Exhibit 1.1
Collegiate Funding Services Education Loan Trust 20__-_
$_________________
Student Loan Asset-Backed Notes
UNDERWRITING AGREEMENT
_____________, 20__
[Underwriter]
[Address]
[City, State Zip Code]
[Underwriter]
[Address]
[City, State Zip Code]
Ladies and Gentlemen:
Collegiate
Funding of Delaware, L.L.C., a Delaware limited liability company
(“Collegiate Funding”) proposes to cause Collegiate Funding Services
Education Loan Trust 20__-_, a Delaware statutory trust (the
“Company”), to sell to _________________ and _________________ (the
“Representatives”) and the other underwriters listed on
Schedule A hereto (each an “Underwriter” and collectively with
the Representatives, the “Underwriters”), pursuant to the terms of
this Underwriting Agreement, $___________ aggregate principal amount of the
Company’s Student Loan Asset-Backed Notes (the “Notes”) in the
classes and initial principal amounts set forth on Schedule A hereto. U.S. Bank
National Association, a national banking association, will act as eligible
lender on behalf of the Company. The Notes will be issued under an Indenture of
Trust dated as of ____________, 20__ (the “Indenture”) between the
Company and U.S. Bank National Association, a national banking association, as
indenture trustee (the “Trustee”). Upon issuance, the Notes will be
secured by, among other things, Financed Eligible Loans (as defined in the
Indenture) pledged to the Trustee and described in the Prospectus (as defined in
Section 3 below). The Financed Eligible Loans will be serviced by Collegiate
Funding Master Servicing, L.L.C., a Delaware limited liability company
(“Collegiate Servicing”) pursuant to a Master Servicing Agreement
dated as of __________, 20__ (the “Servicing Agreement”), between
Collegiate Servicing, as master servicer, and the Company. Collegiate Servicing
has entered into a loan subservicing agreement with ____________,
(“_____” or “the Subservicer”) dated as of ____________,
20__ (the “Subservicing Agreement”) pursuant to which _______ will act
as subservicer with respect to all of the Financed Eligible Loans.
This
Agreement, the Loan Purchase Agreement, dated as of ____________, 20__ between
_____________________ (“________”) and Collegiate Funding (along with
the related Loan Transfer Addendum, the “___________ Purchase
Agreement”), the Loan Purchase Agreement dated as of _____________, 20__
between Collegiate Funding and the Company (along with the related Loan Transfer
Addendum, the “Collegiate Trust Purchase Agreement” and, together with
the _________ Purchase Agreement, the “Purchase Agreements”), the
Trust Agreement, dated as of ______________, 20__, among Wilmington Trust
Company, as Delaware trustee (“the Delaware Trustee”), and Collegiate
Funding, as initial certificateholder and sponsor (the “Trust
Agreement”), the Administration Agreement, dated as of ____________, 20__,
(the “Administration Agreement”) among the Company, the Delaware
Trustee, the Trustee and Collegiate Funding Portfolio Administration, L.L.C.
(“Collegiate Administration”), as administrator (the
“Administrator”), the Eligible Lender Trust Agreement, dated as of
____________, 20__, between U.S. Bank National Association (the “Eligible
Lender Trustee”) and Collegiate Funding (the “Collegiate Funding
Eligible Lender Agreement”), the Eligible Lender Trust Agreement, dated as
of ________, 20__, between the Eligible Lender Trustee and the Company (the
“Company Eligible Lender Agreement” and together with the Collegiate
Funding Eligible Lender Agreement, the “Eligible Lender Agreements”),
the Custodian Agreement, dated ___________, 20__, among the Company, the
Trustee, the Eligible Lender Trustee and ____, as custodian (the “Custodian
Agreement”), the Servicing Agreement, the Subservicing Agreement and the
Indenture shall collectively hereinafter be referred to as the “Basic
Documents.”
Capitalized
terms used herein without definition shall have the meanings ascribed to them in
the Indenture or the Prospectus.
