EXHIBIT 1.1
EXECUTION COPY
$715,100,000
THE NATIONAL COLLEGIATE STUDENT LOAN TRUST 2004-1
STUDENT LOAN ASSET BACKED NOTES
CONSISTING OF
$189,000,000 CLASS A-1
$342,100,000 CLASS A-2
$105,000,000 CLASS A-3
$ 39,500,000 CLASS B-1
$ 39,500,000 CLASS B-2
UNDERWRITING AGREEMENT
June 7, 2004
UBS Securities LLC Deutsche Bank Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Floor 00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc. Xxxxxxx, Xxxxx & Co.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx 00 Xxxxx Xx.
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The National Collegiate Funding LLC, a Delaware limited liability
company ("National Collegiate Funding"), proposes to cause The National
Collegiate Student Loan Trust 2004-1, a Delaware statutory trust (the "Issuer"),
to sell to UBS Securities LLC, Deutsche Bank Securities Inc., Citigroup Global
Markets Inc. and Xxxxxxx, Xxxxx & Co. (each an "Underwriter" and collectively,
the "Underwriters"), pursuant to the terms of this Underwriting Agreement (this
"Agreement"), $715,100,000 aggregate principal amount of its Student Loan Asset
Backed Notes (the "Offered Notes") in the classes and aggregate principal or
notional amounts set forth on SCHEDULE A hereto. The Issuer will also issue the
Class A-4 Notes, Class A-IO-1 Notes and Class A-IO-2 Notes (collectively, the
"Non-Offered Notes" and together with the Offered Notes, the "Notes") which are
not being offered for sale hereby. The Notes will be issued under an Indenture,
dated as of June 1, 2004 (the "Indenture"), between the Issuer and U.S. Bank
National Association, a national banking association, as indenture trustee (the
"Trustee"). Upon issuance, the Notes will be secured by, among other things,
Financed Student Loans (as defined in the
Indenture) pledged to the Trustee. The Financed Student Loans will be serviced
by The Pennsylvania Higher Education Assistance Agency ("PHEAA") and one or more
additional third party servicers (each, a "Servicer" and collectively, the
"Servicers") pursuant to the servicing agreements listed on SCHEDULE B hereto
(collectively, the "Servicing Agreements"), which servicing agreements will be
assigned to the Issuer by The First Marblehead Corporation ("FMC"), as of June
10, 2004.
This Agreement, along with (i) the note purchase agreements between
each Loan Originator and National Collegiate Funding, as listed on SCHEDULE C
hereto (collectively, the "Student Loan Purchase Agreement"), (ii) the Servicing
Agreements, (iii) the Indenture, (iv) the Administration Agreement dated as of
June 10, 2004 among National Collegiate Funding, the Issuer, First Marblehead
Data Services, Inc., Wachovia Trust Company, National Association (the "Owner
Trustee") and the Trustee, (v) the Deposit and Sale Agreement dated as of June
10, 2004 (the "Deposit and Sale Agreement") between National Collegiate Funding
and the Issuer and (vi) the Trust Agreement dated as of June 1, 2004 (the "Trust
Agreement"), among National Collegiate Funding, as Depositor, and XXXX, as
Owners, and Wachovia Trust Company, National Association, as Owner Trustee, are
collectively 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 (as defined below).
National Collegiate Funding proposes to cause the Issuer, upon the
terms and conditions set forth herein, to sell to the Underwriters on the
Closing Date (as hereinafter defined) the aggregate principal amount of each
Class of Notes, at the percentages set forth for each such Class, set forth on
SCHEDULE A hereto.
National Collegiate Funding wishes to confirm as follows this Agreement
with the Underwriters in connection with the purchase of the Notes.
1. AGREEMENTS TO SELL, PURCHASE AND RESELL. (a) National Collegiate
Funding hereby agrees, subject to all the terms and conditions set forth herein,
to cause the Issuer to sell to the Underwriters and, upon the basis of the
representations, warranties and agreements of National Collegiate Funding herein
contained and subject to all the terms and conditions set forth herein, each
Underwriter, severally and not jointly, agrees to purchase from the Issuer, such
principal amount of the Offered Notes set forth next to the name of such
Underwriter on SCHEDULE A hereto at such respective purchase prices as are set
forth on SCHEDULE A hereto.
(b) It is understood that the Underwriters propose to offer
the Offered 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 Offered Notes shall be made at the office of
Xxxxxxx Xxxxxxxx & Xxxx LLP, Two World Financial Center, New York, NY 10281 at
10:00 a.m, on June 10, 2004 (the "Closing Date"). The place of such closing and
the Closing Date may be varied by agreement between the Underwriters and the
Issuer.
