifying
such Indemnified Party thereunder, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Sponsor and Collegiate Funding on
the one hand and the Underwriters on the other hand from the offering of
the Notes or (ii) if the allocation provided by clause 7(d)(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 7(d)(i) above
but also the relative fault of the Sponsor or Collegiate Funding on the
one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Sponsor and Collegiate Funding on the
one hand and the Underwriters on the other hand in connection with the
offering of the Notes shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Notes (before
deducting expenses) received by the
Sponsor and the total discounts and commissions received by the
Underwriters, in each case as set forth in the Prospectus, bear to the
aggregate offering price of the Notes. The relative fault of the Sponsor
and Collegiate Funding on the one hand and of 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 Sponsor, Collegiate Funding or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) The Sponsor, Collegiate Funding and the Underwriters agree that
it would not be just or equitable if contribution pursuant to this Section
7 were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 7(d). The amount paid or payable by an Indemnified
Party as a result of the losses, claims, damages and liabilities referred
to in Section 7(d) 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 or defending any such
action or claim. Notwithstanding the provisions of this Section 7, the
Underwriters shall not be required to contribute any amount in excess of
the amount by which (i) the excess of the total price at which the Notes
are sold to investors by the Underwriters over the price paid by the
Underwriters for the Notes exceeds (ii) the amount of any damages that
such Underwriters has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent misrepresentation.
8. Default of Underwriter. If, at the Closing, any one or more of the
Underwriters shall fail or refuse to purchase Securities that it has or they
have agreed to purchase hereunder on such date, and the aggregate principal
amount of Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is ten percent or less of the aggregate
principal amount of Securities to be purchased on such date, the other
Underwriters may make arrangements satisfactory to the Underwriters for the
purchase of such Securities by other persons (who may include one or more of the
non-defaulting Underwriters, including the Underwriters), but if no such
arrangements are made by the Closing Date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Securities
set forth opposite their respective names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the
Underwriters may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date. If, at the Closing, any Underwriter or Underwriters shall fail or refuse
to purchase Securities and the aggregate principal amount of Securities with
respect to which such default occurs is more than ten percent of the aggregate
principal amount of Securities to be purchased, and arrangements satisfactory to
the Underwriters and the Sponsor for the purchase of such Securities are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Sponsor, except
as provided in Section 9. In any such case, either the Underwriters or the
Sponsor shall have the right to postpone the Closing, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 8. Any action taken under this
Section 8 shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
9. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Sponsor and Collegiate Funding and their respective officers and of the
Underwriters set forth in or made pursuant to this Agreement or contained in
certificates of officers of the Sponsor or Collegiate 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, the Sponsor, Collegiate Funding or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes. If for any reason the purchase of
the Notes by the Underwriters is not consummated, the Sponsor shall remain
responsible for the expenses to be paid or reimbursed by the Sponsor pursuant to
Section 5(k) hereof and the respective obligations of the Sponsor, Collegiate
Funding and the Underwriters pursuant to Section 7 shall remain in effect. If
for any reason the purchase of the Notes by the Underwriters is not consummated
(other than because of a failure to satisfy the conditions set forth in items
(iii), (iv) and (v) of Section 6(c) or a default by the Underwriters pursuant to
Section 8), the Sponsor will reimburse the Underwriters for all out-of-pocket
expenses reasonably incurred by it in connection with the offering of the Notes.
10. Notices. Any written request, demand, authorization, direction,
notice, consent or waiver shall be personally delivered or mailed certified
mail, return receipt requested (or in the form of telex or facsimile notice,
followed by written notice as aforesaid) and shall be deemed to have been duly
given upon receipt, if sent to the Underwriters, when delivered to the
Underwriters at 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx Xxxxx (Fax # (000) 000-0000) and if sent to the Sponsor when
delivered to 000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxxxxx, General Counsel (Fax # (000) 000-0000).
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any fight or obligations hereunder.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to the choice
of law provisions thereof.
[The rest of this page intentionally left blank.]
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Sponsor and the
Underwriters in accordance with its terms.
Very truly yours,
COLLEGIATE FUNDING OF
DELAWARE, L.L.C.
By: /s/ Xxxxx Xxxxxxxxxx
----------------------
Name: Xxxxx Xxxxxxxxxx
Title: Treasurer
COLLEGIATE FUNDING SERVICES, L.L.C.
By: /s/ Xxxxx Xxxxxxxxxx
----------------------
Name: Xxxxx Xxxxxxxxxx
Title: Treasurer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first written above.
XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxxx Xxxxx
-----------------
Name: Xxxxx Xxxxx
Title: Managing Director
UBS PAINEWEBBER INC.
By: /s/ Xxxxxxxx X. Dardaby
-------------------------
Name: Xxxxxxxx X. Dardaby
Title: Vice President
UBS WARBURG LLC
By: /s/ Bric X. Xxxxxx
--------------------
Name: Bric X. Xxxxxx
Title: Director
[Signature Page for Collegiate Funding Services Education XxxxXxxxx0000-
XXxxxxxxxxxxxXxxxxxxxx]