Collegiate
Funding proposes to cause the Company, upon the terms and conditions set forth
herein, to sell to each of the Underwriters on the Closing Date (as hereinafter
defined) the aggregate principal amount of each Class of Notes set forth next to
the name of each Underwriter on Schedule A hereto.
Collegiate
Funding wishes to confirm as follows this agreement with the Underwriters in
connection with the purchase and resale of the Notes.
1. Agreements to Sell, Purchase and Resell. (a) Collegiate
Funding hereby agrees, subject to all the terms and conditions set forth herein,
to cause the Company to sell to each of the Underwriters and, upon the basis of
the representations, warranties and agreements of Collegiate Funding herein
contained and subject to all the terms and conditions set forth herein, each of
the Underwriters severally and not jointly agrees to purchase from the Company,
such principal amount of each Class of the Notes at such respective purchase
prices as are set forth next to the name of each Underwriter on Schedule A
hereto.
(b)
It is understood that the Underwriters propose to offer the Notes for sale
to the public (which may include selected dealers) as set forth in the
Prospectus.
2. Delivery of the Notes and Payment Therefor. Delivery to the
Underwriters of and payment for the Notes shall be made at the office of
_____________, at _____, _______ time, on _________, 20__ (the "Closing Date").
The place of such closing and the Closing Date may be varied by agreement
between the Representatives and Collegiate Funding.
The
Notes will be delivered to the Underwriters against payment of the purchase
price therefor to the Company in Federal Funds, by wire transfer to an account
at a bank acceptable to the Representatives, or such other form of payment as to
which the parties may agree. Unless otherwise agreed to by Collegiate Funding
and the Representatives, each Class of Notes will be evidenced by a single
global security in definitive form deposited with the Trustee as custodian for
DTC and/or by additional definitive securities, and will be registered, in the
case of the global Classes of Notes, in the name of Cede & Co. as nominee of
The Depository Trust Company (“DTC”), and in the other cases, in such
names and in such denominations as the Underwriters shall request prior to 1:00
p.m., New York City time, no later than the business day preceding the Closing
Date. The Notes to be delivered to the Underwriters shall be made available to
the Underwriters in ____________, _________, for inspection and packaging not
later than 9:30 a.m., _________ time, on the business day next preceding the
Closing Date.
3. Representations and Warranties of Collegiate Funding.
Collegiate Funding represents and warrants to each of the Underwriters
that:
|
(a) A registration statement on Form S-3 (No 333-102258),
including a prospectus and such amendments thereto as may have been required to
the date hereof, relating to the Notes and the offering thereof from time to
time in accordance with Rule 415 under the Securities Act of 1933, as amended
(the "Act"), has been filed with the Securities and Exchange Commission (the
"SEC" or the "Commission") and such registration statement, as amended, has
become effective; such registration statement, as amended, and the prospectus
relating to the sale of the Notes offered thereby constituting a part thereof,
as from time to time amended or supplemented (including the base prospectus, any
prospectus supplement filed with the Commission pursuant to Rule 424(b) under
the Act, the information deemed to be a part thereof pursuant to Rule 430A(b)
under the Act, and the information incorporated by reference therein) are
respectively referred to herein as the "Registration Statement" and the
"Prospectus"; and the conditions to the use of a registration statement on Form
S-3 under the Act, as set forth in the General Instructions to Form S-3, and the
conditions of Rule 415 under the Act, have been satisfied with respect to the
Registration Statement; |
|
(b) On the effective date of
the Registration Statement, the Registration Statement and the Prospectus
conformed in all respects to the requirements of the Act, the rules and
regulations of the SEC (the "Rules and Regulations") and the Trust Indenture Act
of 1939, as amended, and the rules and regulations thereunder (the "Trust
Indenture Act"), and, except with respect to information omitted pursuant to
Rule 430A of the Act, did not include any untrue statement of a material fact
or, in the case of the Registration Statement, omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading and, in the case of the Prospectus, omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and on the date of this Agreement
and on the Closing Date, the Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act, the Rules and
Regulations and the Trust Indenture Act, and neither of such documents included
