College Loan Corporation Trust I
$1,300,000,000
Student Loan Asset-Backed Notes
Series 2004-1
UNDERWRITING AGREEMENT
May 11, 2004
UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 |
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
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RBC Xxxx Xxxxxxxx Inc.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 |
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 |
Ladies and Gentlemen:
College Loan Corporation Trust I, a Delaware statutory trust (the
“Company”), proposes to sell to UBS Securities LLC, Citigroup Global
Markets Inc., RBC Xxxx Xxxxxxxx Inc. and Xxxxxxx, Xxxxx & Co. (the
“Underwriters”), pursuant to the terms of this Underwriting Agreement
(this “Agreement”), $1,300,000,000 aggregate principal amount of the
Company’s Student Loan Asset-Backed Notes, Series 2004-1 (together,
the “Series 2004-1 Notes”) in the classes and initial principal
amounts set forth on Schedule A hereto. Deutsche Bank Trust Company
Americas, a New York banking corporation, will act as eligible lender trustee on
behalf of the Company (the “Eligible Lender Trustee”). The
Series 2004-1 Notes will be issued under an Amended and Restated Indenture
of Trust, dated as of October 1, 2003 (as previously supplemented and
amended, the “Base Indenture”), and a related Fifth Supplemental
Indenture of Trust, dated as of May 1, 2004 (collectively with the Base
Indenture, the “Indenture”) among the Company, the Eligible Lender
Trustee and Deutsche Bank Trust Company Americas, a New York banking
corporation, as indenture trustee (the “Trustee”). Upon issuance, the
Series 2004-1 Notes will be secured by, among other things, Financed
Student Loans (as defined in the Indenture) pledged to the Trustee and described
in the Prospectus (as defined in Section 3 below). The Financed Student
Loans will initially be serviced by ACS Education Services, Inc.
(“ACS”) (formerly known as AFSA Data Corporation), Great Lakes
Educational Loan Services, Inc. (“GLELSI”), Nelnet, Inc.
(“Nelnet”) and Pennsylvania Higher Education Assistance Agency
(“PHEAA”) (each a “Servicer” and collectively, the
“Servicers”) pursuant to separate servicing agreements (each a
“Servicing Agreement” and collectively, the “Servicing
Agreements”), between the applicable Servicer and the Company.
Certain of the Financed Student Loans were and will be originated by Bank One,
National Association, as eligible lender trustee (the “College Loan
Eligible Lender Trustee”) for College Loan Corporation (“College
Loan”), a California corporation, and the transferor to the Company. The
Financed Student Loans so originated will be sold to the Eligible Lender Trustee
(as legal owner) and the Company (as beneficial owner) pursuant to an Amended
and Restated FFELP Loan Purchase Agreement dated as of June 1, 2002 (the
“Student Loan Purchase Agreement”) among College Loan, the College
Loan Eligible Lender Trustee, the Company and the Eligible Lender
Trustee.
Administrative services for the Company will be performed by College Loan (in
its capacity as administrator, the “Administrator”) pursuant to an
Administration Agreement dated as of March 1, 2002 (the
“Administration Agreement”) among the Company, Wilmington Trust
Company, as Delaware Trustee (the “Delaware Trustee”), the Trustee,
the Eligible Lender Trustee and the Administrator.
This
Agreement, the Indenture, the Student Loan Purchase Agreement, the Servicing
Agreements, the Administration Agreement, the Custody Agreements among the
applicable Servicer, the Issuer, the Eligible Lender Trustee and the Trustee,
the Amended and Restated Trust Agreement, dated as of March 1, 2002,
between College Loan Special Purpose Corporation (“SPC”) and the
Delaware Trustee and the FFELP Loan Purchase Agreement, dated as of
October 1, 2003 (the “Warehouse Student Loan Purchase
Agreement”), among College Loan Warehouse LLC (the “Warehouse
Seller”), Bank One, National Association, as eligible lender trustee for
the Warehouse Seller, College Loan and the College Loan Eligible Lender Trustee,
are collectively referred to herein as the “Basic Documents.”
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Indenture or the Prospectus.
The Company wishes to confirm as follows this Agreement with the Underwriters in
connection with the purchase and resale of the Series 2004-1
Notes.
1. Agreements To Sell, Purchase and Resell.
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(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 Series of the Series 2004-1 Notes at such respective
purchase prices as are set forth next to the name of each Underwriter on
Schedules A and B hereto. For the period form the Closing Date (as defined in
Section 2 hereof) through the end of the initial Auction Period, the Class B-1
Notes shall bear interest at a rate, not to exceed 4.00% per annum, to be agreed
to by the Company and Xxxxxxx, Xxxxx & Co. |
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(b) It is understood that the Underwriters propose to offer the Series 2004-1
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 Series 2004-1 Notes shall be made at the office of Stroock &
Stroock & Xxxxx LLP, at 10:00 a.m., Eastern Time, on May 20, 2004 (the "Closing
Date"). The place of such closing and the Closing Date may be varied by
agreement between the Underwriters and the Company.
