Exhibit 1.1
College Loan Corporation Trust 20__-_
$_________________
Student Loan Asset-Backed Notes, Series 20__-_
UNDERWRITING AGREEMENT
_____________, 20__
[Underwriter]
[Address]
[City, State Zip Code]
[Underwriter]
[Address]
[City, State Zip Code]
Ladies and Gentlemen:
College
Loan LLC, a Delaware limited liability company (the "Sponsor") proposes to cause
College Loan Corporation Trust 20__-_, a [Delaware statutory trust] (the
"Company"), to sell to _________________ and _________________ (the
"Representatives") and the other underwriters listed on Schedule A hereto
(each an "Underwriter" and collectively with the Representatives, the
"Underwriters"), pursuant to the terms of this Underwriting Agreement,
$___________ aggregate principal amount of the Company’s Student Loan
Asset-Backed Notes (the "Notes") in the classes and initial principal amounts
set forth on Schedule A hereto. _________________, a _________________, will act
as eligible lender on behalf of the Company. The Notes will be issued under an
Indenture of Trust dated as of ____________, 20__ (the "Indenture") between the
Company and _________________________, as indenture trustee (the "Trustee").
Upon issuance, the Notes will be secured by, among other things, Financed
Eligible Loans (as defined in the Indenture) pledged to the Trustee and
described in the Prospectus (as defined in Section 3 below). The Financed
Eligible Loans will be serviced by College Loan Corporation, a California
corporation (in such capacity, the "Master Servicer") pursuant to a Master
Servicing Agreement dated as of __________, 20__ (the "Servicing Agreement"),
between the Master Servicer and the Company. Master Servicer has entered into a
loan subservicing agreement with ____________, ("_____" or "the Subservicer")
dated as of ____________, 20__ (the "Subservicing Agreement") pursuant to which
_______ will act as subservicer with respect to all of the Financed Eligible
Loans.
This
Agreement, the Loan Purchase Agreement, dated as of ____________, 20__ between
_____________________ ("________") and the Sponsor (along with the related Loan
Transfer Addendum, the "___________ Purchase Agreement"), the Loan Purchase
Agreement dated as of _____________, 20__ between the Sponsor and the Company
(along with the related Loan Transfer Addendum, the "College Loan Trust Purchase
Agreement" and, together with the _________ Purchase Agreement, the "Purchase
Agreements"), the Trust Agreement, dated as of ______________, 20__, among
___________________, as Delaware trustee ("the Delaware Trustee"), and the
Sponsor, as initial certificateholder and sponsor (the "Trust Agreement"), the
Administration Agreement, dated as of ____________, 20__, (the "Administration
Agreement") among the Company, the Delaware Trustee, the Trustee and Master
Servicer (in such capacity, the "Issuer Administrator"), the Eligible Lender
Trust Agreement, dated as of ____________, 20__, between
________________________ (in such capacity, the "Eligible Lender Trustee") and
the Sponsor (the "Sponsor Eligible Lender Agreement"), the Eligible Lender Trust
Agreement, dated as of ________, 20__, between the Eligible Lender Trustee and
the Company (the "Company Eligible Lender Agreement" and together with the
Sponsor Eligible Lender Agreement, the "Eligible Lender Agreements"), the
Custodian Agreement, dated ___________, 20__, among the Company, the Trustee,
the Eligible Lender Trustee and ____, as custodian (the "Custodian Agreement"),
the Servicing Agreement, the Subservicing Agreement and the Indenture shall
collectively hereinafter be referred to as the "Basic Documents."
Capitalized
terms used herein without definition shall have the meanings ascribed to them in
the Indenture or the Prospectus.
The
Sponsor proposes to cause the Company, upon the terms and conditions set forth
herein, to sell to each of the Underwriters on the Closing Date (as hereinafter
defined) the aggregate principal amount of each Class of Notes set forth next to
the name of each Underwriter on Schedule A hereto.
The
Sponsor wishes to confirm as follows this agreement with the Underwriters in
connection with the purchase and resale of the Notes.
1. Agreements to
Sell, Purchase and Resell. (a) The Sponsor hereby agrees, subject to all the
terms and conditions set forth herein, to cause the Company to sell to each of
the Underwriters and, upon the basis of the representations, warranties and
agreements of the Sponsor herein contained and subject to all the terms and
conditions set forth herein, each of the Underwriters severally and not jointly
agrees to purchase from the Company, such principal amount of each Class of the
Notes at such respective purchase prices as are set forth next to the name of
each Underwriter on Schedule A hereto.
(b) It is understood that the Underwriters propose
to offer the Notes for sale to the public (which may include selected dealers)
as set forth in the Prospectus.
2. Delivery of
the Notes and Payment Therefor. Delivery to the Underwriters of and payment
for the Notes shall be made at the office of _____________, at _____, _______
time, on _________, 20__ (the "Closing Date"). The place of such closing and the
Closing Date may be varied by agreement between the Representatives and the
Sponsor.
The
Notes will be delivered to the Underwriters against payment of the purchase
price therefor to the Company in Federal Funds, by wire transfer to an account
at a bank acceptable to the Representatives, or such other form of payment as to
which the parties may agree. Unless otherwise agreed to by the Sponsor and the
Representatives, each Class of Notes will be evidenced by a single global
security in definitive form deposited with the Trustee as custodian for DTC
and/or by additional definitive securities, and will be registered, in the case
of the global Classes of Notes, in the name of Cede & Co. as nominee of The
Depository Trust Company ("DTC"), and in the other cases, in such
names and in such denominations as the Underwriters shall request prior to 1:00
p.m., New York City time, no later than the business day preceding the Closing
Date. The Notes to be delivered to the Underwriters shall be made available to
the Underwriters in ____________, _________, for inspection and packaging not
later than 9:30 a.m., _________ time, on the business day next preceding the
Closing Date.
