THE NATIONAL COLLEGIATE STUDENT LOAN TRUST 20__-__ Student Loan Asset Backed Notes consisting of $ _________ Class A-1 Notes $ _________ Class A-2 Notes $ _________ Class A-3 Notes $ _________ Class A-4 Notes $ _________ Class A-5 Notes $_________...
EXHIBIT
1.1
$___________________
THE
NATIONAL COLLEGIATE STUDENT LOAN TRUST 20__-__
Student
Loan Asset Backed Notes
consisting
of
$
_________ Class A-1 Notes
$
_________ Class A-2 Notes
$
_________ Class A-3 Notes
$
_________ Class A-4 Notes
$
_________ Class A-5 Notes
$_________
Class A-IO Notes (initial notional amount)
$
_________ Class B Notes
$
_________ Class C Notes
$
_________ Class D Notes
_____________,
20__
|
[Underwriter]
[Address]
[City,
State Zip Code]
|
|
[Underwriter]
[Address]
[City,
State Zip Code]
|
Ladies
and Gentlemen:
The
National Collegiate Funding LLC, a Delaware limited liability company (“National
Collegiate Funding”), has authorized The National Collegiate Student Loan Trust
20__-__, a Delaware statutory trust (the “Trust”), to sell to _________________
and _________________ (each an “Underwriter” and collectively, the
“Underwriters”), pursuant to the terms of this Underwriting Agreement (this
“Agreement”), $___________________ aggregate principal amount (and in the case
of the A-IO Notes, $___________________ aggregate notional amount) of the
Trust’s Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Class A-5 Notes, Class A-IO Notes, Class B Notes, Class C Notes and Class
D
Notes (collectively, the “Offered Notes”) in the classes and aggregate principal
or reference amounts set forth on Schedule
A
hereto.
The Offered Notes will be issued under an Indenture, dated as of ____________,
20__ (the “Indenture”), between the Trust and U.S. Bank National Association, a
national banking association (“U.S. Bank”), as indenture trustee (the “Indenture
Trustee”). Upon issuance, the Offered Notes will be secured by, among other
things, Financed Student Loans (as defined in the Indenture) pledged to the
Indenture Trustee. The Financed Student Loans will be serviced by The
Pennsylvania Higher Education Assistance Agency (“PHEAA”) and one or more
additional third party servicers (each, a “Servicer” and collectively, the
“Servicers”) pursuant to the servicing agreements listed on Schedule
B
hereto
(collectively, the “Servicing Agreements”), which servicing agreements will be
assigned to the Trust by The First Marblehead Corporation (“FMC”), as of
____________, 20__.
This
Agreement, along with (i) the note purchase agreements listed on Schedule
C
hereto
(collectively, the “Student Loan Purchase Agreement”), (ii) the Servicing
Agreements, (iii) the Indenture, (iv) the Administration Agreement dated
as of
____________, 20__ among the Trust, ______________ (the “Trustee”), the
Indenture Trustee, National Collegiate Funding and First Marblehead Data
Services, Inc., (v) the Back-up Administration Agreement, dated as of
____________, 20__, among the Trust, the Trustee, the Indenture Trustee,
National Collegiate Funding and U.S. Bank, as the back-up administrator,
(vi)
the Deposit and Sale Agreement dated as of ____________, 20__ (the “Deposit and
Sale Agreement”) between National Collegiate Funding and the Trust and (vii) the
Trust Agreement dated as of ____________, 20__, among National Collegiate
Funding, as Depositor, and The
Education Resources Institute, Inc.
(“XXXX”), as Owners, and ______________, as Trustee are collectively referred to
as the “Basic Documents.”
Capitalized
terms used herein without definition shall have the meanings ascribed to
them in
the Indenture.
1. Agreements
to Sell and Purchase.
National
Collegiate Funding hereby agrees, subject to all the terms and conditions
set
forth herein, to cause the Trust to sell to the Underwriters and, upon the
basis
of the representations, warranties and agreements of National Collegiate
Funding
contained herein and subject to all the terms and conditions contained herein,
each Underwriter, severally and not jointly, agrees to purchase from the
Trust,
such principal amount (or in the case of the Class A-IO Notes, reference
amount)
of the Offered Notes set forth next to the name of such Underwriter on
Schedule
A
hereto
at such respective purchase prices as are set forth on Schedule
A
hereto.
2. Delivery
of the Offered Notes and Payment Therefor.
Delivery
to the Underwriters of and payment for the Offered Notes shall be made at
the
office of _____________, at ______, ________ time, on ____________, 20__
(the
“Closing Date”). The place of such closing and the Closing Date may be varied by
agreement between the Underwriters, National Collegiate Funding and the
Trust.
The
Offered Notes will be delivered to the Underwriters against payment of the
purchase price therefor to the Trust in Federal funds, by wire transfer to
an
account at a bank acceptable to the Underwriters, or such other form of payment
as to which the parties may agree. Unless otherwise agreed to by National
Collegiate Funding and the Underwriters, each Class of Offered Notes will
be
evidenced by a single global security in definitive form deposited with the
Indenture Trustee as custodian for The Depository Trust Company (“DTC”) and/or
by additional definitive securities, and will be registered, in the case
of the
global classes of Offered Notes, in the name of Cede & Co. as nominee of
DTC, and in the other cases, in such names and in such denominations as the
Underwriters shall request prior to 1:00 p.m., New York City time, no later
than
the Business Day preceding the Closing Date. The Offered Notes to be delivered
to the Underwriters shall be made available to the Underwriters in _______,
_______, for inspection and packaging not later than 9:30 a.m., _______ time,
on
the Business Day next preceding the Closing Date.
3. Representations
and Warranties of National Collegiate Funding.
National
Collegiate Funding represents and warrants to each of the Underwriters
that:
(a) A
registration statement on Form S-3 (No 333-______), including a prospectus
and such amendments thereto as may have been required to the date hereof,
relating to the Offered Notes and the offering thereof from time to time
in
accordance with Rule 415 under the Securities Act of 1933, as amended (the
“Act”), has been filed with the Securities and Exchange Commission (the “SEC” or
the “Commission”) and such registration statement, as amended, has become
effective within the three years prior to the Closing Date and is still
effective; such registration statement, as amended, and the prospectus relating
to the sale of the Offered Notes offered thereby constituting a part thereof,
as
from time to time amended or supplemented (including the base prospectus
and any
prospectus supplement (the “Prospectus Supplement”) (including static pool
information deemed excluded pursuant to Regulation AB Item 1105(d)) 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 or C under the Act, and the
information incorporated by reference therein) are respectively referred
to
herein as the “Registration Statement” and the “Prospectus”; and the conditions
to the use of a registration statement on Form S-3 under the Act, as set
forth
in the General Instructions to Form S-3, and the conditions of Rule 415 under
the Act, have been satisfied with respect to the Registration Statement.
The
Trust has prepared a Free Writing Prospectus (as defined herein) dated
___________, 20__ (such Free Writing Prospectus, together with the base
prospectus, the “Definitive Free Writing Prospectus”). The Trust has prepared a
term sheet containing the final terms for all classes of the Offered Notes
(except for the interest rates on the Offered Notes) together with substantially
all of the information that will appear in the Prospectus Supplement including
the Underwriting section (except for the allocation of the Offered Notes
among
the Underwriters) that is not included in the Definitive Free Writing Prospectus
(the “Term Sheet”) (the Definitive Free Writing Prospectus and the Term Sheet
shall be referred to as the “Pricing Information Package”). The Pricing
Information Package shall be provided to the Underwriters for delivery to
each
investor prior to the time of Contract of Sale (as defined
herein).
(b) On
the
latest effective date of each part of the Registration Statement, the
Registration Statement and the Prospectus conformed in all respects to the
requirements of the Act, the rules and regulations thereunder (the “Rules and
Regulations”) and the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder (the “Trust Indenture Act”), and, did not include any
untrue statement of a material fact or, in the case of the Registration
Statement, omit to state any material fact required to be stated therein
or
necessary to make the statements therein not misleading and, in the case
of the
Prospectus omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and on the date of this Agreement and on the Closing Date, the
Registration Statement and the Prospectus will conform in all respects to
the
requirements of the Act, the Rules and Regulations and the Trust Indenture
Act,
and did not include or will not 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 solely based upon written information furnished
to
National Collegiate Funding by the Underwriters, specifically for use therein,
which is limited to the information set forth in Section 11 of this
Agreement. In addition, the Pricing Information Package, as of the date of
Contract of Sale and as of the Closing Date, did not and will not contain
an
untrue statement of a material fact and did not and will not omit to state
a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading.
(c) The
Commission has not issued and, to the best knowledge of National Collegiate
Funding, is not threatening to issue any order preventing or suspending
the use
of the Registration Statement.
(d) National
Collegiate Funding is not, as of the date specified in Rule 164(h)(2) of
the
Act, an Ineligible Issuer, as such term is defined in Rule 405 under the
Act.
