EXHIBIT 1.1
PHEAA STUDENT LOAN TRUST I
$___,000,000
STUDENT LOAN ASSET-BACKED NOTES
(SERIES 2003-1)
UNDERWRITING AGREEMENT
----------
November_____, 2003
_____________________,
as representative of the Underwriters
_______________________________
_______________________________
Ladies and Gentlemen:
PHEAA Student Loan Trust I, a Delaware statutory trust (the "Company"),
proposes to sell to Citigroup (the "Representative") and the other underwriters
listed on Schedule A hereto (collectively with the Representative, the
"Underwriters"), pursuant to the terms of this Underwriting Agreement,
$_____,000,000 aggregate principal amount of its Series 2003-1 Student Loan
Asset-Backed Notes (the "Notes") in the classes and initial principal amounts
set forth on Schedule A hereto. Manufacturers and Traders Trust Company, a New
York corporation, will act as eligible lender trustee (the "Eligible Lender
Trustee") on behalf of the Company. The Notes will be issued under an Indenture
of Trust dated as of ______________, 2003 (the "Master Indenture") between the
Company, the Eligible Lender Trustee and Manufacturers and Traders Trust
Company, a New York corporation, as indenture trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture of Trust (the "Indenture
Supplement" and collectively with the Master Indenture, the "Indenture"). Upon
issuance, the Notes will be secured by, among other things, Financed Student
Loans (as defined in Appendix A to the Master Indenture) pledged to the Trustee
and described in the Prospectus (as defined in Section 3 below). The Financed
Student Loans will be serviced by The Pennsylvania Higher Education Assistance
Agency, a public corporation and government instrumentality ("PHEAA"), pursuant
to a Servicing Agreement dated as of _________, 2003 (the "Servicing
Agreement"), between PHEAA and the Company.
This Agreement, the Master Loan Sale and Contribution Agreement, dated
as of ________, 2003, among PHEAA, the Eligible Lender Trustee and PHEAA Student
Loan Foundation, Inc. (the "Foundation") (along with the related Loan Transfer
Addendum, the "PHEAA Sale Agreement"), the Master Loan Sale Agreement, dated as
of __________, 2003, among the Foundation, the Eligible Lender Trustee and the
Company (along with the related Loan Transfer Addendum, the "Foundation Sale
Agreement" and, collectively with the PHEAA Sale Agreement, the "Sale
Agreements"), the Amended and Restated Trust Agreement, dated as of __________,
2003, between Wachovia Bank of Delaware, National Association, as owner trustee
(the Owner Trustee") and the Foundation, as depositor (the "Trust Agreement"),
the Administration Agreement, dated as of _________, 2003, between PHEAA, as
administrator, and the Company (the "Administration Agreement"), the Servicing
Agreement and the Indenture shall collectively hereinafter be referred to as the
"Basic Documents."
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Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Indenture or the Prospectus (defined below).
The Company proposes, upon the terms and conditions set forth herein, to
sell to each of the Underwriters on the Closing Date (as hereinafter defined)
the aggregate principal amount of each Class of Notes set forth next to the name
of each Underwriter on Schedule A hereto. The Company wishes to confirm as
follows this agreement with the Underwriters in connection with the purchase and
resale of the Notes.
1. Agreements to Sell, Purchase and Resell. (a) The Company
hereby agrees, subject to all the terms and conditions set forth herein, to sell
to each of the Underwriters and, upon the basis of the representations,
warranties and agreements of the Company herein contained and subject to all the
terms and conditions set forth herein, each of the Underwriters, severally and
not jointly, agrees to purchase from the Company, such principal amount of each
Class of the Notes at such respective purchase prices as are set forth next to
the name of such 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
PHEAA, 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, at 12:00, noon,
Eastern time, on November _____, 2003 (the "Closing Date"). The place of such
closing and the Closing Date may be varied by agreement between the
Representative and the Company.
The Notes will be delivered to the Underwriters against payment
of the purchase price therefor to the Company in Federal Funds, by wire transfer
to an account at a bank in the United States designated by the Company, or such
other form of payment as to which the parties may agree. Unless otherwise agreed
to by the Company and the Representative, each Class of Notes will be evidenced
by a single global security in definitive form deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and will be registered in the
name of Cede & Co. as nominee of DTC. The Notes to be delivered to the
Underwriters shall be made available to the Underwriters in Harrisburg,
Pennsylvania, for inspection and packaging not later than 11:30 a.m., Eastern
time, on the business day next preceding the Closing Date.
3. Representations and Warranties of the Company. The
Company, the Foundation, and PHEAA jointly and severally represent and warrant
to each of the Underwriters that:
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(a) A registration statement on Form S-3 (No.
333-102638), 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. "Effective Time" means (x) that if the Foundation has advised
the Representative that it does not propose to amend the Registration Statement,
the date and time as of which the Registration Statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the SEC, or (y) if the
Foundation has advised the Representative that it proposes to file an amendment
or post-effective amendment to the Registration Statement, the date and time as
of which the Registration Statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by the SEC.