3.
Representations and Warranties of the Sponsor. The Sponsor represents and
warrants to each of the Underwriters that:
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(a)
A registration statement on Form S-3 (No. 333-______), including a prospectus
and such amendments thereto as may have been required to the date hereof,
relating to the Notes and the offering thereof from time to time in accordance
with Rule 415 under the Securities Act of 1933, as amended (the "Act"), has been
filed with the Securities and Exchange Commission (the "SEC" or the
"Commission") and such registration statement, as amended, has become effective;
such registration statement, as amended, and the prospectus relating to the sale
of the Notes offered thereby constituting a part thereof, as from time to time
amended or supplemented (including the base prospectus, any prospectus
supplement filed with the Commission pursuant to Rule 424(b) under the Act, the
information deemed to be a part thereof pursuant to Rule 430A(b) under the Act,
and the information incorporated by reference therein) are respectively referred
to herein as the "Registration Statement" and the "Prospectus"; and the
conditions to the use of a registration statement on Form S-3 under the Act, as
set forth in the General Instructions to Form S-3, and the conditions of Rule
415 under the Act, have been satisfied with respect to the Registration
Statement; |
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(b)
On the effective date of the Registration Statement, the Registration Statement
and the Prospectus conformed in all respects to the requirements of the Act, the
rules and regulations of the SEC (the "Rules and Regulations") and the Trust
Indenture Act of 1939, as amended, and the rules and regulations thereunder (the
"Trust Indenture Act"), and, except with respect to information omitted pursuant
to Rule 430A of the Act, did not include any untrue statement of a material fact
or, in the case of the Registration Statement, omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading and, in the case of the Prospectus, omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and on the date of this Agreement
and on the Closing Date, the Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act, the Rules and
Regulations and the Trust Indenture Act, and neither of such documents included
or will include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the foregoing does not apply to
statements in or omissions from the Registration Statement or the Prospectus
based upon written information furnished to the Sponsor by the Underwriters,
specifically for use therein.
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(c)
The Commission has not issued and, to the best knowledge of the Company, is not
threatening to issue any order preventing or suspending the use of the
Registration Statement. |
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(d)
As of the Closing Date, each consent, approval, authorization or order of, or
filing with, any court or governmental agency or body which is required to be
obtained or made by or its affiliates for the consummation of the transactions
contemplated by this Agreement shall have been obtained, except as otherwise
provided in the Basic Documents. |
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(e)
The Indenture has been duly and validly authorized by the Sponsor and, upon its
execution and delivery by the Company and assuming due authorization, execution
and delivery by the Trustee, will be a valid and binding agreement of the
Company, enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights generally and conform in all material respects to the
description thereof in the Prospectus. The Indenture has been duly qualified
under the Trust Indenture Act with respect to the Notes. |
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(f)
The Notes have been duly authorized by the Company and the Notes to be issued on
the Closing Date, when executed by the Company and authenticated by the Trustee
in accordance with the Indenture, and delivered to the Underwriters against
payment therefor in accordance with the terms hereof, will have been validly
issued and delivered, and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in accordance
with their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance or other similar laws relating to
or affecting creditors' rights generally and court decisions with respect
thereto, and the Notes will conform in all material respects to the description
thereof in the Prospectus. |
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(g)
The Sponsor is a limited liability company duly organized, validly existing and
in good standing under the laws of the State of California with full power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and as conducted on the date hereof, and is duly
registered and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
so to register or qualify does not have a material adverse effect on the
condition (financial or other), business, prospects, properties, net worth or
results of operations of the Sponsor. |
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(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 of its affiliates any brokerage or finder's fee or other fee or
commission as a result of any of the transactions contemplated by this
Agreement. |
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(i)
There are no legal or governmental proceedings pending or threatened or, to the
knowledge of the Sponsor contemplated, against the Sponsor, or to which the
Sponsor or any of its properties is subject, that are not disclosed in the
Prospectus and which, if adversely decided, would individually or in the
aggregate have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Sponsor, or would
materially and adversely affect the ability of the Sponsor, or the Company to
perform its obligations under this Agreement and the other Basic Documents or
otherwise materially affect the issuance of the Notes or the consummation of the
transactions contemplated hereby or by the Basic Documents. |
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(j)
Neither the offer, sale or delivery of the Notes by the Company nor the
execution, delivery or performance of this Agreement or the other Basic
Documents by the Sponsor or the Company, nor the consummation by the Sponsor or
the Company of the transactions contemplated hereby or thereby (i) requires or
will require any consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative agency
or other governmental body, agency or official (except for compliance with the
securities or Blue Sky laws of various jurisdictions, the qualification of the
Indenture under the Trust Indenture Act and such other consents, approvals or
authorizations as shall have been obtained prior to the Closing Date) or
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, the organizational documents of the Sponsor or the Company
or (ii) conflicts or will conflict with or constitutes or will constitute a
breach of, or a default under, in any material respect, any agreement,
indenture, lease or other instrument to which the Sponsor or the Company is a
party or by which the Sponsor or the Company or any of its respective properties
may be bound, or violates or will violate in any material respect any statute,
law, regulation or filing or judgment, injunction, order or decree applicable to
the Sponsor or the Company or any of its respective properties, or will result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Sponsor or the Company pursuant to the terms of any
agreement or instrument to which it is a party or by which it may be bound or to
which any of its properties is subject other than as contemplated by the Basic
Documents.