Assuming that the Offered Notes are issued in accordance with the provisions
of
the Indenture and distributed in accordance with the terms of this Agreement
and
as described in the Definitive Free Writing Prospectus and in the Prospectus,
the Offered Notes are “asset backed securities” within the meaning of, and
satisfy the requirements for use of, Form S-3 under the Act.
(e) As
of the
Closing Date, each consent, approval, authorization or order of, or filing
with,
any court or governmental agency or body which is required to be obtained or
made by National Collegiate Funding or its affiliates for the consummation
of
the transactions contemplated by this Agreement shall have been obtained, except
as otherwise provided in the Basic Documents.
(f) The
Indenture has been duly and validly authorized by National Collegiate Funding
and, upon its execution and delivery by the Trust and assuming due
authorization, execution and delivery by the Indenture Trustee, will be
a valid
and binding agreement of the Trust, enforceable in accordance with its
respective terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws affecting creditors’ rights generally and
conforms 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 Offered Notes.
(g) The
Offered Notes have been duly authorized by each of the Trust and the National
Collegiate Funding and the Offered Notes to be issued on the Closing Date,
when
executed by the Trust and authenticated by the Indenture 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 Trust entitled
to the
benefits of the Indenture and enforceable in accordance with their terms,
except
as enforcement thereof may be limited by bankruptcy, insolvency, moratorium,
fraudulent conveyance or other similar laws relating to or affecting creditors’
rights generally and court decisions with respect thereto, and the Offered
Notes
and the Basic Documents will conform in all material respects to the description
thereof in the Prospectus and the Pricing Information Package.
(h) National
Collegiate Funding is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware with
full
power and authority to own, lease and operate its properties and to conduct
its
business as described in the Prospectus and as conducted on the date hereof,
and
is duly registered and qualified to conduct its business and is in good
standing
in each jurisdiction or place where the nature of its properties or the
conduct
of its business requires such registration or qualification, except where
the
failure so to register or qualify does not have a material adverse effect
on the
condition (financial or other), business, properties, net worth or results
of
operations of National Collegiate Funding.
(i) Other
than as contemplated by this Agreement or as disclosed in the Prospectus
and in
the Definitive Free Writing Prospectus, there is no broker, finder or other
party that is entitled to receive from National Collegiate Funding or any
of its
affiliates any brokerage or finder’s fee or other fee or commission as a result
of any of the transactions contemplated by this Agreement.
(j) There
are
no legal or governmental proceedings pending or threatened or, to the knowledge
of National Collegiate Funding contemplated, against National Collegiate
Funding
or the Trust, or to which National Collegiate Funding or any of its properties
is subject, that are not disclosed in the Prospectus and in the Definitive
Free
Writing Prospectus and which, if adversely decided, would individually
or in the
aggregate have a material adverse effect on the condition (financial or
other),
business, properties or results of operations of National Collegiate Funding
or
the Trust, or would materially and adversely affect the ability of National
Collegiate Funding or the Trust to perform its obligations under this Agreement
and the other Basic Documents or otherwise materially affect the issuance
of the
Offered Notes or the consummation of the transactions contemplated hereby
or by
the Basic Documents.
(k) Neither
the offer, sale or delivery of the Offered Notes by the Trust nor the
execution,
delivery or performance of this Agreement or the other Basic Documents
by
National Collegiate Funding or the Trust nor the consummation by National
Collegiate Funding or the Trust of the transactions contemplated hereby
or
thereby (i) requires or will require any consent, approval, authorization
or
other order of, or registration or filing with, any court, regulatory
body,
administrative agency or other governmental body, agency or official
(except for
compliance with the securities or Blue Sky laws of various jurisdictions,
the
qualification of the Indenture under the Trust Indenture Act and such
other
consents, approvals or authorizations as shall have been obtained prior
to the
Closing Date) or conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the organizational documents
of
National Collegiate Funding or the Trust or (ii) conflicts or will conflict
with
or constitutes or will constitute a breach of, or a default under, in
any
material respect, any agreement, indenture, lease or other instrument
to which
National Collegiate Funding or the Trust is a party or by which National
Collegiate Funding or the Trust or their respective properties may be
bound, or
violates or will violate in any material respect any statute, law, regulation
or
filing or judgment, injunction, order or decree applicable to National
Collegiate Funding or the Trust or their respective properties, or will
result
in the creation or imposition of any lien, charge or encumbrance upon
any
property or assets of any of National Collegiate Funding or the Trust
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.
(l) Each
of
the Trust and National Collegiate Funding 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 each
of the Trust and National Collegiate Funding of its obligations under,
the Basic
Documents to which it is a party have been duly and validly authorized
by each
of the Trust and National Collegiate Funding and the Basic Documents
to which
the Trust or National Collegiate Funding is a party have been duly executed
and
delivered by the Trust or National Collegiate Funding, as applicable,
and
constitute the valid and legally binding agreements of the Trust or National
Collegiate Funding, as applicable, enforceable against the Trust or National
Collegiate Funding, as applicable, 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.
(m) National
Collegiate Funding’s assignment and delivery of Financed Student Loans to the
order of the Trustee on behalf of the Trust pursuant to the Deposit and
Sale
Agreement will vest in the Trustee on behalf of Trust all of National
Collegiate
Funding’s right, title and interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other
encumbrance.
(n) The
Trust
is not, nor as a result of the issuance and sale of the Offered Notes as
contemplated hereunder will it become, subject to registration as an “investment
company” under the Investment Company Act of 1940, as amended.
(o) The
representations and warranties made by National Collegiate Funding and/or
the
Trust in any Basic Document to which National Collegiate Funding or the
Trust is
a party and made in any Officer’s Certificate of the Trust will be true and
correct at the time made and on and as of the applicable Closing
Date.
(p) Since
the
latest effective date of the Registration Statement, no material adverse
change
or any development involving a prospective material adverse change in,
or
affecting particularly the business or properties of, National Collegiate
Funding or the Trust has occurred.
(q) None
of
the information related to the offering of the Offered Notes on (or hyperlinked
from) any website maintained or supported by National Collegiate Funding
or any
affiliate, including FMC’s website at xxx.xxxxxxxxxxxxxxx.xxx, includes or
constitutes a Free Writing Prospectus, other than a Permitted Free Writing
Prospectus, and FMC does not maintain any website other than
xxx.xxxxxxxxxxxxxxx.xxx. A “Permitted Free Writing Prospectus” shall include any
Free Writing Prospectus filed with the SEC in connection with the transactions
contemplated hereby and any “bona fide electronic road show” (as defined in Rule
433 under the Act), if any, related to the offering of the Offered Notes
contemplated hereby.
(r) National
Collegiate Funding has filed each Free Writing Prospectus required to have
been
filed by it under the Act and the Rules and Regulations and it has done
so
within the applicable periods of time required under the Act and the Rules
and
Regulations.
4. Offering
by Underwriters.
(a) Each
Underwriter proposes to offer and/or solicit offers for the Offered Notes
to be
purchased by it for sale to the public as set forth in the Pricing Information
Package and in the Prospectus and each Underwriter agrees that all such
offers,
solicitations and sales by it shall be made in compliance with all applicable
laws and regulations. Prior to ____________, 20__, none of the Underwriters
has
offered, pledged, sold, disposed of or otherwise transferred any Offered
Note or
any security backed by the Financed Student Loans, any interest in any
Offered
Note or such security or any Financed Student Loan.
(b) Each
Underwriter will enter into a Contract of Sale with an investor only after
delivery of the Pricing Information Package to such investor. For purposes
of
this Agreement, “Contract of Sale” shall have the same meaning as in Rule 159
under the Act and all Commission guidance relating to Rule 159.
(c) Each
Underwriter may prepare and provide to investors certain Free Writing
Prospectuses (as defined below), subject to the following
conditions:
(1) Unless
preceded or accompanied by a prospectus satisfying the requirements of
Section
10(a) of the Act, an Underwriter shall not deliver any Written Communication
(as
defined herein) to any person in connection with the initial offering of
the
Offered Notes, unless such Written Communication (i) is made in reliance
on Rule
134 under the Act, (ii) constitutes a prospectus satisfying the requirements
of
Rule 430B under the Act, (iii) is the Definitive Free Writing Prospectus
or the
Term Sheet, or (iv) both (A) constitutes a Free Writing Prospectus used
in
reliance on Rule 164 and (B) includes only information that is within the
definition of either (x) “ABS Informational and Computational Materials” as
defined in Item 1100 of Regulation AB or (y) Permitted Additional Materials
(as
defined herein). “Written Communication” has the same meaning as that term is
defined in Rule 405 under the Act.
(2) Each
Underwriter shall comply with all applicable laws and regulations in connection
with the use of Free Writing Prospectuses, including but not limited to
Rules
164 and 433 under the Act.