or will include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the foregoing does not apply to
statements in or omissions from the Registration Statement or the Prospectus
based upon written information furnished to Collegiate Funding by the
Underwriters, specifically for use therein. |
|
(c) The Commission has not
issued and, to the best knowledge of the Company, is not threatening to issue
any order preventing or suspending the use of the Registration Statement. |
|
(d) As of the Closing Date,
each consent, approval, authorization or order of, or filing with, any court or
governmental agency or body which is required to be obtained or made by
Collegiate Funding or its affiliates for the consummation of the transactions
contemplated by this Agreement shall have been obtained, except as otherwise
provided in the Basic Documents. |
|
(e) The Indenture has been duly
and validly authorized by Collegiate Funding and, upon its execution and
delivery by the Company and assuming due authorization, execution and delivery
by the Trustee, will be a valid and binding agreement of the Company,
enforceable in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other similar laws affecting creditors'
rights generally and conform in all material respects to the description thereof
in the Prospectus. The Indenture has been duly qualified under the Trust
Indenture Act with respect to the Notes. |
|
(f) The Notes have been duly
authorized by the Company and the Notes to be issued on the Closing Date, when
executed by the Company and authenticated by the Trustee in accordance with the
Indenture, and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will have been validly issued and delivered,
and will constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency, moratorium,
fraudulent conveyance or other similar laws relating to or affecting creditors'
rights generally and court decisions with respect thereto, and the Notes will
conform in all material respects to the description thereof in the
Prospectus. |
|
(g) Collegiate Funding is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware with full power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and as conducted on the date hereof, and is duly registered and
qualified to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure so to
register or qualify does not have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or results of
operations of Collegiate Funding. |
|
(h) Other than as contemplated
by this Agreement or as disclosed in the Prospectus, there is no broker, finder
or other party that is entitled to receive from 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. |
|
(i) There are no legal or
governmental proceedings pending or threatened or, to the knowledge of
Collegiate Funding contemplated, against Collegiate Funding, or to which
Collegiate Funding or any of its properties is subject, that are not disclosed
in the Prospectus and which, if adversely decided, would individually or in the
aggregate have a material adverse effect on the condition (financial or other),
business, properties or results of operations of Collegiate Funding, or would
materially and adversely affect the ability of Collegiate Funding, or the
Company to perform its obligations under this Agreement and the other Basic
Documents or otherwise materially affect the issuance of the Notes or the
consummation of the transactions contemplated hereby or by the Basic
Documents. |
|
(j) Neither the offer, sale or
delivery of the Notes by the Company nor the execution, delivery or performance
of this Agreement or the other Basic Documents by Collegiate Funding or the
Company, nor the consummation by Collegiate Funding or the Company of the
transactions contemplated hereby or thereby (i) requires or will require any
consent, approval, authorization or other order of, or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official (except for compliance with the securities or Blue Sky
laws of various jurisdictions, the qualification of the Indenture under the
Trust Indenture Act and such other consents, approvals or authorizations as
shall have been obtained prior to the Closing Date) or conflicts or will
conflict with or constitutes or will constitute a breach of, or a default under,
the organizational documents of Collegiate Funding or the Company or (ii)
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, in any material respect, any agreement, indenture, lease or
other instrument to which Collegiate Funding or the Company is a party or by
which Collegiate Funding or the Company or any of its respective properties may
be bound, or violates or will violate in any material respect any statute, law,
regulation or filing or judgment, injunction, order or decree applicable to
Collegiate Funding or the Company or any of its respective properties, or will
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of Collegiate Funding or the Company pursuant to the terms of