"Effective Date" means the date of the Effective Time. 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," the "Prospectus," and the "Prospectus
Supplement" respectively. 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 material 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 material respects
to the requirements of the Act, the Rules and Regulations and the Trust
Indenture Act, and neither of such documents included or will include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the foregoing does not apply to statements in or
omissions from the Registration Statement or the Prospectus based upon written
information furnished to the Company by the Underwriters, specifically for use
therein, or to the Form T-1 filed as an exhibit to the registration statement.
(c) The Commission has not issued and, to the best
knowledge of PHEAA, 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 PHEAA, the Foundation, the
Company or their affiliates for the consummation of the transactions
contemplated by this Agreement shall have been obtained.
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(e) The Master Indenture and the Indenture Supplement
have been duly and validly authorized by the Company and, upon their execution
and delivery by the Company and assuming due authorization, execution and
delivery by the Trustee, will be valid and binding agreements of the Company,
enforceable in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other similar laws affecting creditors'
rights generally and court decisions with respect thereto and to general
principles of equity, and conform in all material respects to the description
thereof in the Prospectus. The Master Indenture has been duly qualified under
the Trust Indenture Act with respect to the Notes.
(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 subject to general principles of equity, and
the Notes will conform in all material respects to the description thereof in
the Prospectus.
(g) The Company is a statutory trust 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 financial condition, business, properties, net worth or
results of operations of the Company.
(h) Other than as contemplated by this Agreement or as
disclosed in the Prospectus, there is no broker, finder or other party that is
entitled to receive from PHEAA, the Foundation, the Company or any of their
affiliates any brokerage or finder's fee or other fee or commission as a result
of any of the transactions contemplated by this Agreement.
(i) There are no legal or governmental proceedings
pending or, to the knowledge of PHEAA, threatened or contemplated against the
Company, or to which the Company or any of its properties is subject, that are
not disclosed in the Prospectus and which, if adversely decided, would
individually or in the aggregate have a material adverse effect on the financial
condition, business, properties or results of operations of the Company, or
would materially and adversely affect the ability of the Company to perform its
obligations under the Basic Documents or otherwise materially affect the
issuance of the Notes or the consummation of the transactions contemplated by
the Basic Documents.
(j) Neither the offer, sale or delivery of the Notes by
the Company nor the execution, delivery or performance of the Basic Documents by
the Company, nor the consummation by the Company of the transactions
contemplated 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, filings or authorizations as shall have been
obtained or made 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 or bylaws of 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 material agreement, indenture, lease or other
instrument to which the Company is a party or by which the Company or any of its
properties may be bound, or violates or will violate in any material respect any
statute, law, regulation or filing or judgment, injunction, order or decree
applicable to the Company or any of its properties, or will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to the terms of any agreement or instrument to
which it is a party or by which it may be bound or to which any of its
properties is subject other than as contemplated by the Basic Documents.
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(k) The Company has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement and the other
Basic Documents to which it is a party; the execution and delivery of, and the
performance by the Company of its obligations under, the Basic Documents to
which it is a party have been duly and validly authorized by the Company and the
Basic Documents have been duly executed and delivered by the Company and
constitute the valid and legally binding agreements of the Company, enforceable
against the Company in accordance with their respective terms, except as the
enforcement hereof and thereof may be limited by bankruptcy, insolvency,
moratorium, fraudulent conveyance or other similar laws relating to or affecting
creditors' rights generally and court decisions with respect thereto and subject
to the applicability of general principles of equity, and except as rights to
indemnity and contribution hereunder and thereunder may be limited by Federal or
state securities laws or principles of public policy.
(l) PHEAA's sale and contribution of Financed Student
Loans to the Foundation and the Foundation's sale and contribution of Financed
Student Loans to the Eligible Lender Trustee on behalf of the Company as of the
applicable sale date described in the Sale Agreements will vest in the Eligible
Lender Trustee on behalf of the Company all of PHEAA's and the Foundation's
right, title and interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
(m) The Company's assignment of the Financed Student
Loans to the Trustee pursuant to the Indenture will vest in the Trustee, for the
benefit of the Noteholders, a first priority perfected security interest
therein, subject to no prior lien, mortgage, security interest, pledge, adverse
claim, charge or other encumbrance.
(n) The Company is not, nor as a result of the issuance
and sale of the Notes as contemplated hereunder will it become, subject to
registration as and "investment company" under the Investment Company Act of
1940, as amended (the "1940 Act").
(o) The Company has not taken and will not 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; it being understood and
agreed that no such action by any Underwriter shall be deemed an action of the
Company.
(p) The representations and warranties made by the
Company in any Basic Document to which the Company is a party and made in any
Officer's Certificate of the Company will be true and correct at the time made
and on and as of the applicable Closing Date.
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(q) PHEAA is a public corporation and an instrumentality
of the Commonwealth of Pennsylvania 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 financial
condition, business, properties, net worth or results of operations of PHEAA.
(r) There are no legal or governmental proceedings
pending or, to the knowledge of PHEAA, threatened or contemplated against PHEAA,
or to which PHEAA 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 financial condition, business,
properties or results of operations of PHEAA, or would materially and adversely
affect the ability of PHEAA to perform its obligations under the Basic Documents
or otherwise materially affect the issuance of the Notes or the consummation of
the transactions contemplated by the Basic Documents.