(3) For
purposes hereof, “Free Writing Prospectus” shall have the meaning given such
term in Rules 405 and 433 under the Act. “Issuer Information” shall mean
information included in a Free Writing Prospectus that both (i) is within
the
types of information specified in clauses (1) to (5) of footnote 271 of
Commission Release No. 33-8591 (Securities Offering Reform) as shown in
Exhibit
I
attached
hereto and (ii) has been either prepared by or reviewed and approved by,
National Collegiate Funding. Information contained in the Pricing Information
Package and each of the Press Releases of FMC dated ____________, 20__
and
____________, 20__, respectively, shall be deemed to be approved by National
Collegiate Funding for purposes of the definition of Issuer Information
and
consented to for purposes of the definition of Permitted Additional Materials.
“Underwriter Derived Information” shall refer to information of the type
described in clause (5) of such footnote 271 when prepared by an Underwriter.
“Permitted Additional Materials” shall mean information that is not ABS
Informational and Computational Materials and (A) that are referred to
in
Section 4(c)(6), (B) that constitute price, yield, weighted average life,
subscription or allocation information, or a trade confirmation, or (C)
otherwise with respect to which National Collegiate Funding has provided
written
consent to the Underwriter to include in a Free Writing Prospectus. As
used
herein with respect to any Free Writing Prospectus, “Pool Information” shall
mean the information with respect to the characteristics of the Financed
Student
Loans and administrative and servicing fees, as provided by or on behalf
of
National Collegiate Funding to the Underwriter at the time most recent
to the
date of such Free Writing Prospectus.
(4) All
Free
Writing Prospectuses provided to investors, whether or not filed with the
Commission, shall bear a legend including substantially the following
statement:
The
National Collegiate Funding LLC has filed a registration statement (including
a
prospectus) with the SEC for the offering to which this communication relates.
Before you invest, you should read the prospectus in that registration
statement
and other documents The National Collegiate Funding LLC has filed with
the SEC
for more complete information about The National Collegiate Funding LLC
and the
offering. You may get these documents for free by visiting XXXXX on the
SEC web
site at xxx.xxx.xxx. Alternatively, The National Collegiate Funding LLC,
any
underwriter or any dealer participating in the offering will arrange to
send you
the base prospectus if you request it by calling toll-free at
______________.
National
Collegiate Funding or any Underwriter shall have the right to require additional
specific legends or notations to appear on any Free Writing Prospectus,
the
right to require changes regarding the use of terminology and the right
to
determine the types of information appearing therein with the approval
of, in
the case of National Collegiate Funding, each Underwriter and, in the case
of
the Underwriters, National Collegiate Funding (which in either case shall
not be
unreasonably withheld).
(5) Each
Underwriter shall deliver to National Collegiate Funding and its counsel
prior
to the proposed date of first use thereof (i) any Free Writing Prospectus
prepared by that Underwriter that contains any Issuer Information (other
than a
Free Writing Prospectus that contains only preliminary terms of the Offered
Notes) and (ii) any Free Writing Prospectus prepared by that Underwriter
that
contains only a description of the final terms of the Offered Notes after
such
terms have been established for all classes of Offered Notes. To facilitate
filing to the extent required by this Agreement, all Underwriter Derived
Information shall be set forth in a document separate from the document
including Issuer Information. Notwithstanding the foregoing, the Underwriter
shall not be required to deliver any Free Writing Prospectus to National
Collegiate Funding to the extent that it does not contain substantive changes
from or additions to any Free Writing Prospectus previously approved by
National
Collegiate Funding.
(6) Each
Underwriter may send the information contained in Bloomberg screens and
Intex,
cdi files to potential investors in the Offered Notes. In connection therewith,
the Underwriter shall not provide any information constituting Issuer
Information through the foregoing media unless that information is or will
be
contained either in the Definitive Free Writing Prospectus or in a Free
Writing
Prospectus delivered in compliance with Section 4(c)(5), above.
(d) Each
Underwriter covenants with National Collegiate Funding that after the Prospectus
is available such Underwriter shall not distribute any written information
concerning the Offered Notes to a investor unless such information is preceded
or accompanied by the Prospectus or by notice to the investor that the
Prospectus is available for free by visiting XXXXX on the SEC website at
xxx.xxx.xxx. The use of written information in accordance with the preceding
sentence is not a Free Writing Prospectus and is not otherwise restricted
or
governed in any way by this Agreement.
(e) Each
Underwriter shall deliver to National Collegiate Funding, not less than
one
business day prior to the required date of filing thereof, all information
included in a Free Writing Prospectus prepared by such Underwriter required
to
be filed with the Commission under the Act.
(f) Each
Underwriter further agrees that (i) if the Prospectus is not delivered
with or
preceding delivery of the confirmation in reliance on Rule 172, it will
include
in every confirmation sent out the notice required by Rule 173 informing
the
investor that the sale was made pursuant to the Registration Statement
and that
the investor may request a copy of the Prospectus from such Underwriter;
(ii) if
a paper copy of the Prospectus is requested by a person who receives a
confirmation, such Underwriter shall deliver a paper copy of such Prospectus;
(iii) if an electronic copy of the Prospectus is delivered by an Underwriter
for
any purpose, such copy shall be the same electronic file containing the
Prospectus in the identical form transmitted electronically to such Underwriter
by or on behalf of National Collegiate Funding specifically for use by
such
Underwriter pursuant to this Section 4(f). Each Underwriter further agrees
that
(i) if it delivers to an investor the Prospectus in .pdf format, upon such
Underwriter’s receipt of a request from the investor within the period for which
delivery of the Prospectus is required, such Underwriter will promptly
deliver
or cause to be delivered to the investor, without charge, a paper copy
of the
Prospectus and (ii) it will provide to National Collegiate Funding any
Free
Writing Prospectuses, or portions thereof, prepared by it which National
Collegiate Funding is required to file with the Commission in electronic
format
and will use reasonable efforts to provide to National Collegiate Funding
such
Free Writing Prospectuses, or portions thereof, in either Microsoft Word® or
Microsoft Excel® format and not in .pdf format, except to the extent that
National Collegiate Funding, in its sole discretion, waives such
requirements.
(g) Each
Underwriter hereby represents and agrees that:
(1) it
has
not offered or sold, and prior to the date which is six months after the
Closing
Date, will not offer or sell any Offered Notes to persons in the United
Kingdom
except to persons whose ordinary activities involve them in acquiring,
holding,
managing, or disposing of investments (as principal or agent) for the purposes
of their businesses or otherwise in circumstances which have not resulted
and
will not result in an offer to the public in the United Kingdom within
the
meaning of the Public Offers of Securities Regulations 1995, as amended
(the
“Regulations”)
and
the Financial Services and Markets Act 2000, as amended (the “FSMA”);
(2) it
has
only communicated or caused to be communicated and will only communicate
or
cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the FSMA) received by it
in
connection with the issue or sale of any Offered Notes in circumstances
in which
Section 21(1) of the FSMA does not apply to the Trust and shall procure
that the
Offered Notes offered or sold by it and its affiliates are not offered
or sold
in the United Kingdom other than to persons authorised under the FSMA or
to
persons otherwise having professional experience in matters relating to
investments and qualifying as investment professionals under Article 19
of the
Financial Services and Markets Act 2000 (Financial Promotion) Order 2001,
as
amended or to persons qualifying as high net worth persons under Article
49 of
that Order or, if distributed in the United Kingdom by authorised persons,
only
to persons qualifying as investment professionals under Article 14 of the
Financial Services and Markets Act 2000 (Promotion of Collective Investment
Schemes) (Exemptions) Order 2001 (“CIS
Order”)
or to
persons qualifying as high net worth persons under Article 22 of the CIS
Order
or to any other person to whom the Offered Notes may otherwise lawfully
be
offered or to whom such invitation or inducement to engage in investment
activity in connection with the issue or sale of the Offered Notes may
otherwise
lawfully be communicated or caused to be communicated;
(3) it
has
complied and will comply with all applicable provisions of the Regulations
and
the FSMA with respect to anything done by it in relation to the Offered
Notes
in, from or otherwise involving the United Kingdom; and
(4) after
the
Closing Date, it will provide National Collegiate Funding with a list of
all
foreign jurisdictions related to any written confirmations of sale of Offered
Notes it has sent.
(h) In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant
Member State”),
each
Underwriter represents and agrees with National Collegiate Funding that
with
effect from and including the date on which the Prospectus Directive is
implemented in that Relevant Member State (the “Relevant
Implementation Date”)
it has
not made and will not make an offer of Offered Notes to the public in that
Relevant Member State prior to the publication of a prospectus in relation
to
the Offered Notes which has been approved by the competent authority in
that
Relevant Member State or, where appropriate, approved in another Relevant
Member
State and notified to the competent authority in that Relevant Member State,
all
in accordance with the Prospectus Directive, except that it may, with effect
from and including the Relevant Implementation Date, make an offer of Offered
Notes to the public in that Relevant Member State at any time:
(i) to
legal
entities which are authorised or regulated to operate in the financial
markets
or, if not so authorised or regulated, whose corporate purpose is solely
to
invest in securities;
(ii) to
any
legal entity which has two or more of (1) an average of at least 250 employees
during the last financial year; (2) a total balance sheet of more than
€43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in
its last annual or consolidated accounts; or
(iii) in
any
other circumstances which do not require the publication by the issuer
of a
prospectus pursuant to Article 3 of the Prospectus Directive.