The Series 2004-1 Notes will be delivered to the Underwriters against
payment of the purchase price therefor to the Company in Federal Funds, by wire
transfer to an account at a bank acceptable to the Underwriters, or such other
form of payment as to which the parties may agree. Unless otherwise agreed to by
the Company and the Underwriters, each Series of Series 2004-1 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 Series of Series 2004-1
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 Series 2004-1 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., New York City time,
on the business day next preceding the Closing Date.
3. Representations and Warranties of the Company. The Company represents and
warrants to each of the Underwriters that:
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(a) A registration statement on Form S-3 (No. 333-102791), including a
prospectus and such amendments thereto as may have been required to the date
hereof, relating to the Series 2004-1 Notes and the offering thereof from time
to time in accordance with Rule 415 under the Securities Act of 1933, as amended
(the "Securities 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 Series 2004-1 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 Securities Act, the information
deemed to be a part thereof pursuant to Rule 430A(b) under the Securities Act,
and the information incorporated by reference therein) are respectively referred
to herein as the "Registration Statement" and the "Prospectus" respectively; and
the conditions to the use of a registration statement on Form S-3 under the
Securities Act, as set forth in the General Instructions to Form S-3, and the
conditions of Rule 415 under the Securities Act, have been satisfied with
respect to the Registration Statement.
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(b) On the effective date of the Registration Statement, the Registration
Statement and the Prospectus conformed in all respects to the requirements of
the Securities 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 Securities 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 Securities 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.
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(c) The Commission has not issued and, to the best knowledge of the Company, is
not threatening to issue any order preventing or suspending the use of the
Registration Statement.
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(d) As of the Closing Date, each consent, approval, authorization or order of,
or filing with, any court or governmental agency or body which is required to be
obtained or made by the Company or its affiliates for the consummation of the
transactions contemplated by this Agreement shall have been obtained, except as
otherwise provided in the Basic Documents.
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(e) The Indenture has been duly and validly authorized by the Company and, upon
its execution and delivery by the Company and assuming due authorization,
execution and delivery by the Trustee, will be a valid and binding agreement of
the Company, enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights generally and conform in all material respects to the
description thereof in the Prospectus. The Indenture has been duly qualified
under the Trust Indenture Act with respect to the Series 2004-1 Notes.
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(f) The Series 2004-1 Notes have been duly authorized by the Company and the
Series 2004-1 Notes to be issued on the Closing Date, when executed by the
Company and authenticated by the Trustee in accordance with the Indenture, and
delivered to the Underwriters against payment therefor in accordance with the
terms hereof, will have been validly issued and delivered, and will constitute
valid and binding obligations of the Company entitled to the benefits of the
Indenture and enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, moratorium, fraudulent
conveyance or other similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto, and the Series 2004-1 Notes
will conform in all material respects to the description thereof in the
Prospectus.
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(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
condition (financial or other), business, prospects, properties, net worth or
results of operations of the Company.
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(h) Other than as contemplated by this Agreement or as disclosed in the
Prospectus, there is no broker, finder or other party that is entitled to
receive from the Company or any of its affiliates any brokerage or finder's fee
or other fee or commission as a result of any of the transactions contemplated
by this Agreement.
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(i) There are no legal or governmental proceedings pending or threatened or, to
the knowledge of the Company contemplated, against the Company, or to which the
Company or any of its properties is subject, that are not disclosed in the
Prospectus and which, if adversely decided, would individually or in the
aggregate have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company, or would
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement and the other Basic Documents or otherwise
materially affect the issuance of the Series 2004-1 Notes or the consummation of
the transactions contemplated hereby or by the Basic Documents.
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(j) Neither the offer, sale or delivery of the Series 2004-1 Notes by the
Company nor the execution, delivery or performance of this Agreement or the
Basic Documents by the Company, nor the consummation by the Company of the
transactions contemplated hereby or thereby (i) requires or will require any
consent, approval, authorization or other order of, or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official (except for compliance with the securities or Blue Sky
laws of various jurisdictions, the qualification of the Indenture under the
Trust Indenture Act and such other consents, approvals or authorizations as
shall have been obtained prior to the Closing Date) or conflicts or will
conflict with or constitutes or will constitute a breach of, or a default under,
the organizational documents of the Company; or (ii) conflicts or will conflict
with or constitutes or will constitute a breach of, or a default under, in any
material respect, any agreement, indenture, lease or other instrument to which
the Company is a party or by which the Company or any of its respective
properties may be bound, or violates or will violate in any material respect any
statute, law, regulation or filing or judgment, injunction, order or decree
applicable to the Company or any of its respective properties, or will result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to the terms of any agreement or instrument to
which it is a party or by which it may be bound or to which any of its
properties is subject other than as contemplated by the Basic Documents.
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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 this Agreement and the other Basic Documents to
which it is a party have been duly and validly authorized by the Company and
this Agreement and the other Basic Documents have been duly executed and
delivered by the Company and constitute the valid and legally binding agreements
of the Company, enforceable against the Company in accordance with their
respective terms, except as the enforcement hereof and thereof may be limited by
bankruptcy, insolvency, moratorium, fraudulent conveyance or other similar laws
relating to or affecting creditors' rights generally and court decisions with
respect thereto and subject to the applicability of general principles of
equity, and except as rights to indemnity and contribution hereunder and
thereunder may be limited by federal or state securities laws or principles of
public policy.