(s) Neither the execution, delivery or performance of
the Basic Documents by PHEAA, nor the consummation by PHEAA of the transactions
contemplated 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, filings or authorizations as shall have been
obtained or made 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 or bylaws of PHEAA or (ii) conflicts or will conflict
with or constitutes or will constitute a breach of, or a default under, in any
material respect, any material agreement, indenture, lease or other instrument
to which PHEAA is a party or by which PHEAA or any of its 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
PHEAA or any of its properties, or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of PHEAA 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.
(t) PHEAA has all requisite power and authority to
execute, deliver and perform its obligations under the Basic Documents to which
it is a party; the execution and delivery of, and the performance by PHEAA of
its obligations under, the Basic Documents to which it is a party have been duly
and validly authorized by PHEAA and the Basic Documents have been duly executed
and delivered by PHEAA and constitute the valid and legally binding agreements
of PHEAA, enforceable against PHEAA 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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(u) PHEAA has not taken and will not 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; it being understood and agreed that
no such action by any Underwriter shall be deemed an action of the PHEAA.
(v) The representations and warranties made by PHEAA in
any Basic Document to which PHEAA is a party and made in any Officer's
Certificate of PHEAA will be true and correct at the time made and on and as of
the applicable Closing Date.
(w) PHEAA is not, nor as a result of the issuance and
sale of the Notes as contemplated hereunder will it become, subject to
registration as and "investment company" under the 0000 Xxx.
(x) The Foundation is a Pennsylvania nonprofit
corporation 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 financial condition,
business, properties, net worth or results of operations of the Foundation.
(y) There are no legal or governmental proceedings
pending or, to the knowledge of the Foundation, threatened or contemplated
against the Foundation, or to which the Foundation 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 financial condition, business, properties or results of operations of the
Foundation, or would materially and adversely affect the ability of the
Foundation to perform its obligations under the Basic Documents or otherwise
materially affect the issuance of the Notes or the consummation of the
transactions contemplated by the Basic Documents.
(z) Neither the execution, delivery or performance of
the Basic Documents by the Foundation, nor the consummation by the Foundation of
the transactions contemplated 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, filings or authorizations as
shall have been obtained or made 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 or bylaws of the Foundation or (ii) conflicts or
will conflict with or constitutes or will constitute a breach of, or a default
under, in any material respect, any material agreement, indenture, lease or
other instrument to which the Foundation is a party or by which the Foundation
or any of its 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 Foundation or any of its properties, or will
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Foundation 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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(aa) The Foundation has all requisite power and
authority to execute, deliver and perform its obligations under the Basic
Documents to which it is a party; the execution and delivery of, and the
performance by the Foundation of its obligations under, the Basic Documents to
which it is a party have been duly and validly authorized by the Foundation and
the Basic Documents have been duly executed and delivered by the Foundation and
constitute the valid and legally binding agreements of the Foundation,
enforceable against the Foundation 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.
(bb) The Foundation has not taken and will not 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; it being understood and
agreed that no such action by any Underwriter shall be deemed an action of the
Foundation.
(cc) The Foundation is not, nor as a result of the
issuance and sale of the Notes as contemplated hereunder will it become, subject
to registration as and "investment company" under the 1940 Act.
(dd) The representations and warranties made by the
Foundation in any Basic Document to which the Foundation is a party and made in
any Officer's Certificate of the Foundation will be true and correct at the time
made and on and as of the applicable Closing Date.
(ee) The information provided to the Representative
regarding the Financed Student Loans for use by the Representative in connection
with the preparation of the Computational Materials is true and correct.
4. Agreements of the Company. The Company, PHEAA, and the
Foundation jointly and severally agree with each of the Underwriters as follows:
(a) The Company will prepare a supplement to the
Prospectus setting forth the amount of the Notes covered thereby and the terms
thereof not otherwise specified in the Prospectus, the price at which the Notes
are to be purchased by the Underwriters, either the initial public offering
price or the method by which the price at which the Notes are to be sold will be
determined, the selling concessions and reallowances, if any, and such other
information as the Underwriters and the Company deem appropriate in connection
with the offering of the Notes, and the Company will timely file such supplement
to the prospectus with the SEC pursuant to Rule 424(b) under the Act, but the
Company will not file any amendments to the Registration Statement as in effect
with respect to the Notes or any amendments or supplements to the Prospectus,
unless it shall first have delivered copies of such amendments or supplements to
the Underwriters, with reasonable opportunity to comment on such proposed
amendment or supplement or if the Underwriters shall have reasonably objected
thereto promptly after receipt thereof; the Company will immediately advise the
Underwriters or the Underwriters' counsel (i) when notice is received from the
SEC that any post-effective amendment to the Registration Statement has become
or will become effective and (ii) of any order or communication suspending or
preventing, or threatening to suspend or prevent, the offer and sale of the
Notes or of any proceedings or examinations that may lead to such an order or
communication, whether by or of the SEC or any authority administering any state
securities or Blue Sky law, as soon as the Company is advised thereof, and will
use its best efforts to prevent the issuance of any such order or communication
and to obtain as soon as possible its lifting, if issued.