(2) For
the
purposes of this Section 4(h), (A) the expression an “offer of Notes to the
public” in relation to any Offered Notes in any Relevant Member State means the
communication in any form and by any means of sufficient information on
the
terms of the offer and the Offered Notes so as to enable an investor to
decide
to purchase or subscribe the Offered Notes, as the same may be varied in
that
Member State by any measure implementing the Prospectus Directive in that
Member
State, (B) the expression “Prospectus Directive” means Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant Member State
and (C)
the countries comprising the “European Economic Area” are Austria, Belgium,
Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece,
Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands,
Poland, Portugal, Slovak Republic, Slovenia, Spain, Sweden, United Kingdom,
Iceland, Liechtenstein and Norway.
(i) Each
Underwriter shall maintain written or electronic records of the time and
manner
that any disclosure materials (including the Prospectus, Prospectus Supplement,
Definitive Free Writing Prospectus, Term Sheet or any Free Writing Prospectus)
were conveyed to investors at or prior to the Contract of Sale to the extent
required by the Act. In addition, each of the Underwriters and National
Collegiate Funding shall, for a period of at least (3) three years after
the
date hereof, maintain written and/or electronic records of any Free Writing
Prospectus used to the extent not filed with the
Commission.
5. Agreements
of National Collegiate Funding.
National
Collegiate Funding agrees with each of the Underwriters as
follows:
(a) National
Collegiate Funding will prepare a supplement to the Prospectus setting
forth the
amount of the Offered Notes covered thereby and the terms thereof not otherwise
specified in the Prospectus, the price at which the Offered Notes are to
be
purchased by the Underwriters, either the initial public offering price
or the
method by which the price at which the Offered Notes are to be sold will
be
determined, the selling concessions and reallowances, if any, and such
other
information as the Underwriters and National Collegiate Funding deem appropriate
in connection with the offering of the Offered Notes, and National Collegiate
Funding will timely file such supplement to the Prospectus with the SEC
pursuant
to Rule 424(b) under the Act, but National Collegiate Funding will not
file any
amendments to the Registration Statement as in effect with respect to the
Offered Notes or any amendments or supplements to the Prospectus, unless
it
shall first have delivered copies of such amendments or supplements to
the
Underwriters, with reasonable opportunity to comment on such proposed amendment
or supplement or if the Underwriters shall have reasonably objected thereto
promptly after receipt thereof; National Collegiate Funding will immediately
advise the Underwriters or the Underwriters’ counsel (i) when notice is received
from the SEC that any post-effective amendment to the Registration Statement
has
become or will become effective and (ii) of any order or communication
suspending or preventing, or threatening to suspend or prevent, the offer
and
sale of the Offered Notes or of any proceedings or examinations that may
lead to
such an order or communication, whether by or of the SEC or any authority
administering any state securities or Blue Sky law, as soon as National
Collegiate Funding is advised thereof, and will use its best efforts to
prevent
the issuance of any such order or communication and to obtain as soon as
possible its lifting, if issued.
(b) National
Collegiate Funding shall file any Free Writing Prospectus prepared by National
Collegiate Funding (including the Definitive Free Writing Prospectus and
the
Term Sheet), and any Issuer Information contained in any Free Writing Prospectus
provided to it by each Underwriter under Section 4(c)(5), not later than
the
date of first use of the Free Writing Prospectus, except
that:
(1) Any
Free
Writing Prospectus or portion thereof that contains only (A) a description
of
the final terms of the Offered Notes after such terms have been established
for
all classes of Offered Notes shall be filed by National Collegiate Funding
within two days of the later of the date such final terms have been established
for all classes of Offered Notes and the date of first use and (B) a description
of the terms of the Offered Notes that does not reflect the final terms
after
they have been established for all classes of all Offered Notes is not
required
to be filed; and
(2) Notwithstanding
clause (1) above, any Free Writing Prospectus or portion thereof required
to be
filed that contains only information of a type included within the definition
of
ABS Informational and Computational Materials, shall be filed by National
Collegiate Funding within the later of two business days after the Underwriter
first provides this information to investors and the date upon which National
Collegiate Funding is required to file the Prospectus Supplement with the
Commission pursuant to Rule 424(b)(3) of the
Act.
provided
further, that prior to such use of any Free Writing Prospectuses by National
Collegiate Funding, the Underwriter must comply with its obligations pursuant
to
Section 4(c) and that National Collegiate Funding shall not be required to
file
any Free Writing Prospectus that does not contain substantive changes from
or
additions to a Free Writing Prospectus previously filed with the Commission.
National Collegiate Funding will not disseminate to any potential investor
any
information relating to the Offered Notes that constitutes a “written
communication” within the meaning of Rule 405 under the Act, other than the
Pricing Information Package and the Prospectus unless National Collegiate
Funding has obtained the prior consent of the Underwriters.
(c) If,
at
any time when the Prospectus relating to the Offered Notes is required to
be
delivered under the Act, any event occurs as a result of which the Prospectus
as
then amended or supplemented would include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
or
if it is necessary at any time to amend or supplement the Prospectus to comply
with the Act or the Rules and Regulations, National Collegiate Funding promptly
will notify each of the Underwriters of such event and will promptly prepare
and
file with the SEC, at its own expense, an amendment or supplement to such
Prospectus that will correct such statement or omission or an amendment that
will effect such compliance. Neither the Underwriters’ consent to, nor the
Underwriters’ delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 7
hereof.
(d) If,
subsequent to the Contract of Sale and at or prior to the Closing Date, National
Collegiate Funding determines or becomes aware or is advised by an Underwriter
that any Written Communication (including without limitation any Free Writing
Prospectus) or oral statement contains an untrue statement of material fact
or
omits to state a material fact necessary to make the statements, in light
of the
circumstances under which they were made, not misleading at the time that
a
Contract of Sale was entered into with any investor, when considered in
conjunction with all information conveyed at the time of Contract of Sale,
National Collegiate Funding shall immediately notify the Underwriters and
shall,
if requested by an Underwriter, prepare and deliver corrective information
approved by the Underwriters that corrects such misstatements or omissions
(“Corrective Information”) to the Underwriters. Each Underwriter dealing with an
investor who had received defective information shall deliver such Corrective
Information, to any person with whom a Contract of Sale was entered into
by that
Underwriter, and such information shall provide any such person with the
following:
(1) updated
or new disclosure that corrects the misstatements or omissions in the
information previously given;
(2) reformation
of the Contract of Sale; and
(3) an
ability to elect to terminate or not terminate the prior Contract of Sale
and to
elect to enter into or not enter into a new Contract of Sale,
each
as
consistent with the Underwriter’s good faith interpretation of the requirements
of Commission Release No. 33-8591.
After
the
preceding has been completed, the Corrective Information shall then be deemed
to
supplement the Definitive Free Writing Prospectus for all purposes of this
Agreement and the date of the Contract of Sale shall be deemed to be the
date
that the new Contracts of Sale were entered into. To the extent that the
Underwriter incurs any costs to the investor in connection with any such
termination or reformation of a Contract of Sale, National Collegiate Funding
shall reimburse the Underwriter for such costs except to the extent that
the
Corrective Information was of a type described under Section
11.
(e) National
Collegiate Funding will immediately inform the Underwriters (i) of the
receipt
by National Collegiate Funding of any communication from the Commission
or any
state securities authority concerning the offering or sale of the Offered
Notes,
and (ii) of the commencement of any lawsuit or proceeding to which National
Collegiate Funding is a party relating to the offering or sale of the Offered
Notes.
(f) National
Collegiate Funding will furnish to the Underwriters, without charge, copies
of
the Registration Statement (including all documents and exhibits thereto
or
incorporated by reference therein), the Prospectus, the Pricing Information
Package, and all amendments and supplements to such documents relating
to the
Offered Notes, in each case in such quantities as the Underwriters may
reasonably request.
(g) No
amendment or supplement will be made to the Registration Statement, the
Pricing
Information Package or Prospectus unless the Underwriters have both (i)
received
advance written notice thereof and (ii) not reasonably objected thereto
after
being so notified.
(h) National
Collegiate Funding will cooperate with the Underwriters and with their
counsel
in connection with the qualification of, or procurement of exemptions with
respect to, the Offered Notes for offering and sale by the Underwriters
and by
dealers under the securities or Blue Sky laws of such jurisdictions as
the
Underwriters may designate and will file such consents to service of process
or
other documents necessary or appropriate in order to effect such qualification
or exemptions; provided that in no event shall National Collegiate Funding
be
obligated to qualify to do business in any jurisdiction where it is not
now so
qualified or to take any action which would subject it to service of process
in
suits, other than those arising out of the offering or sale of the Offered
Notes, in any jurisdiction where it is not now so subject.