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(l) The assignment and delivery of Financed Student Loans by College Loan and
the College Loan Eligible Lender Trustee to the Company and the Eligible Lender
Trustee, and the assignment of the Financed Student Loans by the Company and the
Eligible Lender Trustee to the Trustee pursuant to the Indenture, will vest in
the Trustee, for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
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(m) The Company is not, nor as a result of the issuance and sale of the Series
2004-1 Notes as contemplated hereunder will it become, subject to registration
as an "investment company" under the Investment Company Act of 1940, as amended.
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(n) 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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(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, the Company has occurred.
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4. Agreements of the Company. The Company agrees with each of the Underwriters
as follows:
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(a) The Company will prepare a supplement to the Prospectus setting forth the
amount of the Series 2004-1 Notes covered thereby and the terms thereof not
otherwise specified in the Prospectus, the price at which the Series 2004-1
Notes are to be purchased by the Underwriters, either the initial public
offering price or the method by which the price at which the Series 2004-1 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 Series 2004-1 Notes, and the
Company will timely file such supplement to the prospectus with the SEC pursuant
to Rule 424(b) under the Securities Act, but the Company will not file any
amendments to the Registration Statement as in effect with respect to the Series
2004-1 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
Series 2004-1 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, at any time when the Prospectus relating to the Series 2004-1 Notes is
required to be delivered under the Securities 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 Securities Act or the Rules and Regulations,
the Company promptly will notify each of the Underwriters of such event and will
promptly prepare and file with the SEC, at its own expense, an amendment or
supplement to such Prospectus that will correct such statement or omission or an
amendment that will effect such compliance. Neither the Underwriters' consent
to, nor the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6 hereof.
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(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 Series 2004-1 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 Series 2004-1 Notes.
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(d) The Company will furnish to the Underwriters, without charge, copies of the
Registration Statement (including all documents and exhibits thereto or
incorporated by reference therein), the Prospectus, and all amendments and
supplements to such documents relating to the Series 2004-1 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.
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(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 Series 2004-1 Notes for offering and sale by the Underwriters and by
dealers under the securities or Blue Sky laws of such jurisdictions as the
Underwriters may designate and will file such consents to service of process or
other documents necessary or appropriate in order to effect such qualification
or exemptions; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action which would subject it to service of process in suits, other
than those arising out of the offering or sale of the Series 2004-1 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 Series 2004-1 Notes are offered by
the Underwriters and by dealers, of the Prospectus furnished by the Company.
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(h) To the extent, if any, that the rating or ratings provided with respect to
the Series 2004-1 Notes by the rating agency or agencies that initially rate the
Series 2004-1 Notes is conditional upon the furnishing of documents or the
taking of any other actions by the Company, the Company shall cause to be
furnished such documents and such other actions to be taken.
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(i) So long as any of the Series 2004-1 Notes are outstanding, the Company will
furnish to the Underwriters (i) as soon as available, a copy of each document
relating to the Series 2004-1 Notes required to be filed with the SEC pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any
order of the SEC thereunder; and (ii) such other information concerning the
Company as the Underwriters may request from time to time.
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(j) If this Agreement shall terminate or shall be terminated after execution and
delivery pursuant to any provisions hereof (otherwise than by notice given by
the Underwriters terminating this Agreement pursuant to Section 8 or Section 9
hereof) or if this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company to comply with the terms or
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
the Underwriters for all out of pocket expenses (including fees and expenses of
their counsel) reasonably incurred by it in connection herewith, but without any
further obligation on the part of the Company for loss of profits or otherwise.
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(k) The net proceeds from the sale of the Series 2004-1 Notes hereunder will be
applied substantially in accordance with the description set forth in the
Prospectus.
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(l) Except as stated in this Agreement and in the Prospectus, the 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 Series 2004-1 Notes to facilitate the sale or
resale of the Series 2004-1 Notes.
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(m) On or before the Closing Date, the Company shall mark its accounting and
other records, if any, relating to the Financed Student Loans and shall cause
each Servicer to mark 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 Financed Student
Loans, and the Company shall not take, or shall permit any other person to take,
any action inconsistent with the ownership of, and the interest of the Company
in, the Financed Student Loans, other than as permitted by the Basic Documents.
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(n) For the period beginning on the date of this Agreement and ending 90 days
hereafter, none of the Company and any entity affiliated, directly or
indirectly, with the Company will, without the prior written notice to the
Underwriters, offer to sell or sell notes (other than the Series 2004-1 Notes)
collateralized by Financed Student Loans.
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(o) If, at the time the Registration Statement became effective, any information
shall have been omitted therefrom in reliance upon Rule 430A under the
Securities 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 Securities Act, copies
of an amended Prospectus containing all information so omitted.
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(p) As soon as practicable, but not later than 16 months after the date of this
Agreement, the 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 Securities Act.
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5. Indemnification and Contribution.