any agreement or instrument to which it is a party or by which it may be bound
or to which any of its properties is subject other than as contemplated by the
Basic Documents. |
|
(k) Collegiate Funding has all
requisite power and authority to execute, deliver and perform its obligations
under this Agreement and the other Basic Documents to which it is a party; the
execution and delivery of, and the performance by Collegiate Funding of its
obligations under, this Agreement and the other Basic Documents to which it is a
party have been duly and validly authorized by Collegiate Funding and this
Agreement and the other Basic Documents have been duly executed and delivered by
Collegiate Funding and constitute the valid and legally binding agreements of
Collegiate Funding, enforceable against Collegiate Funding in accordance with
their respective terms, except as the enforcement hereof and thereof may be
limited by bankruptcy, insolvency, moratorium, fraudulent conveyance or other
similar laws relating to or affecting creditors' rights generally and court
decisions with respect thereto and subject to the applicability of general
principles of equity, and except as rights to indemnity and contribution
hereunder and thereunder may be limited by Federal or state securities laws or
principles of public policy. |
|
(l) Collegiate Funding's
assignment and delivery of Financed Eligible Loans to the order of the Trustee
on behalf of the Company pursuant to the Collegiate Trust Purchase Agreement
will vest in the Trustee on behalf of the Company all of Collegiate Funding's
right, title and interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance. |
|
(m) The Company's assignment
of the Financed Eligible Loans to the Trustee pursuant to the Indenture will
vest in the Trustee, for the benefit of the Noteholders, a first priority
perfected security interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance. |
|
(n) The Company is not, nor as
a result of the issuance and sale of the Notes as contemplated hereunder will it
become, subject to registration as an "investment company" under the Investment
Company Act of 1940, as amended. |
|
(o) The representations and
warranties made by Collegiate Funding in any Basic Document to which Collegiate
Funding is a party and made in any Officer's Certificate of the Company will be
true and correct at the time made and on and as of the applicable Closing
Date. |
|
(p) Since the date of the
Prospectus, no material adverse change or any development involving a
prospective material adverse change in, or affecting particularly the business
or properties of, Collegiate Funding has occurred. |
4. Agreements of Collegiate Funding. Collegiate Funding
agrees with each of the Underwriters as follows:
|
(a) Collegiate Funding will
prepare a supplement to the Prospectus setting forth the amount of the Notes
covered thereby and the terms thereof not otherwise specified in the Prospectus,
the price at which the Notes are to be purchased by the Underwriters, either the
initial public offering price or the method by which the price at which the
Notes are to be sold will be determined, the selling concessions and
reallowances, if any, and such other information as the Underwriters and
Collegiate Funding deem appropriate in connection with the offering of the
Notes, and Collegiate Funding will timely file such supplement to the prospectus
with the SEC pursuant to Rule 424(b) under the Act, but Collegiate Funding will
not file any amendments to the Registration Statement as in effect with respect
to the Notes or any amendments or supplements to the Prospectus, unless it shall
first have delivered copies of such amendments or supplements to the
Underwriters, with reasonable opportunity to comment on such proposed amendment
or supplement or if the Underwriters shall have reasonably objected thereto
promptly after receipt thereof; 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
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 Collegiate Funding is advised thereof,
and will use its best efforts to prevent the issuance of any such order or
communication and to obtain as soon as possible its lifting, if issued. |
|
(b) If, at any time when the
Prospectus relating to the 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, Collegiate Funding promptly will notify each of the Representatives
of such event and will promptly prepare and file with the SEC, at its own
expense, an amendment or supplement to such Prospectus that will correct such
statement or omission or an amendment that will effect such compliance. Neither
the Representatives' consent to, nor the Representatives' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 6 hereof. |
|
(c) Collegiate Funding will
immediately inform the Representatives (i) of the receipt by Collegiate Funding
of any communication from the SEC or any state securities authority concerning
the offering or sale of the Notes and (ii) of the commencement of any lawsuit or