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(k)
The Sponsor has all requisite power and authority to execute, deliver and
perform its obligations under this Agreement and the other Basic Documents to
which it is a party; the execution and delivery of, and the performance by the
Sponsor of its obligations under, this Agreement and the other Basic Documents
to which it is a party have been duly and validly authorized by the Sponsor and
this Agreement and the other Basic Documents have been duly executed and
delivered by the Sponsor and constitute the valid and legally binding agreements
of the Sponsor, enforceable against the Sponsor in accordance with their
respective terms, except as the enforcement hereof and thereof may be limited by
bankruptcy, insolvency, moratorium, fraudulent conveyance or other similar laws
relating to or affecting creditors' rights generally and court decisions with
respect thereto and subject to the applicability of general principles of
equity, and except as rights to indemnity and contribution hereunder and
thereunder may be limited by Federal or state securities laws or principles of
public policy.
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(l)
The Sponsor's assignment and delivery of Financed Eligible Loans to the order of
the Trustee on behalf of the Company pursuant to the College Loan Trust Purchase
Agreement will vest in the Trustee on behalf of the Company all of the Sponsor's
right, title and interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
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(m)
The Company's assignment of the Financed Eligible Loans to the Trustee pursuant
to the Indenture will vest in the Trustee, for the benefit of the Noteholders, a
first priority perfected security interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other encumbrance.
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(n)
The Company is not, nor as a result of the issuance and sale of the Notes as
contemplated hereunder will it become, subject to registration as an "investment
company" under the Investment Company Act of 1940, as amended.
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(o)
The representations and warranties made by the Sponsor in any Basic Document to
which the Sponsor is a party and made in any Officer's Certificate of the
Company will be true and correct at the time made and on and as of the
applicable Closing Date.
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(p)
Since the date of the Prospectus, no material adverse change or any development
involving a prospective material adverse change in, or affecting particularly
the business or properties of, the Sponsor has occurred.
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4. Agreements of
the Sponsor. The Sponsor agrees with each of the Underwriters as
follows:
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(a)
The Sponsor will prepare a supplement to the Prospectus setting forth the amount
of the Notes covered thereby and the terms thereof not otherwise specified in
the Prospectus, the price at which the Notes are to be purchased by the
Underwriters, either the initial public offering price or the method by which
the price at which the Notes are to be sold will be determined, the selling
concessions and reallowances, if any, and such other information as the
Underwriters and the Sponsor deem appropriate in connection with the offering of
the Notes, and the Sponsor will timely file such supplement to the prospectus
with the SEC pursuant to Rule 424(b) under the Act, but the Sponsor will not
file any amendments to the Registration Statement as in effect with respect to
the Notes or any amendments or supplements to the Prospectus, unless it shall
first have delivered copies of such amendments or supplements to the
Underwriters, with reasonable opportunity to comment on such proposed amendment
or supplement or if the Underwriters shall have reasonably objected thereto
promptly after receipt thereof; the Sponsor will immediately advise the
Underwriters or the Underwriters' counsel (i) when notice is received from the
SEC that any post-effective amendment to the Registration Statement has become
or will become effective and (ii) of any order or communication suspending or
preventing, or threatening to suspend or prevent, the offer and sale of the
Notes or of any proceedings or examinations that may lead to such an order or
communication, whether by or of the SEC or any authority administering any state
securities or Blue Sky law, as soon as the Sponsor is advised thereof, and will
use its best efforts to prevent the issuance of any such order or communication
and to obtain as soon as possible its lifting, if issued.
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(b)
If, at any time when the Prospectus relating to the Notes is required to be
delivered under the Act, any event occurs as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or
if it is necessary at any time to amend or supplement the Prospectus to comply
with the Act or the Rules and Regulations, the Sponsor promptly will notify each
of the Representatives of such event and will promptly prepare and file with the
SEC, at its own expense, an amendment or supplement to such Prospectus that will
correct such statement or omission or an amendment that will effect such
compliance. Neither the Representatives' consent to, nor the Representatives'
delivery of, any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 6 hereof.
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(c)
The Sponsor will immediately inform the Representatives (i) of the receipt by
the Sponsor of any communication from the SEC or any state securities authority
concerning the offering or sale of the Notes and (ii) of the commencement of any
lawsuit or proceeding to which the Sponsor is a party relating to the offering
or sale of the Notes.
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(d)
The Sponsor will furnish to the Representatives, without charge, copies of the
Registration Statement (including all documents and exhibits thereto or
incorporated by reference therein), the Prospectus, and all amendments and
supplements to such documents relating to the Notes, in each case in such
quantities as the Representatives may reasonably request.
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(e)
No amendment or supplement will be made to the Registration Statement or
Prospectus which the Underwriters shall not previously have been advised or to
which it shall reasonably object after being so advised.
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(f)
The Sponsor will cooperate with the Underwriters and with their counsel in
connection with the qualification of, or procurement of exemptions with respect
to, the Notes for offering and sale by the Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions as the Underwriters may
designate and will file such consents to service of process or other documents
necessary or appropriate in order to effect such qualification or exemptions;
provided that in no event shall the Sponsor be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to service of process in suits, other than those
arising out of the offering or sale of the Notes, in any jurisdiction where it
is not now so subject.
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(g)
The Sponsor consents to the use, in accordance with the securities or Blue Sky
laws of such jurisdictions in which the Notes are offered by the Underwriters
and by dealers, of the Prospectus furnished by the Sponsor.
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(h)
To the extent, if any, that the rating or ratings provided with respect to the
Notes by the rating agency or agencies that initially rate the Notes is
conditional upon the furnishing of documents or the taking of any other actions
by the Sponsor, the Sponsor shall cause to be furnished such documents and such
other actions to be taken.