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(a) College Loan 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 Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and expenses (or
actions in respect thereof) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Prospectus, or in any amendment or supplement thereto, or any
preliminary prospectus, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are based
upon any untrue statement or omission or alleged untrue statement or omission
which has been made therein or omitted therefrom in reliance upon and in
conformity with the information relating to an Underwriter furnished in writing
to the Company or College Loan 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 Series 2004-1 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 Series 2004-1 Notes to that person
without sending or giving at or prior to the written confirmation of such sale,
a copy of the final Prospectus (as then amended or supplemented but excluding
documents incorporated by reference therein) if the Company has previously
furnished sufficient copies thereof to such Underwriter at a time reasonably
prior to the date such Series 2004-1 Notes are sold to such person. The
foregoing indemnity agreement shall be in addition to any liability which
College Loan or the Company may otherwise have.
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(b) If any action, suit or proceeding shall be brought against an Underwriter or
any person controlling an Underwriter in respect of which indemnity may be
sought against College Loan, 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 satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party). The applicable Underwriter or any such
controlling person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless (i) the indemnifying parties have agreed in
writing to pay such fees and expenses; (ii) the indemnifying parties have failed
to assume the defense and employ counsel; or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both the
Underwriter or such controlling person and the indemnifying parties and the
Underwriter or such controlling person shall have been advised by its counsel
that there may be one or more legal defenses available to it which are different
from or additional to or in conflict with those available to the indemnifying
parties and in the reasonable judgment of such counsel it is advisable for the
Underwriter or such controlling person to employ separate counsel (in which case
the indemnifying party shall not have the right to assume the defense of such
action, suit or proceeding on behalf of the Underwriter or such controlling
person). It is understood, however, that the indemnifying parties shall, in
connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for each Underwriter
and controlling persons not having actual or potential differing interests with
such Underwriter or among themselves, which firm shall be designated in writing
by such Underwriter, and that all such fees and expenses shall be reimbursed on
a monthly basis as provided in paragraph (a) hereof. An indemnifying party will
not, without the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent (A) includes an unconditional
release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding; and (B) does not include a statement as to, or an
admission of fault, culpability or a failure to act by or on behalf of an
indemnified party.
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(c) Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless College Loan and its directors and officers, and any person who
controls College Loan within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, to the same extent as the indemnity from College
Loan 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 College
Loan, 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 College Loan by paragraph
(b) above (except that if College Loan 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 College Loan, its directors and officers, and any
such controlling person shall have the rights and duties given to the
Underwriters by paragraph (b) above. The foregoing indemnity agreement shall be
in addition to any liability which the Underwriters may otherwise have.
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(d) If the indemnification provided for in this Section is unavailable to an
indemnified party under paragraph (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 College Loan on
the one hand and the applicable Underwriter on the other hand from the offering
of the Series 2004-1 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 College Loan 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
College Loan 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 College Loan 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 College
Loan or 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.
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(e) College Loan and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 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, 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 Series 2004-1 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. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
in this paragraph (e) to contribute are several in proportion to their
respective underwriting obligations.
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(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 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 and the representations and
warranties of College Loan 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, College Loan or any
person controlling any of them or their respective directors or officers; (ii)
acceptance of any Series 2004-1 Notes and payment therefor hereunder; and (iii)
any termination of this Agreement. A successor to the Underwriters, College Loan
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.
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6. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters to purchase the Series 2004-1 Notes hereunder are subject to the
following conditions precedent:
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(a) All actions required to be taken and all filings required to be made by the
Company under the Securities Act prior to the sale of the Series 2004-1 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.
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(b) Subsequent to the effective date of this Agreement, there shall not have
occurred (i) any change, or any development or event involving a prospective
change, in or affecting the condition (financial or other), business,
properties, net worth, or results of operations of the Company, a Servicer, a
Guarantee Agency or College Loan not contemplated by the Registration Statement,
which in the opinion of the Underwriters, would materially adversely affect the
market for the Series 2004-1 Notes; (ii) any downgrading in the rating of any
debt securities of the Company, the Servicers, a Guarantee Agency or College
Loan by any nationally recognized statistical rating organization or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company, the Servicers, a Guarantee Agency
or College Loan (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); or (iii) any event or development which makes any statement made in the
Registration Statement or Prospectus untrue or which, in the opinion of the
Company and its counsel or the Underwriters and their counsel, requires the
filing of any amendment to or change in the Registration Statement or Prospectus
in order to state a material fact required by any law to be stated therein or
necessary in order to make the statements therein not misleading, if amending or
supplementing the Registration Statement or Prospectus to reflect such event or
development would, in the opinion of the Underwriters, materially adversely
affect the market for the Series 2004-1 Notes.