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(b) If, during any time when the Prospectus relating to
the Notes is required to be delivered under the Act, any event occurs as a
result of which the Prospectus, as then amended or supplemented, would include
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any time to
amend or supplement the Prospectus to comply with the Act or the Rules and
Regulations, the Company promptly will notify the Representative 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. Notwithstanding the
foregoing sentence, the Company shall not be required to prepare or file any
such amendment or supplement after 180 days after the date of this Agreement.
Neither the Representative's consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 6 hereof.
(c) The Company will immediately inform the Underwriters
(i) of the receipt by the Company of any communication from the SEC or any state
securities authority concerning the offering or sale of the Notes and (ii) of
the commencement of any lawsuit or proceeding to which the Company is a party
relating to the offering or sale of the Notes.
(d) Prior to 180 days after the date of this Agreement,
the Company will furnish to the Underwriters, without charge, copies of the
Registration Statement (including all documents and exhibits thereto or
incorporated by reference therein), the Prospectus, and all amendments and
supplements to such documents relating to the Notes, in each case in such
quantities as the Underwriters may reasonably request.
(e) During the period commencing on the Closing Date and
ending 180 days thereafter, no amendment or supplement relating to or affecting
the Notes will be made to the Registration Statement or Prospectus unless the
Representative shall have previously been advised thereof and the Representative
shall not have reasonably objected thereto after being so advised.
(f) The Company will cooperate with the Underwriters and
with their counsel in connection with the qualification of, or procurement of
exemptions with respect to, the Notes for offering and sale by the Underwriters
and by dealers under the securities or Blue Sky laws of such jurisdictions as
the Underwriters may designate and will file such consents to service of process
or other documents necessary or appropriate in order to effect such
qualification or exemptions; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that 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 Company consents to the use, in accordance with
the securities or Blue Sky laws of such jurisdictions in which the Notes are
offered by the Underwriters and by dealers, of the Prospectus furnished by the
Company.
(h) To the extent, if any, that the rating or ratings
provided with respect to the Notes by the rating agency or agencies that
initially rate the Notes is conditional upon the furnishing of documents or the
taking of any other reasonable actions by the Company, the Company shall cause
to be furnished such documents and such other actions to be taken.
(i) For two years after the date of this Agreement , the
Company will furnish to the Underwriters (i) as soon as available, a copy of
each document relating to the Notes required to be filed with the SEC pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any
order of the SEC thereunder, and (ii) such other information concerning the
Company as the Underwriters may reasonably 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 Representative terminating this Agreement
pursuant to Section 8 or Section 9 hereof) or if this Agreement shall be
terminated by the Representative because of any failure or refusal on the part
of the Company to comply with the terms or fulfill any of the conditions of this
Agreement, the Company and PHEAA agree to reimburse the Underwriters for all
out-of-pocket expenses (including reasonable fees and expenses of their counsel)
reasonably incurred by it in connection herewith, but without any further
obligation on the part of the Company for loss of profits or otherwise.
(k) The net proceeds from the sale of the Notes
hereunder will be applied substantially in accordance with the description set
forth in the Prospectus.
(l) Except as stated in this Agreement and in the
Prospectus, the Company has not taken, nor will it take, directly or indirectly,
any action designed to or that might reasonably be expected to cause or result
in stabilization or manipulation of the price of the Notes to facilitate the
sale or resale of the Notes.
(m) Until the later of (x) two years after the date of
this Agreement, and (y) the date that the Representative ceases to act as a
market maker for the Notes, the Company will deliver to you the annual
statements of compliance and the annual independent certified public
accountants' reports furnished to the Trustee or the Company pursuant to the
Servicing Agreement as soon as such statements and reports are furnished to the
Trustee or the Company.
(n) On or before the Closing Date, the Company shall
xxxx its accounting and other records, if any, relating to the Financed Student
Loans and shall cause the Servicer, PHEAA and the Foundation to xxxx their
respective computer records relating to the Financed Student Loans to show the
absolute ownership by the Eligible Lender Trustee, as eligible lender of, and
the interest of the Company in, the initial Financed Student Loans, and from and
after each Closing Date the Company will take, or cause the Servicer, PHEAA and
the Foundation to take, as the case may be, such actions with respect to the
respective records of each with regard to any additional acquired Student Loans
at the time of the acquisition thereof by the Eligible Lender Trustee on behalf
of the Company, and the Company shall not take, or shall permit any other person
to take, any action inconsistent with the ownership of, and the interest of the
Company in, the Financed Student Loans, other than as permitted by the Basic
Documents.
10
(o) For the period beginning on the date of this
Agreement and ending 90 days hereafter, neither the Company nor the Foundation
will, without the prior written consent of the Underwriters, offer to sell or
sell notes or certificates collateralized by FFELP Loans (other than the Notes)
similar to the Notes; provided, however, that this shall not be construed to
prevent the sale of FFELP Loans by the Company or the Foundation. For the period
beginning on the date of this Agreement and ending 90 days hereafter, PHEAA will
not offer to sell or sell notes or certificates (other than the Notes) that are
issued by a trust created by PHEAA or any of its affiliates and that are
collateralized by FFELP Loans.
(p) If, at the time the Registration Statement became
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A under the 1933 Act, then, immediately following the execution of this
Agreement, the Company will prepare, and file or transmit for filing with the
Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act,
copies of an amended Prospectus containing all information so omitted.