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The Offered Notes will be delivered to the Underwriters against payment
of the purchase price therefor to the Issuer in Federal Funds, by wire transfer
to an account at a bank acceptable to the Underwriters, or such other form of
payment as to which the parties may agree. Unless otherwise agreed to by
National Collegiate Funding and the Underwriters, each Class of Offered 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 Offered 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 Offered Notes to be delivered to the
Underwriters shall be made available to the Underwriters in New York, New York,
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 NATIONAL COLLEGIATE FUNDING. (A)
National Collegiate Funding represents and warrants to each of the Underwriters
that:
(a) A registration statement on Form S-3 (No 333-113336),
including a prospectus and such amendments thereto as may have been required to
the date hereof, relating to the Offered 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 Offered 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;
(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
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or the Prospectus based upon written information furnished to National
Collegiate Funding by the Underwriters, specifically for use therein.
(c) The Commission has not issued and, to the best knowledge
of National Collegiate Funding, is not threatening to issue any order preventing
or suspending the use of the Registration Statement.
(d) As of the Closing Date, each consent, approval,
authorization or order of, or filing with, any court or governmental agency or
body which is required to be obtained or made by National Collegiate Funding or
its affiliates for the consummation of the transactions contemplated by this
Agreement shall have been obtained, except as otherwise provided in the Basic
Documents.
(e) The Indenture has been duly and validly authorized by
National Collegiate Funding and, upon its execution and delivery by the Issuer
and assuming due authorization, execution and delivery by the Trustee, will be a
valid and binding agreement of the Issuer, 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.
(f) The Notes have been duly authorized by the Issuer and the
Offered Notes to be issued on the Closing Date, when executed by the Issuer 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 Issuer 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 Offered Notes will conform in all
material respects to the description thereof in the Prospectus.
(g) National Collegiate Funding is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Delaware with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and 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
National Collegiate Funding.
(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 National Collegiate Funding or any of its affiliates
any brokerage or finder's fee or other fee or commission as a result of any of
the transactions contemplated by this Agreement.
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(i) There are no legal or governmental proceedings pending or
threatened or, to the knowledge of National Collegiate Funding contemplated,
against National Collegiate Funding, or to which National Collegiate Funding 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 National Collegiate Funding, or would
materially and adversely affect the ability of National Collegiate Funding, or
the Issuer to perform its obligations under this Agreement and the other Basic
Documents or otherwise materially affect the issuance of the Notes or the
consummation of the transactions contemplated hereby or by the Basic Documents.
(j) Neither the offer, sale or delivery of the Notes by the
Issuer nor the execution, delivery or performance of this Agreement or the other
Basic Documents by National Collegiate Funding or the Issuer, nor the
consummation by National Collegiate Funding or the Issuer 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 National Collegiate Funding or the Issuer 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 National Collegiate Funding or the Issuer is a party
or by which National Collegiate Funding or the Issuer 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 National Collegiate Funding or the Issuer 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 National Collegiate Funding or the
Issuer pursuant to the terms of any agreement or instrument to which it is a
party or by which it may be bound or to which any of its properties is subject
other than as contemplated by the Basic Documents.
(k) National Collegiate Funding has all requisite power and
authority to execute, deliver and perform its obligations under this Agreement
and the other Basic Documents to which it is a party; the execution and delivery
of, and the performance by National Collegiate Funding of its obligations under,
this Agreement and the other Basic Documents to which it is a party have been
duly and validly authorized by National Collegiate Funding and this Agreement
and the other Basic Documents have been duly executed and delivered by National
Collegiate Funding and constitute the valid and legally binding agreements of
National Collegiate Funding, enforceable against National Collegiate Funding in
accordance with their respective terms, except as the enforcement hereof and
thereof may be limited by bankruptcy, insolvency, moratorium, fraudulent
conveyance or other similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto and subject to the
applicability of general principles of equity, and except as rights to indemnity
and contribution hereunder and thereunder may be limited by Federal or state
securities laws or principles of public policy.
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(l) National Collegiate Funding's assignment and delivery of
Financed Student Loans to the order of the Owner Trustee on behalf of the Issuer
pursuant to the Deposit and Sale Agreement will vest in the Owner Trustee on
behalf of Issuer all of National Collegiate Funding's right, title and interest
therein, subject to no prior lien, mortgage, security interest, pledge, adverse
claim, charge or other encumbrance.
(m) The Issuer 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.
(n) The representations and warranties made by National
Collegiate Funding in any Basic Document to which National Collegiate Funding is
a party and made in any Officer's Certificate of the Issuer will be true and
correct at the time made and on and as of the applicable Closing Date.
(o) 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, National Collegiate
Funding has occurred.