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(c) You shall have received an opinion addressed to you of Stroock & Stroock &
Xxxxx LLP, in its capacity as counsel to the Company, dated the Closing Date, in
form and substance satisfactory to you and your counsel with respect to the
status of the Company, to each Basic Document to which the Company is a party
and to the validity of the Series 2004-1 Notes and such related matters as you
shall reasonably request. In addition, you shall have received an opinion
addressed to you of Stroock & Stroock & Xxxxx LLP, in its capacity as counsel
for the Company, in form and substance satisfactory to you and your counsel,
concerning "true sale," "non-consolidation" and creation of security interest
and certain other issues with respect to the transfer of the Financed Student
Loans from College Loan and the College Loan Eligible Lender Trustee to the
Company and the Eligible Lender Trustee, and the pledge of the Financed Eligible
Loans from the Company and the Eligible Lender Trustee to the Trustee and an
opinion addressed to you of Xxxxxxxx, Xxxxxx & Finger with respect to said
security interest being a first priority perfected security interest.
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(d) You shall have received an opinion addressed to you of Stroock & Stroock &
Xxxxx LLP, in its capacity as counsel for the Company, dated the Closing Date,
in form and substance satisfactory to you and your counsel to the effect that
(i) the statements in the Prospectus under the headings "Federal Income Tax
Consequences" and "ERISA Considerations," to the extent that they constitute
statements of matters of law or legal conclusions with respect thereto, have
been prepared or reviewed by such counsel and are correct in all material
respects and (ii) no facts have come to its attention that lead it to believe
that the Registration Statement as of its effective date contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus as of the date of the Prospectus Supplement and on the
Closing Date contained or contains any untrue statement of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each case, other
than (A) the financial, statistical or computational material included in or
incorporated by reference into the Registration Statement, the Prospectus or any
amendment or supplement thereto and (B) the information in the Prospectus
Supplement under the headings "Information Relating to the Guarantee Agencies"
and "Servicing of the Student Loans," as to which no view need be expressed).
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(e) You shall have received an opinion addressed to you of Stroock & Stroock &
Xxxxx LLP, in its capacity as counsel for the Company, dated the Closing Date,
in form and substance satisfactory to you and your counsel with respect to the
character of the Series 2004-1 Notes for federal tax purposes.
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(f) You shall have received an opinion addressed to you of Xxxxx Xxxx LLP, in
its capacity as Underwriters' Counsel, dated the Closing Date, in form and
substance satisfactory to you.
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(g) You shall have received an opinion addressed to you of Stroock & Stroock &
Xxxxx LLP, in its capacity as counsel for the Company, dated the Closing Date in
form and substance satisfactory to you and your counsel with respect to the
Prospectus and the Registration Statement and certain matters arising under the
Trust Indenture Act of 1939, as amended, and the Investment Company Act of 1940,
as amended.
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(h) You shall have received opinions addressed to you of The Xxxxxxx Firm, ALC,
as counsel to College Loan with respect to College Loan and of Stroock & Stroock
& Xxxxx LLP and/or Xxxxxxxx, Xxxxxx & Finger as counsel to SPC, with respect to
SPC, each dated the Closing Date and satisfactory in form and substance to you
and your counsel, to the effect that:
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(i) Each of College Loan and SPC is a corporation in good standing under the
laws of their respective state of organization; each having the full power and
authority, corporate and other, to own its properties and conduct its business,
as presently conducted by it, and to enter into and perform its obligations
under each of the Basic Documents to which it is a party.
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(ii) The Basic Documents to which College Loan is a party have been authorized,
executed and delivered by appropriate officers acting for and on behalf of
College Loan. Assuming authorization, execution and delivery by appropriate
officers acting for and on behalf of the other parties thereto, each such
agreement is legal, valid and binding upon College Loan, enforceable against
College Loan in accordance with their respective terms, except (A) the
enforceability thereof may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights; and (B) remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
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(iii) Neither the execution and delivery by College Loan of the Basic Documents
to which it is a party, nor the consummation by College Loan of the transactions
contemplated therein nor the fulfillment of the terms thereof by College Loan
will conflict with, result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the articles of
incorporation, as amended, or bylaws, as amended, of College Loan or of any
indenture or other agreement or instrument to which College Loan is a party or
by which College Loan is bound, or result in a violation of or contravene the
terms of any California or federal statute, order or regulation applicable to
College Loan of any California or federal court, regulatory body, administrative
agency or governmental body having jurisdiction over College Loan.
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(iv) There are no actions, proceedings or investigations pending or, to the best
of such counsel's knowledge, threatened against College Loan before or by any
governmental authority that might materially and adversely affect the
performance by College Loan of its obligations under, or the validity or
enforceability of, the Basic Documents to which it is a party.
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(v) No authorization, approval or other action by, and no notice to or filing
with, any California or federal governmental authority or regulatory body is
required for the due execution, delivery and performance by College Loan of the
Basic Documents to which it is a party.
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(vi) The information contained in the Prospectus with respect to College Loan
and its operations and business and with respect to the student loan business of
College Loan is true and correct in all material respects, and does not contain
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
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(i) You shall have received an opinion addressed to you of counsel to the
Trustee and the Eligible Lender Trustee, dated the Closing Date and in form and
substance satisfactory to you and your counsel, to the effect that:
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(i) Each of them is a banking corporation duly organized and validly existing
under the laws of the State of New York.