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(i)
So long as any of the Notes are outstanding, the Sponsor will furnish to the
Underwriters (i) as soon as available, a copy of each document relating to the
Notes required to be filed with the SEC pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), or any order of the SEC thereunder,
and (ii) such other information concerning the Sponsor as the Underwriters may
request from time to time.
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(j)
If this Agreement shall terminate or shall be terminated after execution and
delivery pursuant to any provisions hereof (otherwise than by notice given by
the Representatives terminating this Agreement pursuant to Section 8 or Section
9 hereof) or if this Agreement shall be terminated by the Representatives
because of any failure or refusal on the part of the Sponsor to comply with the
terms or fulfill any of the conditions of this Agreement, the Sponsor agrees to
reimburse the Underwriters for all out-of-pocket expenses (including fees and
expenses of their counsel) reasonably incurred by it in connection herewith, but
without any further obligation on the part of the Sponsor for loss of profits or
otherwise.
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(k)
The net proceeds from the sale of the Notes hereunder will be applied
substantially in accordance with the description set forth in the Prospectus. |
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(l)
Except as stated in this Agreement and in the Prospectus, the Sponsor has not
taken, nor will it take, directly or indirectly, any action designed to or that
might reasonably be expected to cause or result in stabilization or manipulation
of the price of the Notes to facilitate the sale or resale of the Notes. |
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(m)
For a period from the date of this Agreement until the retirement of the Notes,
the Company will deliver to you the annual statements of compliance and the
annual independent certified public accountants' reports furnished to the
Trustee or the Sponsor pursuant to the Servicing Agreement as soon as such
statements and reports are furnished to the Trustee or the Sponsor. |
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(n)
On or before the Closing Date, the Sponsor shall xxxx its accounting and other
records, if any, relating to the Financed Eligible Loans and shall cause the
Servicer and ________ to xxxx their respective computer records relating to the
Financed Eligible Loans to show the absolute ownership by the Trustee, as
eligible lender of, and the interest of the Company in, the Financed Eligible
Loans, and the Sponsor shall not take, or shall permit any other person to take,
any action inconsistent with the ownership of, and the interest of the Company
in, the Financed Eligible Loans, other than as permitted by the Basic Documents.
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(o)
If, at the time the Registration Statement became effective, any information
shall have been omitted therefrom in reliance upon Rule 430A under the 1933 Act,
then, immediately following the execution of this Agreement, the Sponsor will
prepare, and file or transmit for filing with the Commission in accordance with
such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended
Prospectus containing all information so omitted.
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(p)
As soon as practicable, but not later than 16 months after the date of this
Agreement, the Sponsor will make generally available to its securityholders an
earnings statement covering a period of at least 12 months beginning after the
later of (i) the effective date of the Registration Statement, (ii) the
effective date of the most recent post-effective amendment to the Registration
Statement to become effective prior to the date of this Agreement and (iii) the
date of the Company's most recent Annual Report or Form 10-K filed with the
Commission prior to the date of this Agreement, which will satisfy the
provisions of Section 11(a) of the Act.
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5.
Indemnification and Contribution. (a) the Sponsor agrees to indemnify and
hold harmless each of the Underwriters and each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and expenses (or actions in respect thereof) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus, or in any amendment or supplement
thereto, or any preliminary prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability, or action as such expenses are incurred,
except insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with the information relating to an Underwriter
furnished in writing to the Sponsor by such Underwriter through the
Representatives expressly for use therein, it being understood that the only
such information furnished by any Underwriter consists of the information
described as such in Section 10 of this Agreement; provided,
however, that the indemnification contained in this paragraph (a) with
respect to any preliminary prospectus shall not inure to the benefit of an
Underwriter (or to the benefit of any person controlling an Underwriter) on
account of any such loss, claim, damage, liability or expense arising from the
sale of the of Notes by an Underwriter to any person if the untrue statement or
alleged untrue statement or omission or alleged omission of a material fact
contained in such preliminary prospectus was corrected in the final Prospectus
and such Underwriter sold Notes to that person without sending or giving at or
prior to the written confirmation of such sale, a copy of the final Prospectus
(as then amended or supplemented but excluding documents incorporated by
reference therein) if the Sponsor has previously furnished sufficient copies
thereof to such Underwriter at a time reasonably prior to the date such Notes
are sold to such person. The foregoing indemnity agreement shall be in addition
to any liability which the Sponsor may otherwise have.
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(b)
If any action, suit or proceeding shall be brought against an Underwriter or any
person controlling an Underwriter in respect of which indemnity may be sought
against the Sponsor, such Underwriter or such controlling person shall promptly
notify the parties against whom indemnification is being sought (the
"indemnifying parties"), but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party under Sections 5(a) and 5(c) hereof, except to the extent that the
indemnifying party is materially prejudiced by such omission, and in no event
shall the omission so to notify relieve the Sponsor from any liability which it
may otherwise have. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party). The applicable Underwriter or any such
controlling person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless (i) the indemnifying parties have agreed in
writing to pay such fees and expenses, (ii) the indemnifying parties have failed
to assume the defense and employ counsel, or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both the
Underwriter or such controlling person and the indemnifying parties and the
Underwriter or such controlling person shall have been advised by its counsel
that there may be one or more legal defenses available to it which are different
from or additional to or in conflict with those available to the indemnifying
parties and in the reasonable judgment of such counsel it is advisable for the
Underwriter or such controlling person to employ separate counsel (in which case
the indemnifying party shall not have the right to assume the defense of such
action, suit or proceeding on behalf of the Underwriter or such controlling
person). It is understood, however, that the indemnifying parties shall, in
connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for each Underwriter
and controlling persons not having actual or potential differing interests with
such Underwriter or among themselves, which firm shall be designated in writing
by such Underwriter, and that all such fees and expenses shall be reimbursed on
a monthly basis as provided in paragraph (a) hereof. An indemnifying party will
not, without the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding and (ii) does not include a statement as to, or an
admission of fault, culpability or a failure to act by or on behalf of an
indemnified party.