(B) Each Underwriter represents and warrants to, and agrees with
National Collegiate Funding, as to itself that:
(a) it has not offered or sold and will not offer or sell any
notes to persons in the United Kingdom prior to the expiration of the period of
six months from the issue date of the notes except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments, as principal or agent, for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, as amended;
(b) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or inducement
to engage in investment activity, within the meaning of section 21 of the
Financial Services and Markets Act 2000, received by it in connection with the
issue or sale of any notes in circumstances in which section 21(1) of the
Financial Services and Markets Act 2000 does not apply to the trust; and
(c) it has complied and will comply with all applicable
provisions of the Financial Services and Markets Act 2000 with respect to
anything done by it in relation to the notes in, from or otherwise involving the
United Kingdom.
4. AGREEMENTS OF NATIONAL COLLEGIATE FUNDING. National Collegiate
Funding agrees with each of the Underwriters as follows:
(a) National Collegiate Funding will prepare a supplement to
the Prospectus setting forth the amount of the Offered Notes covered thereby and
the terms thereof not otherwise specified in the Prospectus, the price at which
the Offered Notes are to be purchased by the Underwriters, either the initial
public offering price or the method by which the price at
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which the Offered Notes are to be sold will be determined, the selling
concessions and reallowances, if any, and such other information as the
Underwriters and National Collegiate Funding deem appropriate in connection with
the offering of the Offered Notes, and National Collegiate Funding will timely
file such supplement to the prospectus with the SEC pursuant to Rule 424(b)
under the Act, but National Collegiate Funding will not file any amendments to
the Registration Statement as in effect with respect to the Offered 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; National Collegiate Funding 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 Offered 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 National Collegiate Funding is advised thereof, and
will use its best efforts to prevent the issuance of any such order or
communication and to obtain as soon as possible its lifting, if issued.
(b) If, at any time when the Prospectus relating to the
Offered 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,
National Collegiate Funding promptly will notify each of the Underwriters of
such event and will promptly prepare and file with the SEC, at its own expense,
an amendment or supplement to such Prospectus that will correct such statement
or omission or an amendment that will effect such compliance. Neither the
Underwriters' consent to, nor the Underwriters' delivery of, any such amendment
or supplement shall constitute a waiver of any of the conditions set forth in
Section 6 hereof.
(c) National Collegiate Funding will immediately inform the
Underwriters (i) of the receipt by National Collegiate Funding 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 National Collegiate Funding is a party relating to the
offering or sale of the Notes.
(d) National Collegiate Funding will furnish to the
Underwriters, without charge, copies of the Registration Statement (including
all documents and exhibits thereto or incorporated by reference therein), the
Prospectus, and all amendments and supplements to such documents relating to the
Offered Notes, in each case in such quantities as the Underwriters may
reasonably request.
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(e) No amendment or supplement will be made to the
Registration Statement or Prospectus which the Underwriters shall not previously
have been advised or to which it shall reasonably object after being so advised.
(f) National Collegiate Funding will cooperate with the
Underwriters and with their counsel in connection with the qualification of, or
procurement of exemptions with respect to, the Offered 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
National Collegiate Funding be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Offered Notes, in any jurisdiction where it is not now
so subject.
(g) National Collegiate Funding consents to the use, in
accordance with the securities or Blue Sky laws of such jurisdictions in which
the Offered Notes are offered by the Underwriters and by dealers, of the
Prospectus furnished by National Collegiate Funding.
(h) To the extent, if any, that the rating or ratings provided
with respect to the Notes by the rating agency or agencies that initially rate
the Notes is conditional upon the furnishing of documents or the taking of any
other actions by National Collegiate Funding, National Collegiate Funding shall
cause to be furnished such documents and such other actions to be taken.
(i) So long as any of the Offered Notes are outstanding,
National Collegiate Funding will furnish to the Underwriters (i) as soon as
available, a copy of each document relating to the Offered 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 National Collegiate Funding as the Underwriters may
request from time to time.
(j) If this Agreement shall terminate or shall be terminated
after execution and delivery pursuant to any provisions hereof (otherwise than
by notice given by the Underwriters terminating this Agreement pursuant to
Section 8 or Section 9 hereof) or if this Agreement shall be terminated by the
Underwriters because of any failure or refusal on the part of National
Collegiate Funding to comply with the terms or fulfill any of the conditions of
this Agreement, National Collegiate Funding 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 National Collegiate Funding for loss of profits or
otherwise.
(k) The net proceeds from the sale of the Offered Notes
hereunder will be applied substantially in accordance with the description set
forth in the Prospectus.
(l) Except as stated in this Agreement and in the Prospectus,
National Collegiate Funding has not taken, nor will it take, directly or
indirectly, any action designed to or
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that might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Offered Notes to facilitate the sale or resale
of the Offered Notes.