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(ii) Each of them has the full corporate trust power to accept the office of
trustee under the Basic Documents to which they are a party and to enter into
and perform their obligations under the Basic Documents to which they are a
party and, additionally, in the case of the Trustee, the Auction Agent
Agreement, Market Agent Agreement (collectively, the "Trustee Documents" and the
"Eligible Lender Trustee Documents," as the case may be).
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(iii) The execution and delivery by the Trustee and the Eligible Lender Trustee
of the Trustee Documents and the Eligible Lender Trustee Documents,
respectively, and the performance by such parties of their obligations
thereunder, have been duly authorized by all necessary action and each has been
duly executed and delivered by the Trustee and the Eligible Lender Trustee.
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(iv) The Trustee Documents and the Eligible Lender Trustee Documents constitute
valid and binding obligations of the Trustee and the Eligible Lender Trustee
enforceable against such party.
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(v) The Trustee and the Eligible Lender Trustee, respectively, is an "eligible
lender" for purposes of the FFELP Program in its capacity as trustee with
respect to Financed Student Loans.
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(j) You shall have received certificates addressed to you dated the Closing Date
of officials of the Company in which such officers shall state that, to the best
of their knowledge after reasonable investigation, (i) the representations and
warranties of the Company contained in the respective Basic Documents to which
the Company is a party are true and correct in all material respects, that the
Company 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 is true and correct in all material respects and does not
contain an untrue statement of material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances in 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 or any development involving a prospective material
adverse change, in or affecting particularly the business or properties of the
Company has occurred.
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(k) You shall have received certificates addressed to you dated the Closing Date
of officials of College Loan in which such officers shall state that, to the
best of their knowledge after reasonable investigation, (i) the representations
and warranties of College Loan contained in the respective Basic Documents to
which College Loan is a party are true and correct in all material respects,
College Loan 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) they have reviewed the Prospectus and that the information
therein regarding College Loan and the Basic Documents to which it is a party is
fair and accurate in all material respects; and (iii) since the date set forth
in such certificate, except as may be disclosed in the Prospectus, no material
adverse change or any development involving a prospective material adverse
change in, or affecting particularly the business or properties of College Loan
has occurred.
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(l) You shall have received evidence satisfactory to you that, on or before the
Closing Date, UCC-1 financing statements have been or are being filed in the
office of the Secretary of State of the State of Delaware with respect to the
Company and the Secretary of State of New York with respect to the Eligible
Lender Trustee reflecting the grant of the security interest by the Company and
the Eligible Lender Trustee in the Financed Student Loans and the proceeds
thereof to the Trustee.
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(m) You shall have received a certificate addressed to you dated the Closing
Date from a responsible officer acceptable to you of the Eligible Lender Trustee
and the College Loan Eligible Lender Trustee in form and substance satisfactory
to you and your counsel and to which shall be attached each Guarantee Agreement.
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(n) The Underwriters shall have received on the Closing Date from Price
Waterhouse Coopers a letter dated on or before the Closing Date, and in form and
substance satisfactory to the Underwriters, to the effect that they have carried
out certain specified procedures, not constituting an audit, with respect to
certain information regarding the Financed Student Loans and setting forth the
results of such specified procedures.
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(o) All the representations and warranties of the Company contained in this
Agreement and the Basic Documents to which it is a party and of College Loan in
the Basic Documents to which it is a party shall be true and correct in all
material respects on and as of the date hereof and on and as of the Closing Date
as if made on and as of the Closing Date and the Underwriters shall have
received a certificate, dated the Closing Date and signed by officers of the
Company and such entities to the effect set forth in this Section.
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(p) The Company shall not have failed at or prior to the Closing Date to have
performed or complied with any of its agreements herein contained and required
to be performed or complied with by it hereunder at or prior to the Closing
Date.
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(q) The Underwriters shall have received by instrument dated the Closing Date
(at the option of the Underwriters), in lieu of or in addition to the legal
opinions referred to in this Section, the right to rely on opinions provided by
such counsel and all other counsel under the terms of the Basic Documents.
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(r) Each class of Series 2004-1 Notes representing Class A Notes shall be rated
"AAA," "AAA" and "Aaa," and each class of Series 2004-1 Notes representing Class
B Notes shall be rated "A", "A" and "A2, respectively, by Fitch, Inc. ("Fitch"),
Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx Companies
("S&P"), and Xxxxx'x Investors Service, Inc. ("Xxxxx'x"), and that none of
Fitch, S&P or Xxxxx'x have placed the Series 2004-1 Notes under surveillance or
review with possible negative implications.
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(s) The issuance of the Series 2004-1 Notes shall not have resulted in a
reduction, suspension or withdrawal by Fitch, S&P or Moody's of the current
rating of any outstanding notes issued by the Company pursuant to the Indenture.
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(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 the Servicers'
computer systems.
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(u) You shall have received certificates addressed to you dated the Closing Date
from officers of the Company and others addressing such additional matters as
you may reasonably request in form and substance satisfactory to you and your
counsel.
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(v) You shall have received certificates addressed to you dated the initial
Closing Date of the Guarantee Agencies to the effect that (i) the information in
the Prospectus with respect to the applicable Guarantee Agency is true and
correct and is fair and accurate in all material respects; and (ii) that since
the date of the Prospectus, no material adverse change in or affecting the
business or properties of the applicable Guarantee Agency has occurred.