(q) As soon as practicable, but not later than 16 months
after the date of this Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the Registration
Statement, (ii) the effective date of the most recent post-effective amendment
to the Registration Statement to become effective prior to the date of this
Agreement and (iii) the date of the Company's most recent Annual Report or Form
10-K filed with the Commission prior to the date of this Agreement, which will
satisfy the provisions of Section 11(a) of the Act.
5. Indemnification and Contribution. (a) The Company, the
Foundation, and, to the extent permitted by law, PHEAA agree 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 (if used within the period set forth in
Section 4(b) hereof), 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 (i) has been made therein or omitted therefrom in reliance upon and in
conformity with the information furnished in writing to the Company by the
Representative expressly for use therein, it being understood that the only such
information furnished by the Representative consists of the information
described as such in Section 10 of this Agreement, or (ii) is contained in or
omitted from the Computational Materials; provided, however, that the
indemnification contained in this paragraph (a) with respect to any preliminary
prospectus shall not inure to the benefit of an Underwriter (or to the benefit
of any person controlling an Underwriter) on account of any such loss, claim,
damage, liability or expense arising from the sale of the of Notes by an
Underwriter to any person if the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such preliminary
prospectus was corrected in the final Prospectus and such Underwriter sold Notes
to that person without sending or giving at or prior to the written confirmation
of such sale, a copy of the final Prospectus (as then amended or supplemented
but excluding documents incorporated by reference therein) if the Company has
previously furnished sufficient copies thereof to such Underwriter. The
foregoing indemnity agreement shall be in addition to any liability which the
Company may otherwise have.
11
(b) If any action, suit or proceeding shall be brought
against an Underwriter or any person controlling an Underwriter in respect of
which indemnity may be sought against the Company, such Underwriter or such
controlling person shall promptly notify the parties against whom
indemnification is being sought (the "indemnifying parties"), but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party except to the extent that the indemnifying
party is materially prejudiced by such omission. 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 reasonably
satisfactory to such indemnified 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 failed to
assume the defense and employ counsel, or (ii) 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 all Underwriters
and controlling persons, 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.
12
(c) Each Underwriter, severally and not jointly, agrees
to indemnify and hold harmless PHEAA, the Company and the Foundation and their
respective directors and officers, and any person who controls the Company or
the Foundation within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, to the same extent as the indemnity from the Company and the
Foundation to the Underwriters set forth in paragraph (a) hereof, but only with
respect to (i) information furnished in writing by the Representative 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 the Representative
consists of the information described as such in Section 10 of this Agreement,
or (ii) information contained in or omitted from the Computational Materials. If
any action, suit or proceeding shall be brought against the Company, any of its
directors or officers, or any such controlling person based on the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus or any Computational Materials and in respect of
which indemnity may be sought against an Underwriter pursuant to this paragraph
(c), such Underwriter shall have the rights and duties given to the Company by
paragraph (b) above (except that if the Company shall have assumed the defense
thereof the Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees and
expenses of such counsel shall be at such Underwriter's expense), and the
Company, its directors and officers, and any such controlling person shall have
the rights and duties given to the Underwriters by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which the
Underwriters may otherwise have. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to indemnification from any person who was not guilty of such
misrepresentation.
(d) If the indemnification provided for in this Section
5 is unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the applicable Underwriter on the other hand from
the offering of the Notes, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the applicable
Underwriter on the other in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company on the one hand and an Underwriter on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering of the
Notes (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriter. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or by an Underwriter on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
13
(e) The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 5 were
determined by a pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in paragraph
(d) above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in paragraph (d)
above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 5, no Underwriter
shall be required to contribute any amount in excess of the underwriting
discount and commissions applicable to the Notes purchased by such Underwriter
under this Agreement. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this paragraph (e) to contribute are several in
proportion to their respective underwriting obligation.
(f) Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or contribution
under this Section 5 shall be paid by the indemnifying party to the indemnified
party as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 5 and the
representations and warranties of the Company and the Underwriters set forth in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of the Underwriters, the Company
or any person controlling any of them or their respective directors or officers,
(ii) acceptance of any Notes and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to the Underwriters, the Company or
any person controlling any of them or their respective directors or officers,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 5.
6. Conditions of the Underwriters' Obligations. The
obligations of the Underwriters to purchase the Notes hereunder are subject to
the following conditions precedent:
(a) The accuracy of and compliance with the
representations, warranties and covenants of the Company, PHEAA, and the
Foundation contained herein, in each case as of the date of this Agreement and
as of the Closing Date.
(b) The performance by the Company of its obligations to
be performed hereunder or under the Indenture at or prior to the Closing.
(c) All actions required to be taken and all filings
required to be made by the Company under the Act prior to the sale of the Notes
shall have been duly taken or made. At and prior to the Closing Date, no stop
order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Underwriters, shall be contemplated by the
Commission.
(d) All actions required to be taken and all filings
required to be made by the Foundation or PHEAA under the Act prior to the sale
of the Notes shall have been duly taken or made.