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(c)
Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the Sponsor and its directors and officers, and any person who controls
the Sponsor within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, to the same extent as the indemnity from the Sponsor to the
Underwriters set forth in paragraph (a) hereof, but only with respect to
information relating to such Underwriter furnished in writing by such
Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus therein, it being understood that the only such
information furnished by any Underwriter consists of the information described
as such in Section 10 of this Agreement. If any action, suit or proceeding shall
be brought against the Sponsor, any of its directors or officers, or any such
controlling person based on the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus and in
respect of which indemnity may be sought against an Underwriter pursuant to this
paragraph (c), such Underwriter shall have the rights and duties given to the
Sponsor by paragraph (b) above (except that if the Sponsor shall have assumed
the defense thereof the Underwriter shall have the option to assume such defense
but shall not be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at such Underwriter's expense), and the Sponsor, its directors and
officers, and any such controlling person shall have the rights and duties given
to the Underwriters by paragraph (b) above. The foregoing indemnity agreement
shall be in addition to any liability which the Underwriters may otherwise have.
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(d)
If the indemnification provided for in this Section 5 is unavailable to an
indemnified party under paragraphs (a) or (c) hereof in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Sponsor on
the one hand and the applicable Underwriter on the other hand from the offering
of the Notes, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Sponsor on the one hand and the applicable Underwriter on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Sponsor on the
one hand and an Underwriter on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Notes (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriter. The relative fault of
the Sponsor on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Sponsor on the one hand
or by an Underwriter on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
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(e)
the Sponsor and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 5 were determined by a pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 5, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter with respect to the Notes underwritten
by such Underwriter exceed the sum of the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and the amount of any
damages such Underwriter has been required to pay under the Indemnity Agreement
dated as of the date hereof among the Representatives, on behalf of themselves
and the other Underwriters, and College Loan Corporation. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this paragraph
(e) to contribute are several in proportion to their respective underwriting
obligations.
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(f)
Any losses, claims, damages, liabilities or expenses for which an indemnified
party is entitled to indemnification or contribution under this Section 5 shall
be paid by the indemnifying party to the indemnified party as such losses,
claims, damages, liabilities or expenses are incurred. The indemnity and
contribution agreements contained in this Section 5 and the representations and
warranties of the Sponsor and the Underwriters set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of the Underwriters, the Sponsor or any
person controlling any of them or their respective directors or officers, (ii)
acceptance of any Notes and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to the Underwriters, the Sponsor or
any person controlling any of them or their respective directors or officers,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 5.
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6. Conditions of
the Underwriters' Obligations. The obligations of the Underwriters to
purchase the Notes hereunder are subject to the following conditions
precedent:
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(a)
All actions required to be taken and all filings required to be made by the
Sponsor under the Act prior to the sale of the Notes shall have been duly taken
or made. At and prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Sponsor or the Underwriters, shall be contemplated by the Commission.
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(b)
Subsequent to the effective date of this Agreement, there shall not have
occurred (i) any change, or any development or event involving a prospective
change, in or affecting the condition (financial or other), business,
properties, net worth, or results of operations of the Sponsor, the Servicer,
College Loan Corporation or the Subservicer not contemplated by the Registration
Statement, which in the opinion of the Representatives, would materially
adversely affect the market for the Notes, (ii) any downgrading in the rating of
any debt securities of trusts sponsored by the Sponsor, the Servicer, College
Loan Corporation or the Subservicer by any nationally recognized statistical
rating organization or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of trusts
sponsored by the Sponsor, the Servicer, College Loan Corporation or the
Subservicer (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating), or
(iii) any event or development which makes any statement made in the
Registration Statement or Prospectus untrue or which, in the opinion of the
Sponsor and its counsel or the Underwriters and their counsel, requires the
filing of any amendment to or change in the Registration Statement or Prospectus
in order to state a material fact required by any law to be stated therein or
necessary in order to make the statements therein not misleading, if amending or
supplementing the Registration Statement or Prospectus to reflect such event or
development would, in the opinion of the Representatives, materially adversely
affect the market for the Notes.
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(c)
You shall have received an opinion addressed to you of Stroock & Stroock & Xxxxx
LLP ("SSL"), in its capacity as counsel to the Company, dated the Closing Date,
in form and substance satisfactory to you and your counsel with respect to the
Basic Documents to which the Sponsor is a party and to the validity of the Notes
and such related matters as you shall reasonably request. In addition, you shall
have received an opinion addressed to you of SSL, in its capacity as counsel for
the Company, in form and substance satisfactory to you and your counsel,
concerning "true sale," "non- consolidation" and "first perfected security
interest" and certain other issues with respect to the transfer of the Financed
Eligible Loans from College Loan Corporation to the Sponsor, from the Sponsor to
the Company and from the Company to the Trustee.
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(d)
You shall have received an opinion addressed to you of SSL, in its capacity as
counsel for the Sponsor and the Company, dated the Closing Date, in form and
substance satisfactory to you and your counsel to the effect that the statements
in the Prospectus under the headings "Federal Income Tax Consequences" and
"ERISA Considerations", to the extent that they constitute statements of matters
of law or legal conclusions with respect thereto, have been prepared or reviewed
by such counsel and are correct in all material respects.