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(w) You shall have received certificates addressed to you dated the initial
Closing Date of officials of each of ACS and GLELSI in which such officers shall
state that, to the best of their knowledge after reasonable investigation, (i)
the representations and warranties of the applicable Servicer contained in the
Servicing Agreement to which it is a party are true and correct in all material
respects, that such 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 initial Closing Date; (ii) that they have reviewed the Prospectus
and that the information therein regarding the applicable Servicer is fair and
accurate in all material respects; and (iii) since the date set forth in such
certificate, except as may be disclosed in the Prospectus, no material adverse
change or any development involving a prospective material adverse change in, or
affecting particularly the business or properties of the applicable Servicer,
has occurred.
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(x) You shall have received such other opinions (including an opinion of
Xxxxxxxx, Xxxxxx & Xxxxxx), certificates and documents as are required under the
Indenture as a condition to the issuance of the Series 2004-1 Notes.
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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: (a) 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; (b)
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 Series 2004-1 Notes; (c) the
preparation, printing, authentication, issuance and delivery of definitive
certificates for the Series 2004-1 Notes; (d) 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 Series 2004-1 Notes; (e) qualification of
the Indenture under the Trust Indenture Act; (f) the qualification of the Series
2004-1 Notes for offer and sale under the securities or Blue Sky laws of the
several states as provided in Section 3(h) hereof (including the reasonable
fees, expenses and disbursements of counsel relating to the preparation,
printing or reproduction, and delivery of the preliminary and supplemental Blue
Sky Memoranda and such qualification); (g) the fees and disbursements of (i) the
Company's counsel, (ii) the Trustee and its counsel, (iii) the Delaware Trustee
and its counsel, (iv) the Depository Trust Company in connection with the
book-entry registration of the Series 2004-1 Notes, (v) the SEC, and (vi) Price
Waterhouse Coopers, accountants for the Company and issuer of the agreed upon
procedures letter; and (h) the fees charged by S&P, Fitch and Moody's for rating
the Series 2004-1 Notes.
8. Effective Date of Agreement. This Agreement shall be deemed effective as of
the date first above written upon the execution and delivery hereof by all the
parties hereto. Until such time as this Agreement shall have become effective,
it may be terminated by the Company, by notifying each of the Underwriters, or
by the Underwriters, by notifying the Company.
Any notice under this Section may be given by facsimile or telephone but shall
be subsequently confirmed by letter.
9. Termination of Agreement. This Agreement shall be subject to termination in
the absolute discretion of the Underwriters, without liability on the part of
the Underwriters to the Company, by notice to the Company, if prior to the
Closing Date (a) 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; (b) a general moratorium on commercial banking activities
in New York shall have been declared by either federal or state authorities; or
(c) there shall have occurred any outbreak or escalation of hostilities or other
international or domestic calamity, crisis or change in political, financial or
economic conditions, the effect of which is such as to make it, in the judgment
of the Underwriters, impracticable or inadvisable to commence or continue the
offering of the Series 2004-1 Notes on the terms set forth in the Prospectus, as
applicable, or to enforce contracts for the resale of the Series 2004-1 Notes by
the Underwriters. Notice of such termination may be given to the Company by
facsimile or telephone and shall be subsequently confirmed by letter.
10. Information Furnished by the Underwriters. The statements set forth in the
second, fourth and seventh paragraphs and the table under the heading "Plan of
Distribution" in the supplement to the Prospectus relating to the Series 2004-1
Notes constitute the only information furnished by or on behalf of the
Underwriters as such information is referred to in Sections 3(b) and 5
hereof.
11. Default by One of the Underwriters. If any of the Underwriters shall fail on
the Closing Date to purchase the Series 2004-1 Notes which it is obligated to
purchase hereunder (the "Defaulted Notes"), the remaining Underwriter (the
"Non-Defaulting Underwriter") shall have the right, but not the obligation,
within one Business Day thereafter, to make arrangements to purchase all, but
not less than all, of the Defaulted Notes upon the terms herein set forth; if,
however, the Non-Defaulting Underwriter shall have not completed such
arrangements within such one Business Day period, then this Agreement shall
terminate without liability on the part of the Non-Defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this
Agreement, either the Non-Defaulting Underwriters or the Company shall have the
right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
12. Computational Materials.
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(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:
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(i) The Underwriters shall comply with all applicable laws and regulations in
connection with the use of Computational Materials including the No-Action
Letter of May 20, 1994 issued by the Commission to Xxxxxx, 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 27, 1994, and the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (collectively, the "Xxxxxx/PSA
Letters").
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(ii) As used herein, "Computational Materials" and the term "ABS Term Sheets"
shall have the meanings given such terms in the Xxxxxx/PSA Letters, but shall
include only those Computational Materials that have been prepared or delivered
to prospective investors by or at the direction of an Underwriter.
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(iii) Each Underwriter shall provide the 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 subsection (b) of this Section, 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 paragraph
(iii) must be provided to the Company not later than 10:00 a.m., New York City
time, one business day before filing thereof is required pursuant to the terms
of this Agreement.