14
(e) Since the respective dates as of which information
is given in the Registration Statement (or any amendment or supplement thereto),
except as may otherwise be stated therein or contemplated thereby, there shall
not have occurred (i) any material change, or any development or event involving
a prospective material change, in or affecting the financial condition,
business, properties, net worth, or results of operations of the Company, PHEAA,
the Foundation, or the Servicer not contemplated by the Registration Statement,
which in the opinion of the Representative, would materially adversely affect
the market for the Notes, (ii) any downgrading in the rating of any debt
securities of the Company, PHEAA, the Foundation, or the Servicer by any
nationally recognized statistical rating organization or any public announcement
that any such organization has under surveillance or review its rating of any
debt securities of the Company, PHEAA, the Foundation, or the Servicer (other
than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating), (iii) any event or
development which makes any statement made in the Registration Statement or
Prospectus untrue or which, in the opinion of the Company and its counsel or the
Underwriters and their counsel, requires the filing of any amendment to or
change in the Registration Statement or Prospectus in order to state a material
fact required by any law to be stated therein or necessary in order to make the
statements therein not misleading, if amending or supplementing the Registration
Statement or Prospectus to reflect such event or development would, in the
opinion of the Representative, materially adversely affect the market for the
Notes, or (iv) the enactment of legislation by the Congress of the United
States, the publication of a decision by a court of the United States or the Tax
Court of the United States, or the official publication of a ruling, regulation,
proposed regulation or official statement by or on behalf of the Treasury
Department of the United States, the Internal Revenue Service or any other
governmental agency with respect to federal taxation upon revenues or other
income of the general character expected to be pledged under the Indenture or
upon interest received on securities of the general character of the Notes, or
which would have the effect of changing, directly or indirectly, the federal
income tax consequences of interest on securities of the general character of
the Notes in the hands of the holders thereof, which in the reasonable opinion
of counsel to the Representative materially affects the market price of the
Notes, or (v) the enactment of legislation by the State of Delaware or the
Commonwealth of Pennsylvania, or the publication of a decision by a court of
competent jurisdiction or any administrative tribunal of the State of Delaware
or the Commonwealth of Pennsylvania or other governmental agency or department
thereof, with respect to the taxation by the State of Delaware or the
Commonwealth of Pennsylvania or any of their political subdivisions upon
revenues or other income of the general character expected to be pledged under
the Indenture, or which would have the effect of changing, directly or
indirectly, the tax consequences under the State of Delaware or the Commonwealth
of Pennsylvania tax law of interest on securities of the general character of
the Notes in the hands of the holders thereof, which in the reasonable opinion
of counsel to the Representatives materially affects the market price of the
Notes.
(f) You shall have received an opinion addressed to you
of Xxxxxxx & Xxx, P.C., or other counsel satisfactory to you, dated the Closing
Date, in the form attached hereto as Exhibit A.
(g) You shall have received an opinion addressed to you
of Xxxxxxx & Xxx, P.C. in its capacity as counsel for the Company, dated the
Closing Date, in form and substance satisfactory to you and your counsel to the
effect that the statements in the Prospectus under the headings "U.S. Federal
Income Tax Considerations" 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.
15
(h) You shall have received an opinion addressed to you
of Xxxxxx Xxxxxxx & Xxxxxxx, in its capacity as Underwriter's Counsel, dated the
Closing Date, in form and substance satisfactory to you.
(i) You shall have received an opinion addressed to you
of Xxxxxxx & Xxx, P.C. in its capacity as counsel to PHEAA and the Foundation,
dated the Closing Date in the Form of Exhibit B attached hereto.
(j) You shall have received an opinion addressed to you
of Xxxxxxxx, Xxxxxx & Finger, P. A., in its capacity as counsel to the Owner
Trustee, dated the Closing Date and in form and substance reasonably
satisfactory to you and your counsel.
(k) You shall have received an opinion addressed to you
from counsel to the Eligible Lender Trustee, dated the Closing Date and in form
and substance reasonably satisfactory to you and your counsel.
(l) You shall have received an opinion addressed to you
of counsel to the Trustee, dated the Closing Date and in form and substance
reasonably satisfactory to you and your counsel, to the effect that:
(i) The Trustee is a corporation duly organized
and validly existing under the laws of the State of New York.
(ii) The Trustee has the full corporate trust
power to accept the office of indenture trustee under the Indenture and
to enter into and perform its obligations under the Indenture, any
Custodian Agreement and any Auction Agency Agreement.
(iii) The execution and delivery of each of the
Indenture, any Custodian Agreements and any Auction Agency Agreement,
and the performance by the Trustee of its obligations under the
Indenture, any Custodian Agreements, and any Auction Agency Agreement,
have been duly authorized by all necessary action of the Trustee and
each has been duly executed and delivered by the Trustee.
(iv) The Indenture, any Custodian Agreements,
and any Auction Agency Agreement constitute valid and binding
obligations of the Trustee enforceable against the Trustee.
(v) The execution and delivery by the Trustee of
the Indenture, any Custodian Agreement, and any Auction Agency Agreement
do not require any consent, approval or authorization of, or any
registration or filing with, any state or United States governmental
authority.
(vi) Neither the consummation by the Trustee of
the transactions contemplated in the Indenture, any Custodian
Agreements, and any Auction Agency Agreement nor the fulfillment of the
terms thereof by the Trustee will conflict with, result in a breach or
violation of, or constitute a default under any law or the charter,
by-laws or other organizational documents of the Trustee or the terms of
any indenture or other agreement or instrument known to such counsel and
to which the Trustee or any of its subsidiaries is a party or is bound
or any judgment, order or decree known to such counsel to be applicable
to the Trustee or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Trustee or any of its subsidiaries.