(m) For a period from the date of this Agreement until the
retirement of the Offered Notes, the Issuer will deliver to you the annual
statements of compliance and the annual independent certified public
accountants' reports furnished to the Trustee or National Collegiate Funding
pursuant to the Servicing Agreements as soon as such statements and reports are
furnished to the Trustee or National Collegiate Funding.
(n) On or before the Closing Date, National Collegiate Funding
shall mark its accounting and other records, if any, relating to the Financed
Student Loans and shall cause the applicable Servicer to mark its computer
records relating to the Financed Student Loans to show the absolute ownership by
the Owner Trustee, of, and the interest of the Issuer in, the Financed Student
Loans, and National Collegiate Funding shall not take, or shall not permit any
other person to take, any action inconsistent with the ownership of, and the
interest of the Issuer in, the Financed Student Loans, other than as permitted
by the Basic Documents.
(o) If, at the time the Registration Statement became
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A under the Act, then, immediately following the execution of this
Agreement, National Collegiate Funding will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A and Rule 424(b)
under the Act, copies of an amended Prospectus containing all information so
omitted.
(p) As soon as practicable, but not later than 16 months after
the date of this Agreement, National Collegiate Funding will make generally
available to its securityholders an earnings statement covering a period of at
least 12 months beginning after the later of (i) the effective date of the
Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective prior
to the date of this Agreement and (iii) the date of the Issuer's most recent
Annual Report or Form 10-K filed with the Commission prior to the date of this
Agreement, which will satisfy the provisions of Section 11(a) of the Act.
5. INDEMNIFICATION AND CONTRIBUTION. (a) National Collegiate Funding
agrees to indemnify and hold harmless each of the Underwriters and each person,
if any, who controls an Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and expenses (or actions in respect thereof) arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Prospectus, 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
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an Underwriter furnished in writing to National Collegiate Funding by such
Underwriter 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 Offered 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
Offered 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 National Collegiate Funding has previously furnished sufficient
copies thereof to such Underwriter at a time reasonably prior to the date such
Offered Notes are sold to such person. The foregoing indemnity agreement shall
be in addition to any liability which National Collegiate Funding may otherwise
have.
(b) If any action, suit or proceeding shall be brought against
an Underwriter or any person controlling an Underwriter in respect of which
indemnity may be sought against National Collegiate Funding, such Underwriter or
such controlling person shall promptly notify the parties against whom
indemnification is being sought (the "indemnifying parties"), but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party under Sections 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 National
Collegiate Funding from any liability which it may otherwise have. In case any
such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party). The applicable Underwriter or any such controlling person shall have the
right to employ separate counsel in any such 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
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counsel) at any time for each Underwriter and controlling persons not having
actual or potential differing interests with such Underwriter or among
themselves, which firm shall be designated in writing by such Underwriter, and
that all such fees and expenses shall be reimbursed on a monthly basis as
provided in paragraph (a) hereof. An indemnifying party will not, without the
prior written consent of the indemnified party, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii) does
not include a statement as to, or an admission of fault, culpability or a
failure to act by or on behalf of an indemnified party.
(c) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless National Collegiate Funding and each of its
directors and officers, and any person who controls National Collegiate Funding
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
to the same extent as the indemnity from National Collegiate Funding to the
Underwriters set forth in paragraph (a) hereof, but only with respect to
information relating to such Underwriter furnished in writing by such
Underwriter expressly for use in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus
therein, it being understood that the only such information furnished by any
Underwriter consists of the information described as such in Section 10 of this
Agreement. If any action, suit or proceeding shall be brought against National
Collegiate Funding, 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 National
Collegiate Funding by paragraph (b) above (except that if National Collegiate
Funding shall have assumed the defense thereof the Underwriter shall have the
option to assume such defense but shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof, but the fees
and expenses of such counsel shall be at such Underwriter's expense), and
National Collegiate Funding, its directors and officers, and any such
controlling person shall have the rights and duties given to the Underwriters by
paragraph (b) above. The foregoing indemnity agreement shall be in addition to
any liability which the Underwriters may otherwise have.
(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
National Collegiate Funding on the one hand and the applicable Underwriter on
the other hand from the offering of the Offered 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 National Collegiate
Funding on the one hand and the applicable Underwriter on the other in
connection with the statements or omissions that resulted in such
-11-
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by National Collegiate
Funding on the one hand and an Underwriter on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering of the Offered
Notes (before deducting expenses) received by the Issuer bear to the total
underwriting discounts and commissions received by such Underwriter. The
relative fault of National Collegiate Funding on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by National Collegiate Funding on the one hand or by an Underwriter on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) National Collegiate Funding 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 Offered 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 FMC and the Underwriters. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this paragraph (e) to
contribute are several in proportion to their respective underwriting
obligations.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 5 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 5 and the
representations and warranties of National Collegiate Funding and the
Underwriters set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Underwriters, National Collegiate Funding or any person controlling any of
them or their respective directors or officers, (ii) acceptance of any Offered
Notes and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to the Underwriters, National Collegiate Funding or any
person controlling any of them or their respective directors or officers, shall
be entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 5.