(i) National
Collegiate Funding consents to the use, in accordance with the securities
or
Blue Sky laws of such jurisdictions in which the Offered Notes are offered
by
the Underwriters and by dealers, of the Prospectus furnished by National
Collegiate Funding.
(j) To
the
extent, if any, that the rating or ratings provided with respect to the
Offered
Notes by the rating agency or agencies that initially rate the Offered
Notes is
conditional upon the furnishing of documents or the taking of any other
reasonable actions by National Collegiate Funding, National Collegiate
Funding
shall cause to be furnished such documents and such other actions to be
taken.
(k) So
long
as any of the Offered Notes are outstanding, National Collegiate Funding
will
furnish to the Underwriters (i) as soon as available, a copy of each document
relating to the Offered Notes required to be filed with the SEC pursuant
to the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any rule or
regulation thereunder, and (ii) such other information concerning National
Collegiate Funding as the Underwriters may request from time to
time.
(l) 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 9 or because
of the
occurrence of events specified in clauses (a) (ii), (iii) or (iv) of Section
10
hereof) or if this Agreement shall be terminated by the Underwriters because
of
any failure or refusal on the part of National Collegiate Funding to comply
with
the terms or fulfill any of the conditions of this Agreement, National
Collegiate Funding agrees to reimburse the Underwriters for all out-of-pocket
expenses (including fees and expenses of their counsel) reasonably incurred
by
it in connection herewith, but without any further obligation on the part
of
National Collegiate Funding for loss of profits or otherwise.
(m) The
net
proceeds from the sale of the Offered Notes hereunder will be applied
substantially in accordance with the description set forth in the
Prospectus.
(n) Except
as
stated in this Agreement and in the Prospectus, National Collegiate Funding
has
not taken, nor will it take, directly or indirectly, any action designed
to or
that might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Offered Notes to facilitate the sale or
resale
of the Offered Notes.
(o) For
a
period from the date of this Agreement until the retirement of the Offered
Notes, the Trust will deliver to the Underwriters the annual statements of
compliance and the annual independent certified public accountants’ reports
furnished to the Indenture Trustee or National Collegiate Funding pursuant
to
the Servicing Agreements as soon as such statements and reports are furnished
to
the Indenture Trustee or National Collegiate Funding.
(p) On
or
before the Closing Date, National Collegiate Funding shall mark its accounting
and other records, if any, relating to the Financed Student Loans and shall
cause the applicable Servicer to mark its computer records relating to the
Financed Student Loans to show the absolute ownership by the Trustee, of,
and
the interest of the Trust in, the Financed Student Loans, and National
Collegiate Funding shall not take, and shall not permit any other person
to
take, any action inconsistent with the ownership of, and the interest of
the
Trust in, the Financed Student Loans, other than as permitted by the Basic
Documents.
(q) If,
at
the time the Registration Statement became effective, any information shall
have
been omitted therefrom in reliance upon Rule 430A, B or C under the Act,
then,
immediately following the execution of this Agreement, National Collegiate
Funding will prepare, and file or transmit for filing with the Commission
in
accordance with such Rule 430A and Rule 424(b) under the Act, copies of an
amended Prospectus containing all information so omitted.
(r) As
soon
as practicable, but not later than 16 months after the date of this Agreement,
the Trust 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 Trust’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.
(s) National
Collegiate Funding will cooperate with the Underwriters in listing and
maintaining the Offered Notes on the Irish Stock Exchange.
(t) National
Collegiate Funding acknowledges and agrees that:
(1) the
Underwriters have been retained solely to act as underwriters in connection
with
the sale of the Offered Notes and that no fiduciary, advisory or agency
relationship between National Collegiate Funding and the Underwriters have
been
created in respect of any of the transactions contemplated by this Agreement,
irrespective of whether the Underwriters have advised or are advising National
Collegiate Funding on other matters;
(2) the
prices of the Offered Notes set forth in this Agreement were established
by
National Collegiate Funding following discussions and arms-length negotiations
with the Underwriters and National Collegiate Funding is capable of evaluating
and understanding and understands and accepts the terms, risks and conditions
of
the transactions contemplated by this Agreement;
(3) it
has
been advised that the Underwriters and their affiliates are engaged in
a broad
range of transactions which may involve interests that differ from those
of
National Collegiate Funding and that the Underwriters have no obligation
to
disclose such interests and transactions to National Collegiate Funding
by
virtue of any fiduciary, advisory or agency relationship; and
(4) it
waives, to the fullest extent permitted by law, any claims it may have
against
the Underwriters for breach of fiduciary duty or alleged breach of fiduciary
duty and agrees that the Underwriters shall have no liability (whether
direct or
indirect) to National Collegiate Funding in respect of such a fiduciary
duty
claim or to any person asserting a fiduciary duty claim on behalf of or
in right
of National Collegiate Funding, including stockholders, employees or creditors
of National Collegiate Funding.
6. Indemnification
and Contribution. (a)
Each of
National Collegiate Funding and FMC agrees to indemnify and hold harmless
each
of the Underwriters and each person, if any, who controls an Underwriter
within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from
and
against any and all losses, claims, damages, liabilities and expenses (or
actions in respect thereof) arising out of or based upon any untrue statement
or
alleged untrue statement of a material fact contained in (i) the Registration
Statement, the Prospectus or in any amendment or supplement thereto, 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, (ii) the Pricing Information Package 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 or (iii) any Issuer Information contained in a Free Writing
Prospectus permitted under this Agreement 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, xxxxxxxxx, 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 National Collegiate Funding or FMC 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 11 of this Agreement; provided,
however,
that
the indemnification contained in this paragraph (a) with respect to the Pricing
Information Package or Issuer Information shall not inure to the benefit
of an
Underwriter (or to the benefit of any person controlling an Underwriter)
on
account of any such loss, claim, damage, liability or expense arising from
the
sale of the of Offered Notes by an Underwriter to any person if the untrue
statement or alleged untrue statement or omission or alleged omission of
a
material fact contained in the Pricing Information Package or Issuer Information
was corrected in Corrective Information which supersedes or supplements the
Pricing Information Package, and such Underwriter sold Offered Notes to that
person without sending or giving at or prior to the written confirmation
of such
sale or of any reformation of contract of such sale, as applicable, a copy
of
any Corrective Information which supersedes or supplements the Pricing
Information Package if National Collegiate Funding or FMC has furnished
sufficient copies thereof to such Underwriter at a time reasonably prior
to the
date such Offered Notes were sold to such person. The foregoing indemnity
agreement shall be in addition to any liability which National Collegiate
Funding may otherwise have.
(b) Each
of
National Collegiate Funding and FMC will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in
respect thereof) arise out of or are based upon failure of National Collegiate
Funding, in its capacity as the depositor of the Trust, to maintain its status
as an eligible issuer within the meaning of Rule 405 under the Act as of
the
date hereof or as of the time set forth in Rule 164(h)(2) of the Act or its
failure to file any Free Writing Prospectus with the Commission in accordance
with Rules 164 and 433 under the Act and will reimburse each Underwriter
for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses
are
incurred.
(c) If
any
action, suit or proceeding shall be brought against an Underwriter or any
person
controlling an Underwriter in respect of which indemnity may be sought against
National Collegiate Funding or FMC, such Underwriter or such controlling
person
shall promptly notify the parties against whom indemnification is being sought
(the “indemnifying parties”), but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party under Sections 6(a), 6(b) and 6(d) hereof, except to the
extent that the indemnifying party is materially prejudiced by such omission,
and in no event shall the omission so to notify relieve National Collegiate
Funding or FMC from any liability which it may otherwise have. In case any
such
action is brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to
participate therein and, to the extent that it may wish, jointly with any
other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with
the
consent of the indemnified party, be counsel to the indemnifying party).
The
applicable Underwriter or any such controlling person shall have the right
to
employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person unless
(i) the indemnifying parties have agreed in writing to pay such fees and
expenses, (ii) the indemnifying parties have failed to assume the defense
and
employ counsel, or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both the Underwriter
or
such controlling person and the indemnifying parties and the Underwriter
or such
controlling person shall have been advised by its counsel that there may
be one
or more legal defenses available to it which are different from or additional
to
or in conflict with those available to the indemnifying parties and in the
reasonable judgment of such counsel it is advisable for the Underwriter or
such
controlling person to employ separate counsel (in which case the indemnifying
party shall not have the right to assume the defense of such action, suit
or
proceeding on behalf of the Underwriter or such controlling person). It is
understood, however, that the indemnifying parties shall, in connection with
any
one such action, suit or proceeding or separate but substantially similar
or
related actions, suits or proceedings in the same jurisdiction arising out
of
the same general allegations or circumstances, be liable for the reasonable
fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for each Underwriter and controlling persons not having
actual or potential differing interests with such Underwriter or among
themselves, which firm shall be designated in writing by such Underwriter,
and
that all such fees and expenses shall be reimbursed on a monthly basis as
provided in paragraph (a) hereof. An indemnifying party will not, without
the
prior written consent of the indemnified party, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual
or
potential parties to such claim or action) unless such settlement, compromise
or
consent (i) includes an unconditional release of each indemnified party from
all
liability arising out of such claim, action, suit or proceeding and (ii)
does
not include a statement as to, or an admission of fault, culpability or a
failure to act by or on behalf of an indemnified party.