16
(m) You shall have received certificates addressed to
you dated the Closing Date of any two of the Chairman of the Board, the
President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the principal financial
officer or the principal accounting officer of PHEAA, the Foundation and the
Servicer in which such officers, without personal liability, shall state that,
to the best of their knowledge after reasonable investigation, (i) the
representations and warranties of PHEAA, the Foundation or the Servicer, as the
case may be, contained in the respective Sale Agreement and the Servicing
Agreement, as applicable, are true and correct in all material respects, that
each of PHEAA, the Foundation and the Servicer has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied under such
agreements at or prior to the Closing Date, (ii) that they have reviewed the
Prospectus and that the information therein regarding PHEAA, the Foundation or
the Servicer, as applicable, does not contain any misstatement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading , and (iii) since the date set forth in such certificate, except as
may be disclosed in the Prospectus, no material adverse change in or affecting
the business or properties of PHEAA, the Foundation or the Servicer, as
applicable, has occurred.
(n) 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 (i) the Secretary of State of the State of Delaware
reflecting the grant of the security interest by the Company in the Financed
Student Loans and the proceeds thereof to the Trustee, and (ii) the Secretary of
State of the Commonwealth of Pennsylvania reflecting the transfer of the
Financed Student Loans from PHEAA to the Company and from the Company to the
Foundation.
(o) The Underwriters shall have received on the Closing
Date from KPMG LLP a letter dated the Closing Date, and in form and substance
satisfactory to the Representative, to the effect that they have carried out
certain specified procedures, not constituting an audit, with respect to certain
information regarding the Financed Student Loans and setting forth the results
of such specified procedures (a "Comfort Letter").
(p) All the representations and warranties of the
Company contained in the Basic Documents shall be true and correct in all
material respects on and as of the date hereof and on and as of the Closing Date
as if made on and as of the Closing Date and the Underwriters shall have
received a certificate, dated the Closing Date and signed by an executive
officer of the Foundation, without personal liability, to the effect set forth
in this Section 6(p).
(q) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at or
prior to the Closing Date.
(r) The Underwriters shall have received by instrument
dated the Closing Date (at the option of the Representative), 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.
17
(s) Fitch Ratings ("Fitch"), Xxxxx'x Investors Services,
Inc. ("Moody's"), and Standard & Poor's Ratings Service, a division of The
XxXxxx-Xxxx Companies ("S&P"), shall have rated (1) the Class A Notes "AAA",
"Aaa", and "AAA", respectively, and rated the Class B Notes at least "A", "A2",
and "A", respectively, and there shall not have been any announcement by any of
Fitch, Moody's or S&P that (i) it is downgrading any of its ratings assigned to
the Notes or (ii) it is reviewing its ratings assigned to the Notes with a view
to possible downgrading, or with negative implications, or direction not
determined.
(t) You shall have received evidence satisfactory to you
of the completion of all actions necessary to effect the transfer of the
Financed Student Loans as described in the Prospectus and the recordation
thereof on PHEAA's, the Company's, the Servicer's, and the Foundation's computer
systems.
(u) You shall have received certificates addressed to
you dated the Closing Date from officers of the Foundation, without personal
liability, addressing such additional matters as you may reasonably request in
form and substance satisfactory to you and your counsel.
(v) You shall have received specimens of the Notes and a
copy of the written order of the Company to the Indenture Trustee to
authenticate and deliver the Notes.
(w) You shall have received an executed copy of each of
the Basic Documents.
(x) You shall have received copies of such other
opinions, certificates and documents as are required under the Indenture as a
condition to the issuance of the Notes.
(y) You shall have received a ratings letter from each
of Fitch, Moody's, and S&P setting forth the ratings required under Section 6(s)
hereof.
(z) You shall have received an opinion of counsel to
each Guarantor of the Financed Student Loans in form and substance reasonably
satisfactory to the Representative.
(aa) You shall have received a certificate of each
Guarantor of the Financed Student Loans and signed by an officer of the
Guarantor in form and substance reasonably satisfactory to the Representative.
The Company will provide or cause to be provided to you
such conformed copies of such of the foregoing opinions, notes, letters and
documents as you reasonably request.
7. Expenses. The Company agrees to pay or to otherwise
cause the payment of the following costs and expenses and all other costs and
expenses incident to the performance by it of its obligations hereunder: (i) the
preparation 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 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 the preliminary and supplemental Blue Sky
Memoranda; (v) qualification of the Indenture under the Trust Indenture Act;
(vi) the qualification of the Notes for offer and sale under the securities or
Blue Sky laws of the several states as provided in Section 4(f) hereof
(including the reasonable fees, expenses and disbursements of counsel relating
to the preparation, printing or reproduction, and delivery of the preliminary
and supplemental Blue Sky Memoranda and such qualification); (vii) the fees and
disbursements of (A) the Company's counsel, (B) the 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 Notes, (E) the SEC and (F)
KPMG LLP, accountants for the Company and issuer of the Comfort Letter described
in Section 6(o); and (viii) the fees charged by S&P, Fitch and Xxxxx'x for
rating the Notes.