-12-
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder to purchase the Offered Notes shall be subject to the
accuracy of the representations and warranties on the part of National
Collegiate Funding contained herein as of the date hereof and as of the Closing
Date, to the accuracy of the statements of National Collegiate Funding made in
any certificates delivered pursuant to the provisions hereof, to the performance
by National Collegiate Funding of its obligations hereunder and to the following
additional conditions:
(a) All actions required to be taken and all filings required
to be made by National Collegiate Funding under the Act prior to the sale of the
Offered 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 National Collegiate Funding or the
Underwriters, shall be contemplated by the Commission.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development or event involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of National Collegiate
Funding, each Servicer or FMC not contemplated by the Registration Statement,
which in the opinion of the Underwriters, would materially adversely affect the
market for the Offered Notes, (ii) any downgrading in the rating of any debt
securities of trusts sponsored by National Collegiate Funding, each Servicer or
FMC 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 National Collegiate
Funding, each Servicer or FMC (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 National Collegiate Funding and its counsel or the Underwriters
and their counsel, requires the filing of any amendment to or change in the
Registration Statement or Prospectus in order to state a material fact required
by any law to be stated therein or necessary in order to make the statements
therein not misleading, if amending or supplementing the Registration Statement
or Prospectus to reflect such event or development would, in the opinion of the
Underwriters, materially adversely affect the market for the Offered Notes.
(c) The Administrator shall have delivered to you a
certificate, signed by an authorized signatory and dated the Closing Date, to
the effect that the signer of such certificate has carefully examined the Basic
Documents and the Prospectus and that to the best of such signer's knowledge:
(x) the representations and warranties in the Basic Documents of the Issuer are
true and correct in all material respects at and as of the Closing Date with the
same effect as if made on the Closing Date and (y) the Issuer has complied with
all the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date.
(d) National Collegiate shall have delivered to you a
certificate, signed by an authorized signatory and dated the Closing Date, to
the effect that the signer of such certificate has carefully examined the Basic
Documents and the Prospectus and that to the best of such
-13-
xxxxxx's knowledge: (x) the representations and warranties in the Basic
Documents of National Collegiate are true and correct in all material respects
at and as of the Closing Date with the same effect as if made on the Closing
Date and (y) National Collegiate has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date.
(e) You shall have received opinions addressed to you of
Xxxxxxx Xxxxxxxx & Xxxx LLP and Xxxx & Xxxx LLP, in their capacity as counsel to
the Issuer, FMC, National Collegiate Funding and the Administrator, dated the
Closing Date, in form and substance satisfactory to you and your counsel with
respect to the status of the Issuer, FMC and the Administrator, to each of the
Basic Documents to which FMC, the Administrator and the Issuer 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 opinions addressed to you of
Xxxxxxx Xxxxxxxx & Xxxx LLP in form and substance satisfactory to you and your
counsel, concerning "true sale", "first perfected security interest" and
"non-consolidation", and certain other issues with respect to the transfer of
the Financed Student Loans from the Loan Originator to National Collegiate
Funding, from National Collegiate Funding to the Issuer and from the Issuer to
the Trustee.
(f) You shall have received an opinion addressed to you of
Xxxxxxx Xxxxxxxx & Xxxx LLP, 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 "U.S. 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.
(g) You shall have received an opinion addressed to you of
Xxxxxxx Xxxxxxxx & Xxxx LLP, 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.
(h) You shall have received from Xxxxxxx Xxxxxxxx & Xxxx LLP,
a favorable opinion in form reasonably satisfactory to you and dated the Closing
Date:
(i) 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;
(ii) to the effect that no consent, approval,
authorization, order, registration or qualification of or with any
court or governmental agency or body of the United States is required
for the issuance of the Notes and the sale of the Offered Notes to you,
or the consummation by the Issuer of the other transactions
contemplated by the Basic Documents.
(iii) to the effect that nothing has come to their attention in the course of
their examination of the Prospectus or in their discussions or
otherwise which would lead them to believe that the Prospectus (except
as to financial or statistical data contained therein and the
information set forth under the headings "The Servicers", "The Student
Loan Guarantor" and "Underwriting") contained an untrue statement of a
-14-
material fact or omitted to state a material fact necessary in order to
make the Prospectus not misleading.
(i) You shall have received an opinion addressed to you of
Stroock & Stroock & Xxxxx LLP, in its capacity as your counsel, dated the
Closing Date, in form and substance satisfactory to you.