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(e)
You shall have received an opinion addressed to you of SSL, in its capacity as
counsel for the Sponsor and the Company, dated the Closing Date, in form and
substance satisfactory to you and your counsel with respect to the character of
the Notes for federal tax purposes.
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(f)
You shall have received an opinion addressed to you of ______________, in its
capacity as Underwriters' Counsel, dated the Closing Date, in form and substance
satisfactory to you.
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(g)
You shall have received an opinion addressed to you of SSL, in its capacity as
counsel for the Sponsor and the Company, dated the Closing Date in form and
substance satisfactory to you and your counsel with respect to the Prospectus
and the Registration Statement and certain matters arising under the Trust
Indenture Act of 1939, as amended, and the Investment Company Act of 1940, as
amended.
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(h)
You shall have received opinions addressed to you of SSL as counsel to the
Master Servicer and Issuer Administrator, and the Sponsor and College Loan
Corporation, each dated the Closing Date and satisfactory in form and substance
to you and your counsel, to the effect that:
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(i)
Each of Master Servicer, Issuer Administrator, College Loan Corporation and the
Sponsor is a limited liability company, in good standing under the laws of its
respective state of organization; each having the full power and authority
(corporate and other) to own its properties and conduct its business, as
presently conducted by it, and to enter into and perform its obligations under
each of the Basic Documents to which it is a party.
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(ii)
Each Basic Document to which each of Master Servicer, the Sponsor, Issuer
Administrator and College Loan Corporation is a party has been duly authorized,
executed and delivered by such party and each such agreement is the legal, valid
and binding obligation of such party, enforceable against it, in accordance with
its terms, except (x) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and (y) remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
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(iii)
Neither the execution and delivery by Master Servicer, the Sponsor, Issuer
Administrator or College Loan Corporation, of the Basic Documents to which it is
a party, nor the consummation by such parties of the transactions contemplated
therein nor the fulfillment of the terms thereof by such parties will conflict
with, result in a material breach, violation or acceleration of, or constitute a
default under, any term or provision of the limited liability company agreement
of Master Servicer, the Sponsor, Issuer Administrator or College Loan
Corporation or of any material indenture or other material agreement or
instrument to which Master Servicer, the Sponsor, Issuer Administrator or
College Loan Corporation is a party or by which Master Servicer, the Sponsor,
Issuer Administrator or College Loan Corporation is bound, or result in a
violation of or contravene the terms of any statute, order or regulation
applicable to Master Servicer, the Sponsor, Issuer Administrator or College Loan
Corporation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over Master Servicer, the Sponsor, Issuer Administrator
or College Loan Corporation.
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(iv)
There are no actions, proceedings or investigations pending or, to the best of
such counsel's knowledge after due inquiry and reasonable investigation,
threatened against Master Servicer, the Sponsor, Issuer Administrator or College
Loan Corporation before or by any governmental authority that might materially
and adversely affect the performance by Master Servicer, the Sponsor, Issuer
Administrator or College Loan Corporation of its obligations under, or the
validity or enforceability of, any Basic Documents to which it is a party.
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(v)
No authorization, approval, or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the due execution,
delivery and performance by Master Servicer, the Sponsor, Issuer Administrator
or College Loan Corporation of any Basic Document to which it is a party.
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(i)
You shall have received opinions addressed to you of _________________, in their
capacity as counsel to the Delaware Trustee, and as Delaware counsel to the
Company and the Sponsor, dated the Closing Date and in form and substance
satisfactory to you and your counsel.
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(j)
You shall have received an opinion addressed to you of counsel to the Trustee
and the Eligible Lender Trustee, dated the Closing Date and in form and
substance satisfactory to you and your counsel.
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(k)
You shall have received certificates addressed to you dated the Closing Date of
any two of the executive officers of the Sponsor, the Company, Master Servicer
and Issuer Administrator in which such officers shall state that, to the best of
their knowledge after reasonable investigation, (i) the representations and
warranties of the Sponsor, the Company, Master Servicer and Issuer
Administrator, as applicable, contained in each of the Basic Documents to which
it is a party are true and correct in all material respects, that each of the
Sponsor, the Company, Master Servicer and Issuer Administrator has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date, (ii) that each
of the Sponsor, the Company, Master Servicer and Issuer Administrator has
reviewed the Prospectus and that the information therein regarding the Sponsor,
the Company, Master Servicer and Issuer Administrator, as applicable, is fair
and accurate in all material respects, and (iii) since the date set forth in
such certificate, except as may be disclosed in the Prospectus, no material
adverse change or any development involving a prospective material adverse
change, in or affecting particularly the business or properties of the Sponsor,
the Company, Master Servicer and Issuer Administrator, as applicable, has
occurred.
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(l)
You shall have received evidence satisfactory to you that, on or before the
Closing Date, UCC-1 financing statements have been or are being filed in the
office of the Secretary of State of the State of Delaware reflecting the grant
of the security interest by the Company in the Financed Eligible Loans and the
proceeds thereof to the Trustee.
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(m)
You shall have received a certificate addressed to you dated the Closing Date
from a responsible officer acceptable to you of the Eligible Lender Trustee in
form and substance satisfactory to you and your counsel and to which shall be
attached each Guarantee Agreement.
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(n)
The Underwriters shall have received on the Closing Date from [Accountants] a
letter dated the Closing Date, and in form and substance satisfactory to the
Representatives, to the effect that they have carried out certain specified
procedures, not constituting an audit, with respect to certain information
regarding the Financed Eligible Loans and setting forth the results of such
specified procedures.