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8. Effective Date of Agreement. This Agreement shall be
deemed effective as of the date first above written upon the execution and
delivery hereof by all the parties hereto. Until such time as this Agreement
shall have become effective, it may be terminated by the Company, by notifying
the Representative, or by the Representative, by notifying the Company.
Any notice under this Section 8 may be given by telecopy
or telephone but shall be subsequently confirmed by letter.
9. Termination of Agreement. This Agreement shall be
subject to termination in the absolute discretion of the Representative, without
liability on the part of the Underwriters to the Company, by notice to the
Company, if prior to the Closing Date (i) trading in securities generally on the
New York Stock Exchange, American Stock Exchange or the Nasdaq National Market
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or state authorities, or (iii) there shall have occurred any outbreak or
escalation of hostilities or other international or domestic calamity, crisis or
change in political, financial or economic conditions, the effect of which on
the financial markets of the United States is such as to make it, in the
judgment of the Representative, impracticable or inadvisable to commence or
continue the offering of the Notes on the terms set forth in the Prospectus, as
applicable, or to enforce contracts for the resale of the Notes by the
Underwriters. Notice of such termination may be given to the Company by telecopy
or telephone and shall be subsequently confirmed by letter.
10. Information Furnished by the Underwriters. The
statements set forth under the heading "Plan of Distribution" in the Prospectus
Supplement and the penultimate paragraph over the names of the Underwriters on
the cover (page 1) of 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. [Reserved].
12. Computational Materials. (a) It is understood that the
Underwriters may prepare and provide to prospective investors certain
Computational Materials (as defined below) in connection with the Company's
offering of the Notes, subject to the following conditions:
19
(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").
(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.
(iii) Each Underwriter shall provide the Company
with representative forms of all Computational Materials prior to their
first use, to the extent such forms have not previously been approved by
the Company for use by such Underwriter. Each Underwriter shall provide
to the Company, for filing on Form 8-K as provided in Section 16(b),
copies (in electronic form) 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 Company not later than 12:00
p.m., New York City 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 the Company pursuant to subsection (a)(iii)
above, such Underwriter shall be deemed to have represented, as of the
applicable Closing Date, that it did not provide any prospective
investors with any information in written or electronic form in
connection with the offering of the Notes that is required to be filed
with the Commission in accordance with the Xxxxxx/PSA Letters.
(v) In the event of any delay in the delivery by
an Underwriter to the Company of all Computational Materials required to
be delivered in accordance with subsection (a)(iii) above, the Company
shall have the right to delay the release of the Prospectus to investors
or to such Underwriter, to delay the Closing Date and to take other
appropriate actions in each case as necessary in order to allow the
Company to comply with its agreement set forth in Section 16(b) to file
the Computational Materials by the time specified therein.
(b) The Company shall file the Computational Materials
(if any) provided to it by the Underwriter under Section 16(a)(iii) with the
Commission pursuant to a Current Report on Form 8-K no later than 5:30 P.M., New
York City time, on the date required pursuant to the Xxxxxx/PSA Letters.
(c) Each Underwriter represents and warrants to the
Company that the Computational Materials provided by it to any investor and to
the Company do not contain any misleading statement or omit to state any
material fact necessary to make the Computational Materials not misleading.
20
13. Survival of Representations and Warranties. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the Underwriters set forth in
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, the Company 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 Company, at 0000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000, Attention: Xxxxxxx Xxxxxxxx ( with a
copy to Xxxxxxx X. Xxxxx, Xxxxxxx & Xxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxx 19603), and (ii) if to the Underwriters, to Citigroup, 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
Xxxxxx.
This Agreement has been and is made solely for the
benefit of the Underwriters, the Company, their respective directors, officers,
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. Assignment. This Agreement cannot be assigned by the
Company or the Underwriters without the written consent of the Company and each
Underwriter.
16. Severability. If any provision of this Agreement shall
be held or deemed to be or shall, in fact, be inoperative, invalid or
unenforceable as applied in any particular case in any jurisdiction because it
conflicts with any provisions of any constitution, statute, rule of public
policy, or for any other reason, such circumstances shall not have the effect of
rendering the provision in question or inoperable or unenforceable in any other
case or circumstance, or of rendering any other provision or provisions of this
Agreement invalid, inoperative or unenforceable to any extent whatever.
17. 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.
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Please confirm that the foregoing correctly sets forth
the agreement between the Company, PHEAA, the Foundation and the Underwriters.
Very truly yours,
PHEAA Student Loan Trust I
By The Pennsylvania Higher Education
Assistance Agency, as Administrator
By:
-------------------------------------
Name:
Title:
The Pennsylvania Higher Education
Assistance Agency
By
-------------------------------------
Name:
Title:
PHEAA Student Loan Foundation, Inc.
By
-------------------------------------
Name:
Title:
Confirmed as of the date first above mentioned.
________________________________________________,
acting on behalf of itself and as Representative
of the Underwriters
By:
--------------------------------------
Name:
Title:
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SCHEDULE A
NOTES UNDERWRITER PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC DISCOUNT ISSUER
Class A-1 100%
Class A-2 100%
Class A-3 100%
Class A-4 100%
Class B-1 100%
Total 100%
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