(j) You shall have received an opinion addressed to you of
Xxxxxxxx, Xxxxxx and Xxxxxx, P.A., counsel to the Owner Trustee, in form and
substance satisfactory to you and your counsel.
(k) You shall have received an opinion addressed to you of
in-house counsel to PHEAA, in form and substance satisfactory to you and your
counsel.
(l) You shall have received an opinion addressed to you of
in-house counsel to XXXX, in form and substance satisfactory to you and your
counsel.
(m) You shall have received an opinion addressed to you of
Xxxxx Xxxxxxx, LLP, counsel to the Trustee, dated the Closing Date and in form
and substance satisfactory to you and your counsel.
(n) You shall have received certificates addressed to you
dated the Closing Date of any one of the Chairman of the Board, the President,
any Executive Vice President, Senior Vice President or Vice President, the
Treasurer, any Assistant Treasurer, the principal financial officer or the
principal accounting officer of each of PHEAA and XXXX in which such officer
shall state that, to the best of such officer's knowledge after reasonable
investigation, that such officer has reviewed the Prospectus and that the
information therein regarding PHEAA, or XXXX, as applicable, is fair and
accurate in all material respects.
(o) You shall have received evidence satisfactory to you that
within ten days of the Closing Date UCC-1 financing statements will be filed in
the office of the Secretary of State of the State of Delaware and the
Commonwealth of Massachusetts, reflecting the grant of the security interest by
the Issuer in the Financed Student Loans and the proceeds thereof to the
Trustee.
(p) All the representations and warranties of the Issuer, FMC,
National Collegiate Funding and the Administrator contained in this Agreement
and the Basic Documents shall be true and correct in all material respects on
and as of the date hereof and on and as of the Closing Date as if made on and as
of the Closing Date and the Underwriters shall have received a certificate,
dated the Closing Date and signed by an executive officer of FMC, National
Collegiate Funding and the Administrator to such effect.
(q) The Issuer 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.
-15-
(r) (i) The Class A Notes shall be rated in the highest rating
category of the following rating agencies: Fitch, Inc. ("Fitch"), Standard &
Poor's Ratings Services, a Division of the XxXxxx-Xxxx Companies, Inc. ("S&P)
and Xxxxx'x Investors Service, Inc. ("Xxxxx'x") (each of Fitch, S&P and Xxxxx'x,
a "Rating Agency" and collectively, the "Rating Agencies"), and (ii) the Class B
Notes shall be rated in one of the three highest rating categories of the Rating
Agencies.
(s) You shall have received certificates dated the Closing
Date from officers of FMC, National Collegiate Funding and the Administrator
addressing such additional matters as you may reasonably request in form and
substance satisfactory to you and your counsel.
(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 Offered Notes.
(u) You shall have received from each of the Servicers an
officer's certificate in form and substance satisfactory to you and your
counsel.
(v) You shall have received a signed Indemnity Agreement from
FMC in form and substance satisfactory to you and your counsel.
(w) You shall have received from PricewaterhouseCoopers LLP,
accountants to National Collegiate Funding, a letter dated the Closing Date, and
in form and substance satisfactory to the Underwriters, to the effect that they
have carried out certain specified procedures, not constituting an audit, with
respect to certain information in the Prospectus regarding the Financed Student
Loans and setting forth the results of such specified procedures.
(x) You shall have received from PricewaterhouseCoopers LLP,
accountants to XXXX, a letter dated the Closing Date, and in form and substance
satisfactory to the Underwriters, to the effect that they have carried out
certain specified procedures, not constituting an audit, with respect to certain
information in the Prospectus regarding the unaudited financial information of
XXXX and setting forth the results of such specified procedures.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if National Collegiate Funding is in breach of any covenants or agreements
contained herein or if any of the opinions and certificates referred to above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to you and your counsel, this Agreement and
all your obligations hereunder may be canceled by you at, or at any time prior
to, the Closing Date without liability of any party to any other party except as
provided in Section 9(b). Notice of such cancellation shall be given to the
Issuer in writing, or by telephone or facsimile transmission confirmed in
writing.
The obligation of National Collegiate Funding to cause the Issuer to
sell the Offered Notes to you shall be subject to: (i) the accuracy of your
representations and warranties herein contained at and as of the Closing Date
and (ii) your performance of all your obligations hereunder to be performed at
or prior to the Closing Date.
-16-
7. EXPENSES. National Collegiate Funding agrees to pay or to otherwise
cause the payment of the following costs and expenses and all other costs and
expenses incident to the performance by it of its obligations hereunder: (i) the
preparation, printing or reproduction of the Registration Statement, the
Prospectus 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 Offered Notes;
(iii) the preparation, printing, authentication, issuance and delivery of
definitive certificates for the Offered 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 Offered Notes; (v)
qualification of the Indenture under the Trust Indenture Act; (vi) the fees and
disbursements of (A) the Issuer's counsel, (B) the Trustee and its counsel, (C)
the Owner Trustee and its counsel, (D) the Depository Trust Company in
connection with the book-entry registration of the Offered Notes, (E) KPMG LLP
and PricewaterhouseCoopers LLP; and (vii) the fees charged by S&P, Fitch and
Moody's for rating the Notes.