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(o)
All the representations and warranties of each of the Sponsor, Master Servicer,
Issuer Administrator, College Loan Corporation or the Company contained in this
Agreement and the other Basic Documents to which it is a party shall be true and
correct in all material respects on and as of the date hereof and on and as of
the Closing Date as if made on and as of the Closing Date and the Underwriters
shall have received certificates, dated the Closing Date and signed by an
executive officer of the Sponsor to the effect set forth in this Section 6(p)
and in Section 6(q) hereof.
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(p)
The Sponsor, Master Servicer, the Company, Issuer Administrator or College Loan
Corporation shall not have failed at or prior to the Closing Date to have
performed or complied with any of its agreements herein contained and required
to be performed or complied with by it hereunder at or prior to the Closing
Date.
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(q)
The Underwriters shall have received by instrument dated the Closing Date (at
the option of the Representatives), in lieu of or in addition to the legal
opinions referred to in this Section 6, the right to rely on opinions provided
by such counsel and all other counsel under the terms of the Basic Documents.
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(r)
Each class of Class A Notes shall be rated "AAA", "AAA" and "Aaa", respectively,
by [Fitch, Inc.] ("[Fitch]"), [Standard & Poor's Ratings Service, a division of
The XxXxxx-Xxxx Companies] ("[S&P]"), and [Xxxxx'x Investors Services], Inc.
("[Moody's]"), the Class B Notes shall be rated "A", "A-" and "A2", or higher,
by [Fitch], [S&P] and [Moody's], respectively, and that neither [Fitch], [S&P]
nor [Moody's] have placed the Notes under surveillance or review with possible
negative implications.
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(s)
You shall have received a certificate addressed to you dated the Closing Date of
the Guaranty Agency to the effect that (i) the information in the Prospectus
with respect to the Guaranty Agency is true and correct and is fair and accurate
in all material respects and (ii) that since the date of the Prospectus, no
material adverse change in or affecting the business or properties of the
Guarantee Agency has occurred.
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(t)
You shall have received such other opinions, certificates and documents as are
required under the Indenture as a condition to the issuance of the Notes.
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The Sponsor will provide or cause to be provided
to you such conformed copies of such of the foregoing opinions, notes, letters
and documents as you reasonably request.
7. Expenses. The Sponsor agrees to pay or
to otherwise cause the payment of the following costs and expenses and all other
costs and expenses incident to the performance by it of its obligations
hereunder: (i) the preparation, printing or reproduction of the Registration
Statement, the Prospectus and each amendment or supplement to any of them, this
Agreement, and each other Basic Document; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Registration Statement, the Prospectus and
all amendments or supplements to, and preliminary versions of, any of them as
may be reasonably requested for use in connection with the offering and sale of
the Notes; (iii) the preparation, printing, authentication, issuance and
delivery of definitive certificates for the Notes; (iv) the printing (or
reproduction) and delivery of this Agreement, the preliminary and supplemental
Blue Sky Memoranda and all other agreements or documents printed (or reproduced)
and delivered in connection with the offering of the Notes; (v) qualification of
the Indenture under the Trust Indenture Act; (vi) the fees and disbursements of
(A) the Company's counsel, (B) the Trustee and its counsel, (C) the Delaware
Trustee and its counsel, (D) the Depository Trust Company in connection with the
book-entry registration of the Notes, (E) [Accountants], accountants for the
Company and issuer of the Comfort Letter; (vii) the fees charged by [S&P],
[Fitch] and [Xxxxx'x] for rating the Notes.
8. Effective Date
of Agreement. This Agreement shall be deemed effective as of the date first
above written upon the execution and delivery hereof by all the parties hereto.
Until such time as this Agreement shall have become effective, it may be
terminated by the Sponsor, by notifying each of the Representatives, or by the
Representatives, by notifying the Sponsor.
Any notice under this Section 8 may be given by
telecopy or telephone but shall be subsequently confirmed by letter.
9. Termination of
Agreement. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, without liability on the part of the
Underwriters to the Sponsor, by notice to the Sponsor, if prior to the Closing
Date (i) trading in securities generally on the New York Stock Exchange,
American Stock Exchange or the Nasdaq National Market shall have been suspended
or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or state
authorities, or (iii) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which is such as to
make it, in the judgment of the Representatives, impracticable or inadvisable to
commence or continue the offering of the Notes on the terms set forth in the
Prospectus, as applicable, or to enforce contracts for the resale of the Notes
by the Underwriters. Notice of such termination may be given to the Sponsor by
telecopy or telephone and shall be subsequently confirmed by letter.
10. Information
Furnished by the Underwriters. The statements set forth in the second,
third, ninth and tenth paragraphs and the second table under the heading "Plan
of Distribution" in the Prospectus Supplement constitute the only information
furnished by or on behalf of the Underwriters as such information is referred to
in Sections 3(b) and 5 hereof.
11. Default by
One of the Underwriters. If any of the Underwriters shall fail on the
Closing Date to purchase the Notes which it is obligated to purchase hereunder
(the "Defaulted Notes"), the remaining Underwriter (the "Non-Defaulting
Underwriter") shall have the right, but not the obligation, within one (1)
Business Day thereafter, to make arrangements to purchase all, but not less than
all, of the Defaulted Notes upon the terms herein set forth; if, however, the
Non-Defaulting Underwriter shall have not completed such arrangements within
such one (1) Business Day period, then this Agreement shall terminate without
liability on the part of the Non-Defaulting Underwriter.
No action taken pursuant to this Section shall
relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not
result in a termination of this Agreement, either the Non-Defaulting
Underwriters or the Sponsor shall have the right to postpone the Closing Date
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or Prospectus or in any other documents or
arrangements.