(d) Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
National Collegiate Funding and each of its directors and officers, and any
person who controls National Collegiate Funding within the meaning of Section
15
of the Act or Section 20 of the Exchange Act, to the same extent as the
indemnity from National Collegiate Funding to the Underwriters set forth
in
paragraph (a) hereof, but only (i) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
information furnished in writing by such Underwriter expressly for use in
the
Registration Statement, the Prospectus, the Pricing Information Package,
or any
amendment or supplement thereto, 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, it being understood
that the only such information furnished by any Underwriter consists of the
information described as such in Section 11 of this Agreement and (ii) arising
out of or based upon any untrue statement or alleged untrue statement of
a
material fact contained in any Free Writing Prospectus not constituting an
“issuer free writing prospectus” (as defined in Rule 433 (h)(1) under the Act)
and used by such indemnifying Underwriter, or arising out of or based upon
any
omission or alleged omission to state therein a material fact necessary in
order
to make the statements therein not misleading (except to the extent such
untrue
statement or omission or alleged untrue statement or omission in such Free
Writing Prospectus (y) is based upon or results from errors, mistakes or
omissions in information provided by National Collegiate Funding to the
Underwriters and/or (z) is contained in any Free Writing Prospectus approved
by
National Collegiate Funding). If any action, suit or proceeding shall be
brought
against National Collegiate Funding, any of its directors or officers, or
any
such controlling person based on the Registration Statement, the Prospectus,
the
Pricing Information Package, or any amendment or supplement thereto, or any
Free
Writing Prospectus not constituting an “issuer free writing prospectus” (as
defined in Rule 433(h)(1) under the Act) and in respect of which indemnity
may
be sought against an Underwriter pursuant to this paragraph (d), such
Underwriter shall have the rights and duties given to National Collegiate
Funding by paragraph (c) above (except that if National Collegiate Funding
shall
have assumed the defense thereof the Underwriter shall have the option to
assume
such defense but shall not be required to do so, but may employ separate
counsel
therein and participate in the defense thereof, but the fees and expenses
of
such counsel shall be at such Underwriter’s expense), and National Collegiate
Funding, its directors and officers, and any such controlling person shall
have
the rights and duties given to the Underwriters by paragraph (c) above. The
foregoing indemnity agreement shall be in addition to any liability which
the
Underwriters may otherwise have.
(e) If
the
indemnification provided for in this Section 6 is unavailable to an indemnified
party under paragraphs (a), (b) or (d) hereof in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then an indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to
the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by National Collegiate
Funding on the one hand and the applicable Underwriter on the other hand
from
the offering of the Offered Notes, or (ii) if the allocation provided by
clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i)
above but also the relative fault of National Collegiate Funding on the one
hand
and the applicable Underwriter on the other in connection with the statements
or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by National Collegiate Funding on the one hand and an
Underwriter on the other shall be deemed to be in the same proportion as
the
total net proceeds from the offering of the Offered Notes (before deducting
expenses) received by the Trust and National Collegiate Funding bear to the
total underwriting discounts and commissions received by such Underwriter.
The
relative fault of National Collegiate Funding on the one hand and the
Underwriters on the other hand shall be determined by reference to, among
other
things, whether the untrue or alleged untrue statement of a material fact
or the
omission or alleged omission to state a material fact relates to information
supplied by National Collegiate Funding on the one hand or by an Underwriter
on
the other hand and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(f) National
Collegiate Funding and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6 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 (e) 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 (e) 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 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by such Underwriter with
respect
to the Offered Notes underwritten by such Underwriter exceed the sum of the
amount of any damages which such Underwriter has otherwise been required
to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission and the amount of any damages such Underwriter has been required
to pay
under the Indemnity Agreement dated as of the date hereof among FMC and the
Underwriters. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations in this paragraph (f) to contribute are several in
proportion to their respective underwriting obligations.
(g) Any
losses, claims, damages, liabilities or expenses for which an indemnified
party
is entitled to indemnification or contribution under this Section 6 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 6 and the representations and warranties
of
National Collegiate Funding and the Underwriters set forth in this Agreement
shall remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of the Underwriters, National Collegiate
Funding or any person controlling any of them or their respective directors
or
officers, (ii) acceptance of any Offered Notes and payment therefor hereunder,
and (iii) any termination of this Agreement. A successor to the Underwriters,
National Collegiate Funding or any person controlling any of them or their
respective directors or officers, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
6.
7. Conditions
of the Underwriters’ Obligations.
The
obligations of the Underwriters hereunder to purchase the Offered Notes shall
be
subject to the accuracy of the representations and warranties on the part
of
National Collegiate Funding contained herein as of the date hereof and as
of the
Closing Date, to the accuracy of the statements of National Collegiate Funding
made in any certificates delivered pursuant to the provisions hereof, to
the
performance by National Collegiate Funding of its obligations hereunder and
to
the following additional conditions:
(a) All
actions required to be taken and all filings required to be made by National
Collegiate Funding under the Act prior to the sale of the Offered Notes shall
have been duly taken or made. At and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or,
to the
best knowledge of National Collegiate Funding or the Underwriters, shall
be
contemplated by the Commission.
(b) Subsequent
to the date of this Agreement, there shall not have occurred (i) any change,
or
any development or event involving a prospective change, in or affecting
the
condition (financial or other), business, properties, net worth, or results
of
operations of National Collegiate Funding, the Trust, any Servicer or FMC
not
contemplated by the Registration Statement, the Pricing Information Package
and
the Prospectus, which in the opinion of the Underwriters, would materially
adversely affect the market for the Offered Notes, (ii) any downgrading in
the
rating of any debt securities of trusts sponsored by National Collegiate
Funding, any Servicer or FMC by any nationally recognized statistical rating
organization or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of trusts sponsored
by
National Collegiate Funding, any Servicer or FMC (other than an announcement
with positive implications of a possible upgrading, and no implication of
a
possible downgrading, of such rating), or (iii) any event or development
which
makes any statement made in the Registration Statement, the Pricing Information
Package or Prospectus untrue or which, in the opinion of National Collegiate
Funding and its counsel or the Underwriters and their counsel, requires any
amendment to or change in the Registration Statement, the Pricing Information
Package 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, the
Pricing
Information Package or Prospectus to reflect such event or development would,
in
the opinion of the Underwriters, materially adversely affect the market for
the
Offered Notes.
(c) The
Administrator shall have delivered to you a certificate, signed by an authorized
signatory and dated the Closing Date, to the effect that the signer of such
certificate has carefully examined the Basic Documents, the Pricing Information
Package and the Prospectus and that to the best of such signer’s knowledge: (x)
the representations and warranties in the Basic Documents of the Trust are
true
and correct in all material respects at and as of the Closing Date with the
same
effect as if made on the Closing Date and (y) the Trust has complied with
all
the agreements and satisfied all the conditions on its part to be performed
or
satisfied at or prior to the Closing Date.
(d) National
Collegiate shall have delivered to you a certificate, signed by an authorized
signatory and dated the Closing Date, to the effect that the signer of such
certificate has carefully examined the Basic Documents, the Pricing Information
Package and the Prospectus and that to the best of such signer’s knowledge: (x)
the representations and warranties in the Basic Documents of National Collegiate
are true and correct in all material respects at and as of the Closing Date
with
the same effect as if made on the Closing Date and (y) National Collegiate
has
complied with all the agreements and satisfied all the conditions on its
part to
be performed or satisfied at or prior to the Closing Date.
(e) You
shall
have received opinions addressed to you of _______________ and ______________,
in their capacity as counsel to the Trust, FMC, National Collegiate Funding
and
the Administrator, as applicable, dated the Closing Date, in form and substance
satisfactory to you and your counsel with respect to the status of the Trust,
FMC and the Administrator, to each of the Basic Documents to which FMC, the
Administrator and the Trust is a party and to the validity of the Offered
Notes
and such related matters as you shall reasonably request. In addition, you
shall
have received opinions addressed to you of ______________ in form and substance
satisfactory to you and your counsel, concerning “true sale”, “first perfected
security interest” and “non-consolidation”, and certain other issues with
respect to the transfer of the Financed Student Loans from each Loan Originator
to National Collegiate Funding, from National Collegiate Funding to the Trust
and from the Trust to the Indenture Trustee.