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(iv) If an Underwriter does not provide the Computational Materials to the
Company pursuant to paragraph (iii) above, such Underwriter shall be deemed to
have represented, as of the applicable Closing Date, that it did not provide any
prospective investors with any information in written or electronic form in
connection with the offering of the Notes that is required to be filed with the
Commission in accordance with the Xxxxxx/PSA Letters.
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(v) In the event of any delay in the delivery by an Underwriter to the Company
of all Computational Materials required to be delivered in accordance with
subparagraph (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 subsection (b) of
this Section to file the Computational Materials by the time specified therein.
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(b) The Company shall file the Computational Materials, if any, provided to it
by the Underwriter under subsection (a)(iii) of this Seciton with the Commission
pursuant to a Current Report on Form 8-K no later than 5:30 p.m., New York time,
on the date required pursuant to the Xxxxxx/PSA Letters.
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13. Survival of Representations and Warranties. The respective indemnities,
agreements, representations, warranties and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement or contained in notes of officers of the Company submitted pursuant
hereto shall remain operative and in full force and effect, regardless of any
investigation or statement as to the results thereof, made by or on behalf of
the Underwriters, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Series 2004-1 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 (a) if to the Company or College Loan, at 00000 Xxxx Xxxxxxxx
Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: Xxxx Xxxx with a copy
to Xxxxxxx X. Xxxxx, Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx,
Xxx Xxxx 00000; and (b) if to the Underwriters, to the address of the respective
Underwriter set forth above with a copy to Xxxxxx X. Xxxxx, Xxxxx Xxxx LLP, 0000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000.
This
Agreement has been and is made solely for the benefit of the Underwriters, the
Company, their respective directors, officers, managers, trustees and
controlling persons referred to in Section 5 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
“successor” nor the term “successors and assigns” as used in
this Agreement shall include a purchaser from an Underwriter of any of the
Series 2004-1 Notes in his status as such purchaser.
15. Applicable Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York without giving
effect to the choice of laws or conflict of laws principles thereof.
The
Company hereby submits to the non-exclusive jurisdiction of the federal and
state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
This Agreement may be signed in various counterparts which together constitute
one and the same instrument. If signed in counterparts, this Agreement shall not
become effective unless at least one counterpart hereof or thereof shall have
been executed and delivered on behalf of each party hereto.
16. Liability of Wilmington Trust Company. Wilmington Trust Company acts solely
as the Delaware Trustee hereunder and not in its individual capacity. All
persons having any claim against the Company or the Delaware Trustee by reason
of this Agreement shall look only to the Trust Estate for payment or
satisfaction thereof.
Please confirm that the foregoing correctly sets forth the agreement between the
Company and the Underwriters.
|
By /s/ Xxxx Xxxx
Title Treasurer
|
|
By /s/ Xxxx Xxxx
Title Treasurer
|
Confirmed as of the date first
above mentioned.
UBS SECURITIES LLC
By /s/ Xxxx XxXxxxxx
Title Executive Director
CITIGROUP GLOBAL MARKETS INC.
By /s/ Xxxx X. Xxx
Title Director
XXXXXXX, XXXXX & CO.
/s/ Xxxxxxx, Xxxxx & Co.
(Xxxxxxx, Xxxxx & Co.)
RBC XXXX XXXXXXXX INC.
By /s/ Xxxxx X. Xxxxx
Title Managing Director
|
UBS SECURITIES LLC
By /s/ Xxxxx X. Xxxxxx
Title Managing Director
|
SCHEDULE A
Series 2004-1 UBS Securities Citigroup Global Xxxxxxx, Xxxxx RBC Dain Total
Notes LLC Markets Inc. & Co. Xxxxxxxx Inc.
Class A-1 $97,700,000 $122,100,000 $48,800,000 $24,400,000 $293,000,000
Class A-2 102,300,000 127,900,000 51,200,000 25,600,000 307,000,000
Class A-3 133,300,000 166,700,000 66,700,000 33,300,000 400,000,000
Class A-4 66,700,000 83,300,000 33,300,000 16,700,000 200,000,000
Class B -0- -0- 100,000,000 -0- 100,000,000
------------ ------------ ------------ ------------ --------------
Total $400,000,000 $500,000,000 $300,000,000 $100,000,000 $1,300,000,000
============ ============ ============ ============ ==============
SCHEDULE B
Terms of the Series 2004-1 Notes
Final Price to Underwriting Proceeds to
Class Interest Rate Maturity Date Public Discount Issuer
Class A-1 3-month LIBOR plus 0.05% 4/25/2011 100% 0.200% $ 292,414,000
Class A-2 3-month LIBOR plus 0.11% 4/25/2016 100% 0.220% 306,324,600
Class A-3 3-month LIBOR plus 0.16% 4/25/2021 100% 0.245% 399,020,000
Class A-4 3-month LIBOR plus 0.19% 4/25/2024 100% 0.300% 199,400,000
Class B Auction Rate Certificates 5/1/2044 100% 0.220% 99,780,000
--------------
Total $1,296,938,600