12. Computational
Materials. (a) It is understood that the Underwriters may prepare and
provide to prospective investors certain Computational Materials (as defined
below) in connection with the Sponsor's offering of the Notes, subject to the
following conditions:
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(i)
The Underwriters shall comply with all applicable laws and regulations in
connection with the use of Computational Materials including the No-Action
Letter of May 20, 1994 issued by the Commission to Xxxxxx, Peabody Acceptance
Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset
Corporation, as made applicable to other issuers and underwriters by the
Commission in response to the request of the Public Securities Association dated
May 24, 1994, and the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (collectively, the "Xxxxxx/PSA
Letters").
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(ii)
As used herein, "Computational Materials" and the
term "ABS Term Sheets" shall have the meanings given such terms in the
Xxxxxx/PSA Letters, but shall include only those Computational Materials that
have been prepared or delivered to prospective investors by or at the direction
of an Underwriter.
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(iii)
Each Underwriter shall provide the Sponsor with
representative forms of all Computational Materials prior to their first use, to
the extent such forms have not previously been approved by the Sponsor for use
by such Underwriter. Each Underwriter shall provide to the Sponsor, for filing
on Form 8-K as provided in Section 12(b), copies of all Computational Materials
that are to be filed with the Commission pursuant to the Xxxxxx/PSA Letters.
Each Underwriter may provide copies of the foregoing in a consolidated or
aggregated form. All Computational Materials described in this subsection
(a)(iii) must be provided to the Sponsor not later than 10:00 A.M., _______
time, one business day before filing thereof is required pursuant to the terms
of this Agreement.
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(iv)
If an Underwriter does not provide the
Computational Materials to the Sponsor pursuant to subsection (a)(iii) above,
such Underwriter shall be deemed to have represented, as of the applicable
Closing Date, that it did not provide any prospective investors with any
information in written or electronic form in connection with the offering of the
Notes that is required to be filed with the Commission in accordance with the
Xxxxxx/PSA Letters.
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(v)
In the event of any delay in the delivery by an
Underwriter to the Sponsor of all Computational Materials required to be
delivered in accordance with subsection (a)(iii) above, the Sponsor shall have
the right to delay the release of the Prospectus to investors or to such
Underwriter, to delay the Closing Date and to take other appropriate actions in
each case as necessary in order to allow the Sponsor to comply with its
agreement set forth in Section 12(b) to file the Computational Materials by the
time specified therein.
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(b)
The Sponsor shall file the Computational Materials (if any) provided to it by
the Underwriter under Section 12(a)(iii) with the Commission pursuant to a
Current Report on Form 8-K no later than 5:30 P.M., New York time, on the date
required pursuant to the Xxxxxx/PSA Letters.
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13. Survival of
Representations and Warranties. The respective indemnities, agreements,
representations, warranties and other statements of the Sponsor or its officers
and of the Underwriters set forth in or made pursuant to this Agreement or
contained in notes of officers of the Sponsor 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 or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment
for the Notes.
14.
Miscellaneous. Except as otherwise provided in Sections 5, 8 and 9
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Sponsor, at 00000 X. Xxxxxxxx
Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: Xxxx Xxxx, and (ii) if
to the Underwriters, to the address of the respective Underwriter set forth
above with a copy to [Name], [Law Firm Name], [Address, City, State Zip
Code].
This Agreement has been and is made solely for the
benefit of the Underwriters, the Sponsor, the Company, their respective
directors, officers, managers, trustees and controlling persons referred to in
Section 5 hereof and their respective successors and assigns, to the extent
provided herein, and no other person shall acquire or have any right under or by
virtue of this Agreement. Neither the term "successor" nor the term "successors
and assigns" as used in this Agreement shall include a purchaser from an
Underwriter of any of the Notes in his status as such purchaser.
15. Applicable
Law; Counterparts. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York without giving effect to the
choice of laws or conflict of laws principles thereof.
This Agreement may be signed in various
counterparts which together constitute one and the same instrument. If signed in
counterparts, this Agreement shall not become effective unless at least one
counterpart hereof or thereof shall have been executed and delivered on behalf
of each party hereto.
Please confirm that the foregoing correctly sets
forth the agreement between the Sponsor and the Underwriters.
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Very truly yours,
COLLEGE LOAN, LLC
By: College Loan Corporation, as sole member
By:
Name: Xxxx Xxxx
Title: Chief Executive Officer |
Confirmed as of the date
first above mentioned.
________________________, acting on behalf of itself and as
Representative of the Underwriters
By: _______________________
Name: ___________________
Title: ___________________
________________________, acting on behalf of itself and as
Representative of the Underwriters
By: _______________________
Name: ___________________
Title: ___________________
SCHEDULE A
---------------- ----------------------------- ---------------------------------------------------------------- ---------
Class of Notes [Underwriter] [Underwriter] [Underwriter] [Underwriter] [Underwriter] [Underwriter] TOTAL
---------------- ----------------------------- ---------------------------------------------------------------- ---------
Class A-1 $ $ $ $ $ $ $
---------------- --------------------------------------------------------------------------------------------------------
Class A-2 $ $ $ $ $ $ $
---------------- --------------------------------------------------------------------------------------------------------
Class A-3 $ $ $ $ $ $ $
---------------- --------------------------------------------------------------------------------------------------------
Class B $ $ $ $ $ $ $
---------------- --------------------------------------------------------------------------------------------------------
Total $ $ $ $ $ $ $
---------------- --------------------------------------------------------------------------------------------------------
Terms of the Notes
-------------------
Class Interest Rate Final Maturity Date Price to Public Underwriting Discount Proceeds to Issuer
----- ------------- ------------------- --------------- --------------------- ------------------
______, 20__ ______% 0.__% $__________
Total __________