8. EFFECTIVE DATE OF AGREEMENT. This Agreement shall be deemed
effective as of the date first above written upon the execution and delivery
hereof by all the parties hereto. Until such time as this Agreement shall have
become effective, it may be terminated by National Collegiate Funding, by
notifying each of the Underwriters, or by the Underwriters, by notifying
National Collegiate Funding.
Any notice under this Section 8 may be given by telecopy or telephone
but shall be subsequently confirmed by letter.
9. TERMINATION. (a) This Agreement shall be subject to termination in
the Underwriters' absolute discretion by notice given to National Collegiate
Funding prior to delivery of and payment for the Offered Notes, if prior to such
time, (i) there shall have occurred any adverse change, or any development
involving a prospective adverse change, in or affecting particularly the
business, assets or properties of National Collegiate, the Issuer, or any of
their affiliates; (ii) trading of securities generally on the New York Stock
Exchange or the American Stock Exchange shall have been suspended or materially
limited; (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States; or (iv) there shall have occurred any material
outbreak or declaration of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
your judgment, impracticable to market the Offered Notes.
(b) If the sale of the Offered Notes shall not be consummated
because any condition to your obligations set forth in Section 6 is not
satisfied or because of any refusal, inability or failure on the part of
National Collegiate Funding to perform any agreement herein or comply with any
provision hereof other than by reason of your default, National Collegiate
Funding shall reimburse you for the reasonable fees and expenses of your counsel
and for such
-17-
other out-of-pocket expenses as shall have been incurred by you in connection
with this Agreement and the proposed purchase of the Offered Notes, and upon
demand National Collegiate Funding shall pay the full amount thereof to you.
(c) This Agreement will survive delivery of and payment for
the Offered Notes. The provisions of Section 5 and this Section 9(c) shall
survive the termination or cancellation of this Agreement.
10. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth
in the table and the second, third and fourth paragraphs under the heading
"Underwriting" 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(A)(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 Offered Notes which it is
obligated to purchase hereunder (the "Defaulted Notes"), the remaining
Underwriters (the "Non-Defaulting Underwriters") shall have the right, but not
the obligation, within one (1) Business Day thereafter, to make arrangements to
purchase all, but not less than all, of the Defaulted Notes upon the terms
herein set forth; if, however, the Non-Defaulting Underwriters shall have not
completed such arrangements within such one (1) Business Day period, then this
Agreement shall terminate without liability on the part of the Non-Defaulting
Underwriters.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Non-Defaulting Underwriters or National Collegiate
Funding shall have the right to postpone the Closing Date for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements.
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 National Collegiate Funding's offering of
the Offered Notes, subject to the following conditions:
(i) The Underwriters shall comply with all applicable
laws and regulations in connection with the use of Computational
Materials including the No-Action Letter of May 20, 1994 issued by the
Commission to Xxxxxx, Xxxxxxx 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").
(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
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shall include only those Computational Materials that have been
prepared or delivered to prospective investors by or at the direction
of an Underwriter.
(iii) Each Underwriter shall provide National
Collegiate Funding with representative forms of all Computational
Materials prior to their first use, to the extent such forms have not
previously been approved by National Collegiate Funding for use by such
Underwriter. Each Underwriter shall provide to National Collegiate
Funding, 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 National Collegiate Funding not later than 10:00 A.M.,
Eastern time, one business day before filing thereof is required
pursuant to the terms of this Agreement.
(iv) If an Underwriter does not provide the
Computational Materials to National Collegiate Funding 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 Offered Notes that is
required to be filed with the Commission in accordance with the
Xxxxxx/PSA Letters.
(v) In the event of any delay in the delivery by an
Underwriter to National Collegiate Funding of all Computational
Materials required to be delivered in accordance with subsection
(a)(iii) above, National Collegiate Funding 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 National Collegiate
Funding to comply with its agreement set forth in Section 12(b) to file
the Computational Materials by the time specified therein.
(d) National Collegiate Funding shall file the Computational
Materials (if any) provided to it by the Underwriters 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.