(f) You
shall
have received an opinion addressed to you of ______________, dated the Closing
Date, in form and substance satisfactory to you and your counsel to the effect
that the statements in the Prospectus and the Pricing Information Package
under
the headings “U.S. Federal Income Tax Consequences” and “ERISA Considerations”,
to the extent that they constitute statements of matters of law or legal
conclusions with respect thereto, have been prepared or reviewed by such
counsel
and are correct in all material respects.
(g) You
shall
have received an opinion addressed to you of ______________, dated the Closing
Date, in form and substance satisfactory to you and your counsel with respect
to
the character of the Offered Notes for federal tax purposes.
(h) You
shall
have received from ______________, a favorable opinion in form reasonably
satisfactory to you and dated the Closing Date:
(1) with
respect to the Prospectus and the Pricing Information Package 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;
(2) to
the
effect that no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United
States is required for the issuance of the Offered Notes and the sale of
the
Offered Notes to you, or the consummation by the Trust of the other transactions
contemplated by the Basic Documents.
(3) to
the
effect that nothing has come to their attention in the course of their
examination of the Registration Statement, the Pricing Information Package
and
the Prospectus or in their discussions or otherwise which would lead them
to
believe that the Registration Statement, the Pricing Information Package
and the
Prospectus (except as to financial or statistical data contained therein
and the
information set forth under the headings “The Servicers” and “The Student Loan
Guarantor”) contained an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the Registration Statement,
the
Pricing Information Package and the Prospectus not misleading.
(i) You
shall
have received an opinion addressed to you of ______________, in its capacity
as
your counsel, dated the Closing Date, in form and substance satisfactory
to
you.
(j) You
shall
have received an opinion addressed to you of Xxxxxxxx, Xxxxxx and Xxxxxx,
P.A.,
counsel to the Trustee, in form and substance satisfactory to you and your
counsel.
(k) You
shall
have received an opinion addressed to you of in-house counsel to PHEAA,
in form
and substance satisfactory to you and your counsel.
(l) You
shall
have received an opinion addressed to you of in-house counsel to XXXX,
in form
and substance satisfactory to you and your counsel.
(m) You
shall
have received opinions addressed to you of Xxxxx Xxxxxxx, LLP, counsel
to the
Indenture Trustee and the Back-up Administrator, dated the Closing Date
and in
form and substance satisfactory to you and your
counsel.
(n) You
shall
have received certificates addressed to you dated the Closing Date of any
one of
the Chairman of the Board, the President, any Executive Vice President,
Senior
Vice President or Vice President, the Treasurer, any Assistant Treasurer,
the
principal financial officer or the principal accounting officer of each
of PHEAA
and XXXX in which such officer shall state that, to the best of such officer’s
knowledge after reasonable investigation, that such officer has reviewed
the
Prospectus and that the information therein regarding PHEAA, or XXXX, as
applicable, is fair and accurate in all material respects.
(o) You
shall
have received evidence satisfactory to you that within ten days of the
Closing
Date UCC-1 financing statements will be filed in the office of the Secretary
of
State of the State of Delaware and the Commonwealth of Massachusetts, reflecting
the grant of the security interest by the Trust in the Financed Student
Loans
and the proceeds thereof to the Indenture Trustee.
(p) All
the
representations and warranties of the Trust, FMC, National Collegiate Funding,
and the Administrator contained in this Agreement and the Basic Documents
shall
be true and correct in all material respects on and as of the date hereof
and on
and as of the Closing Date as if made on and as of the Closing Date and
the
Underwriters shall have received a certificate, dated the Closing Date
and
signed by an executive officer of FMC, National Collegiate Funding and
the
Administrator to such effect.
(q) National
Collegiate Funding and the Trust 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) (i)
The
Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, Class
A-5
Notes and Class A-IO Notes shall be rated in the highest rating category
of at
least two of the following three rating agencies: Fitch, Inc. (“Fitch”),
Standard & Poor’s Ratings Services, a Division of The XxXxxx-Xxxx Companies,
Inc. (“S&P) and Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) (each of Fitch,
S&P and Xxxxx’x, a “Rating Agency” and collectively, the “Rating Agencies”),
(ii) the Class B Notes shall be rated in one of the two highest rating
categories of at least two of the three Rating Agencies, (c) the Class
C Notes
shall be rated in one of the three highest rating categories of at least
two of
the three Rating Agencies and (d) the Class D Notes shall be rated in one
of the
four highest ratings categories of at least two of the three Rating
Agencies.
(s) You
shall
have received certificates dated the Closing Date from officers of FMC,
National
Collegiate Funding and the Administrator addressing such additional matters
as
you may reasonably request in form and substance satisfactory to you and
your
counsel.
(t) You
shall
have received such other opinions, certificates and documents as are required
under the Indenture as a condition to the issuance of the Offered
Notes.
(u) You
shall
have received from each Servicer an officer’s certificate in form and substance
satisfactory to you and your counsel.
(v) You
shall
have received a signed Indemnity Agreement from FMC in
form
and substance satisfactory to you and your counsel.
(w) You
shall
have received from ______________, accountants to National Collegiate Funding,
a
letter dated the Closing Date, and in form and substance satisfactory to
the
Underwriters, to the effect that they have carried out certain specified
procedures, not constituting an audit, with respect to certain information
in
the Pricing Information Package and the Prospectus regarding the Financed
Student Loans and setting forth the results of such specified
procedures.
(x) You
shall
have received from ______________, accountants to XXXX, a letter dated
the
Closing Date, and in form and substance satisfactory to the Underwriters,
to the
effect that they have carried out certain specified procedures, not constituting
an audit, with respect to certain information in the Pricing Information
Package
and the Prospectus regarding the unaudited financial information of XXXX
and
setting forth the results of such specified procedures.
(y) You
shall
have received from the Indenture Trustee a certificate stating that any
information contained in the Statement of Eligibility and Qualification
(Form
T-1), filed with the Registration Statement, is true, accurate and
complete.
If
any of
the conditions specified in this Section 7 shall not have been fulfilled
in all
material respects when and as provided in this Agreement, if National Collegiate
Funding is in breach of any covenants or agreements contained herein or
if any
of the opinions and certificates referred to above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory
in form
and substance to you and your counsel, this Agreement and all your obligations
hereunder may be canceled by you at, or at any time prior to, the Closing
Date
without liability of any party to any other party except as provided in
Section
10(b). Notice of such cancellation shall be given to National Collegiate
Funding
in writing, or by telephone or facsimile transmission confirmed in
writing.
The
obligation of National Collegiate Funding to sell and to cause the Trust
to sell
the Offered Notes to you shall be subject to: (i) the accuracy of your
representations and warranties herein contained at and as of the Closing
Date,
and (ii) your performance of all your obligations hereunder to be performed
at
or prior to the Closing Date.
8. Expenses.
National
Collegiate Funding agrees to pay or to otherwise cause the payment of the
following costs and expenses and all other costs and expenses incident
to the
performance by it of its obligations hereunder: (i) the preparation, printing
or
reproduction of the Registration Statement, the Prospectus, the Pricing
Information Package 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,
the
Pricing Information Package and all amendments or supplements to, and
preliminary versions of, any of them as may be reasonably requested for
use in
connection with the offering and sale of the Offered Notes; (iii) the
preparation, printing, authentication, issuance and delivery of definitive
certificates for the Offered Notes; (iv) the printing (or reproduction)
and
delivery of this Agreement, the preliminary and supplemental Blue Sky Memoranda
and all other agreements or documents printed (or reproduced) and delivered
in
connection with the offering of the Offered Notes; (v) qualification of
the
Indenture under the Trust Indenture Act; (vi) the fees and disbursements
of (A)
the Trust’s counsel, (B) the Indenture Trustee and Back-up Administrator and
their counsel, (C) the Trustee and its counsel, (D) the Depository Trust
Company
in connection with the book-entry registration of the Offered Notes, (E)
______________ and ______________; (vii) the fees charged by each of the
rating
agencies for rating the Offered Notes, and (viii) the fees and expenses
for
listing the Offered Notes on the Irish Stock
Exchange.
9. Effective
Date of Agreement. This
Agreement shall be deemed effective as of the date first above written upon
the
execution and delivery hereof by all the parties hereto. Until such time
as this
Agreement shall have become effective, it may be terminated by National
Collegiate Funding, by notifying each of the Underwriters, or by the
Underwriters, by notifying National Collegiate Funding.
Any
notice under this Section 9 may be given by telecopy or telephone but shall
be
subsequently confirmed by letter.
10. Termination. (a)
This
Agreement shall be subject to termination in the Underwriters’ absolute
discretion by notice given to National Collegiate Funding prior to delivery
of
and payment for the Offered Notes, if prior to such time, (i) there shall
have
occurred any adverse change, or any development involving a prospective adverse
change, in or affecting particularly the business, assets or properties of
National Collegiate Funding, XXXX, the Trust, or any of their affiliates;
(ii)
trading of securities generally on the New York Stock Exchange or the American
Stock Exchange shall have been suspended or materially limited; (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or New York State authorities or a material disruption
in
commercial banking or securities settlement or clearance services in the
United
States shall have occurred; or (iv) there shall have occurred any material
outbreak, escalation or declaration of hostilities or other calamity or crisis
or any material change in the financial, political, or economic conditions
in
the United States or elsewhere, the effect of which on the financial markets
of
the United States or of the European Union is such as to make it, in the
Underwriters’ judgment, impracticable to market the Offered Notes on the terms
and in the manner contemplated in the Prospectus.
(b) If
the
sale of the Offered Notes shall not be consummated because any condition
to your
obligations set forth in Section 7 is not satisfied or because of any refusal,
inability or failure on the part of National Collegiate Funding to perform
any
agreement herein or comply with any provision hereof other than by reason
of
your default, National Collegiate Funding shall reimburse you for the reasonable
fees and expenses of your counsel and for such other out-of-pocket expenses
as
shall have been incurred by you in connection with this Agreement and the
proposed purchase of the Offered Notes, and upon demand National Collegiate
Funding shall pay the full amount thereof to you.
(c) This
Agreement will survive delivery of and payment for the Offered Notes. The
provisions of Section 6 and this Section 10 shall survive the termination
or
cancellation of this Agreement.
11. Information
Furnished by the Underwriters.
The only
information furnished by or on behalf of an Underwriter as such information
is
referred to in Sections 3(b) and 6 hereof is the statements related to
such
Underwriter set forth in the table and the ___________, __________ and
__________ paragraphs under the heading “Underwriting” in the Prospectus
Supplement and the Pricing Information Package.
12. Default
by One of the Underwriters.
If any
of the Underwriters shall fail on the Closing Date to purchase the Offered
Notes
which it is obligated to purchase hereunder (the “Defaulted Securities”), the
remaining Underwriters (the “Non-Defaulting Underwriters”) shall have the right,
but not the obligation, within one (1) Business Day thereafter, to make
arrangements to purchase all, but not less than all, of the Defaulted Securities
upon the terms herein set forth; if, however, the Non-Defaulting Underwriters
shall have not completed such arrangements within such one (1) Business
Day
period, then this Agreement shall terminate without liability on the part
of the
Non-Defaulting Underwriters.
No
action
taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In
the
event of any such default which does not result in a termination of this
Agreement, either the Non-Defaulting Underwriters or National Collegiate Funding
shall have the right to postpone the Closing Date for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements.
13. Survival
of Representations and Warranties.
The
respective indemnities, agreements, representations, warranties and other
statements of National Collegiate Funding or its officers and of the
Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, regardless of any investigation
or
statement as to the results thereof, made by or on behalf of the Underwriters,
National Collegiate Funding or any of their respective representatives,
officers
or directors or any controlling person, and will survive delivery of and
payment
for the Offered Notes.
14. Miscellaneous.
Except
as otherwise provided in Sections 6, 9 and 10 hereof, notice given pursuant
to
any provision of this Agreement shall be in writing and shall be delivered
(i)
if to National Collegiate Funding, at The Prudential Tower, 000 Xxxxxxxx
Xxxxxx,
00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000, Attention: Controller; with
a copy
to First Marblehead Corporation, The Prudential Tower, 000 Xxxxxxxx Xxxxxx,
00xx
Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000 Attn: Xxxxxxx Xxxxx, (ii) if to
FMC, at
The Prudential Tower, 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000-0000, Attention: Controller; with a copy to First Marblehead Corporation,
The Prudential Tower, 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000-0000 Attn: Xxxxxxx Xxxxx, and (iii) if to the Underwriters, to the
address
of the respective Underwriter set forth above.
This
Agreement has been and is made solely for the benefit of the Underwriters,
National Collegiate Funding, the Trust, their respective directors, officers,
managers, trustees and controlling persons referred to in Section 6 hereof
and
their respective successors and assigns, to the extent provided herein, and
no
other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term “successor” nor the term “successors and assigns” as
used in this Agreement shall include a purchaser from an Underwriter of any
of
the Offered Notes in his status as such purchaser.
15. Applicable
Law; Counterparts.
This
agreement shall be governed by and construed in accordance with the internal
laws of the State of New York, without regard to the principles of conflicts
of
laws thereof or of any other jurisdiction (other than sections 5-1401 and
5-1402
of the New York General Obligations Law), and the obligations, rights and
remedies of the parties under this agreement shall be determined in accordance
with such laws. This Agreement may be executed in any number of counterparts,
each of which shall for all purposes be deemed to be an original and all
of
which shall together constitute but one and the same instrument.
16. Waiver
of Jury Trial.
National
Collegiate Funding and each of the Underwriters hereby irrevocably waives,
to
the fullest extent permitted by applicable law, any and all right to trial
by
jury in any legal proceeding arising out of or relating to this Agreement
or the
transactions contemplated hereby.
[Signature
page follows]
Please
confirm the foregoing correctly sets forth the agreement between National
Collegiate Funding and the Underwriters.
|
Very
truly yours,
|
|
|
By:
|
GATE
Holdings, Inc.,
as
sole Member
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
Confirmed
as of the date first above mentioned
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
Accepted
and Agreed as to Section 6
THE
FIRST MARBLEHEAD CORPORATION
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
SCHEDULE
A
|
Underwriter
|
Class
A-1
Notes
|
Class
A-2
Notes
|
Class
A-3
Notes
|
Class
A-4
Notes
|
Class
A-5
Notes
|
Class
A-IO Notes (notional amount)
|
Class
B
Notes
|
Class
C
Notes
|
Class
D
Notes
|
Total
|
|
Total
|
|
Price
to
Public
|
Discounts
and Commissions
|
Proceeds
to the Trust
|
|
|
Class
A-1 Notes
|
|||
|
Class
A-2 Notes
|
|||
|
Class
A-3 Notes
|
|||
|
Class
A-4 Notes
|
|||
|
Class
A-5 Notes
|
|||
|
Class
A-IO Notes
|
|||
|
Class
B Notes
|
|||
|
Class
C Notes
|
|||
|
Class
D Notes
|
|||
|
Total
|
|
SCHEDULE
B
|
|
|
List
of Servicing
Agreements
|
|
1.
|
__________________
|
|
2.
|
__________________
|
|
3.
|
__________________
|
|
4.
|
__________________
|
|
5.
|
__________________
|
|
6.
|
__________________
|
|
SCHEDULE
C
|
|
Note
Purchase Agreements
|
Each
of
the Note Purchase Agreements, as amended or supplemented, was entered into
by
and between The First Marblehead Corporation and:
|
•
|
__________________.
|
|
•
|
__________________.
|
|
•
|
__________________.
|
|
•
|
__________________.
|
|
•
|
__________________.
|
|
•
|
__________________.
|
EXHIBIT
I
ISSUER
INFORMATION*
In
the
case of asset-backed issuers certain information comprehended within the
definition of ABS informational and computational material is analogous to
the
term of securities and is therefore issuer information. For example, we would
expect that the following categories of such material, which are derived
from
the definition of ABS informational and computational materials, are generally
issuer information:
(1) Structural
information-factual
information regarding the asset-backed securities being offered and the
structure and basic parameters of the securities, such as the number of classes,
seniority, payment priorities, terms of payment, the tax, ERISA or other
legal
conclusions of counsel, and descriptive information relating to each class
(e.g., principal amount, coupon, minimum denomination, price or anticipated
price, yield, weighted average life, credit enhancements, anticipated ratings,
and other similar information relating to the proposed structure of the
offering);
(2) Collateral
information-factual
information regarding the pool assets underlying the asset-backed securities,
including origination, acquisition and pool selection criteria, information
regarding any prefunding or revolving period applicable to the offering,
information regarding significant obligors, data regarding the contractual
and
related characteristics of the underlying pool assets (e.g., weighted average
coupon, weighted average maturity, delinquency and loss information and
geographic distribution) and other factual information concerning the parameters
of the asset pool appropriate to the nature of the underlying assets, such
as
the type of assets comprising the pool and the programs under which the loans
were originated;
(3) Key
parties information-identification
of key parties to the transaction, such as servicers, trustees, depositors,
sponsors, originators and providers of credit enhancement or other support,
including information about any such party;
(4) Static
pool data-static
pool data, as referenced in Item 1105 of Regulation AB [17 CFR 229.1105],
such
as for the sponsor’s and/or servicer’s portfolio, prior transactions or the
asset pool itself; and
(5) Issuer
computational material-to
the
extent that the information is provided by the issuer, depositor, affiliated
depositor, or sponsor, statistical information displaying for a particular
class
of asset-backed securities the yield, average life, expected maturity, interest
rate sensitivity, cash flow characteristics, total rate of return, option
adjusted spread or other financial or statistical information related to
the
class or classes under specified prepayment, interest rate, loss or other
hypothetical scenarios. (Where such information is prepared by an underwriter
or
dealer, it is not issuer information, even when derived from issuer
information.)
* *
Footnote 271 from Securities Offering Reform adopting release (SEC Release
No.
33-8591); bold headings added for convenience of reference.