13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The respective
indemnities, agreements, representations, warranties and other statements of
National Collegiate Funding or its officers and of the Underwriters set forth in
or made pursuant to this Agreement 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, National Collegiate Funding or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered 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 National Collegiate Funding, at The
Prudential Tower, 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
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02199-8157, Attention: Controller; with a copy to First Marblehead Corporation,
The Prudential Tower, 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000-0000 Attn: Xxxxxxx X. Xxxxxxx, (ii) if to FMC, at The Prudential Tower,
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-8157, Attention:
Controller; with a copy to First Marblehead Corporation, The Prudential Tower,
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000 Attn: Xxxxxxx
X. Xxxxxxx, and (iii) if to the Underwriters, to the address of the respective
Underwriter set forth above with a copy to Xxxxxxx X. Xxxxx, Stroock & Stroock &
Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
This Agreement has been and is made solely for the benefit of the
Underwriters, National Collegiate Funding, the Issuer, 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 Offered Notes in his status as such purchaser.
15. APPLICABLE LAW; COUNTERPARTS. This Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made to be performed within the State of New York without giving
effect to choice of laws or conflict of laws principles thereof.
This Agreement may be executed in any number of counterparts, each of
which shall for all purposes be deemed to be an original and all of which shall
together constitute but one and the same instrument.
[Signature pages follow]
-20-
Please confirm the foregoing correctly sets forth the agreement between
National Collegiate Funding and the Underwriters.
Very truly yours,
THE NATIONAL COLLEGIATE FUNDING LLC
By: GATE Holdings, Inc.,
as sole Member
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Confirmed as of the date first above mentioned:
UBS SECURITIES LLC DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxx XxXxxxxx By: /s/ Xxxx Xxxxxxxx
----------------- -----------------
Name: Xxxx XxXxxxxx Name: Xxxx Xxxxxxxx
Title: Executive Director Title: Director
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------ -------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxx X. Xxxxxx
Title: Director Title: Vice President
CITIGROUP GLOBAL MARKETS INC. XXXXXXX, XXXXX & CO.
By: /s/ Xxxx Xxx By: /s/ Xxxxxxx, Xxxxx & Co.
------------------- ------------------------
Name: Xxxx Xxx Name:
Title: Director Title:
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Accepted and Agreed as to Section 5:
THE FIRST MARBLEHEAD CORPORATION
By: /s/ Xxxx X. Xxxxxx
------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
-22-
SCHEDULE A
Floating Rate Notes
-----------------------------------------------------------------------------------
Price
Class A-1 Notes Class A-2 Notes Class A-3 Notes (percentage
(by principal (by principal (by principal of principal
Underwriter amount) amount) amount) amount of Notes)
----------- -----------------------------------------------------------------------------------
UBS Securities LLC $ 89,795,799 $162,535,146 $ 49,886,555 99.675%
Deutsche Bank Securities Inc. 67,511,567 122,199,508 37,506,425 99.675%
Citigroup Global Markets Inc. 15,846,317 28,682,673 8,803,510 99.675%
Xxxxxxx, Xxxxx & Co. 15,846,317 28,682,673 8,803,510 99.675%
--------------------------------------------------------------------------------------------------------------------------
Total $189,000,000 $342,100,000 $105,000,000 99.675%
--------------------------------------------------------------------------------------------------------------------------
Auction Rate Notes
-------------------------------------------------------------------
Price (percentage
Class B-1 Notes Class B-2 Notes of principal
Underwriter (by principal amount) (by principal amount) amount of Notes)
----------- -------------------------------------------------------------------
UBS Securities LLC $39,500,000 0 99.590%
Deutsche Bank Securities Inc. 0 $39,500,000 99.590%
Citigroup Global Markets Inc. 0 0 --
Xxxxxxx, Xxxxx & Co. 0 0 --
-----------------------------------------------------------------------------------------------------
Total $39,500,000 $39,500,000 99.590%
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SCHEDULE B
LIST OF SERVICING AGREEMENTS
1. Alternative Servicing Agreement dated October 16, 2001, as amended,
between The Pennsylvania Higher Education Assistance Agency and The
First Marblehead Corporation.
2. Non-FFELP Loan Servicing Agreement dated as of May 1, 2003 between
Great Lakes Educational Loan Services, Inc. and The First Marblehead
Corporation.
3. Loan Servicing Agreement dated August 1, 2001, as amended, between
Nelnet, Inc. (formerly known as Nelnet Loan Services, Inc.) and The
First Marblehead Corporation.
SCHEDULE C
LIST OF STUDENT LOAN PURCHASE AGREEMENTS
Each Student Loan Purchase Agreement, as amended or supplemented, in connection
with each of the loan programs listed below, entered into between each of the
loan originators listed below and The First Marblehead Corporation as follows:
1. Bank One, N.A.
2. Charter One Bank, N.A.
3. Bank of America, N.A.
4. Chase Manhattan Bank USA, N.A.
5. Citizens Bank of Rhode Island
6. First National Bank Northeast
7. GMAC Bank
8. HSBC Bank USA
9. The Huntington National Bank
10. National City Bank
11. Sun Trust Bank