proceeding to which Collegiate Funding is a party relating to the offering or
sale of the Notes. |
|
(d) Collegiate Funding will
furnish to the Representatives, without charge, copies of the Registration
Statement (including all documents and exhibits thereto or incorporated by
reference therein), the Prospectus, and all amendments and supplements to such
documents relating to the Notes, in each case in such quantities as the
Representatives may reasonably request. |
|
(e) No amendment or supplement
will be made to the Registration Statement or Prospectus which the Underwriters
shall not previously have been advised or to which it shall reasonably object
after being so advised. |
|
(f) 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 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 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 Notes, in
any jurisdiction where it is not now so subject. |
|
(g) Collegiate Funding
consents to the use, in accordance with the securities or Blue Sky laws of such
jurisdictions in which the Notes are offered by the Underwriters and by dealers,
of the Prospectus furnished by Collegiate Funding. |
|
(h) To the extent, if any,
that the rating or ratings provided with respect to the Notes by the rating
agency or agencies that initially rate the Notes is conditional upon the
furnishing of documents or the taking of any other actions by Collegiate
Funding, Collegiate Funding shall cause to be furnished such documents and such
other actions to be taken. |
|
(i) So long as any of the
Notes are outstanding, Collegiate Funding will furnish to the Underwriters (i)
as soon as available, a copy of each document relating to the Notes required to
be filed with the SEC pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any order of the SEC thereunder, and (ii) such
other information concerning Collegiate Funding as the Underwriters may request
from time to time. |
|
(j) If this Agreement shall
terminate or shall be terminated after execution and delivery pursuant to any
provisions hereof (otherwise than by notice given by the Representatives
terminating this Agreement pursuant to Section 8 or Section 9 hereof) or if this
Agreement shall be terminated by the Representatives because of any failure or
refusal on the part of Collegiate Funding to comply with the terms or fulfill
any of the conditions of this Agreement, 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 Collegiate Funding for loss of profits or
otherwise. |
|
(k) The net proceeds from the
sale of the Notes hereunder will be applied substantially in accordance with the
description set forth in the Prospectus. |
|
(l) Except as stated in this
Agreement and in the Prospectus, 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
Notes to facilitate the sale or resale of the Notes. |
|
(m) For a period from the date
of this Agreement until the retirement of the Notes, the Company will deliver to
you the annual statements of compliance and the annual independent certified
public accountants' reports furnished to the Trustee or Collegiate Funding
pursuant to the Servicing Agreement as soon as such statements and reports are
furnished to the Trustee or Collegiate Funding. |
|
(n) On or before the Closing
Date, Collegiate Funding shall xxxx its accounting and other records, if any,
relating to the Financed Eligible Loans and shall cause the Servicer and
________ to xxxx their respective computer records relating to the Financed
Eligible Loans to show the absolute ownership by the Trustee, as eligible lender
of, and the interest of the Company in, the Financed Eligible Loans, and
Collegiate Funding shall not take, or shall permit any other person to take, any
action inconsistent with the ownership of, and the interest of the Company in,
the Financed Eligible Loans, other than as permitted by the Basic
Documents. |
|
(o) If, at the time the
Registration Statement became effective, any information shall have been omitted
therefrom in reliance upon Rule 430A under the 1933 Act, then, immediately
following the execution of this Agreement, 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 1933 Act, copies of an amended Prospectus
containing all information so omitted. |
|
(p) As soon as practicable,
but not later than 16 months after the date of this Agreement, Collegiate
Funding will make generally available to its securityholders an earnings
statement covering a period of at least 12 months beginning after the later of
(i) the effective date of the Registration Statement, (ii) the effective date of
the most recent post-effective amendment to the Registration Statement to become
effective prior to the date of this Agreement and (iii) the date of the
Company's most recent Annual Report or Form 10-K filed with the Commission prior
to the date of this Agreement, which will satisfy the provisions of Section
11(a) of the Act. |
5. Indemnification and Contribution. (a) Collegiate
Funding agrees to indemnify and hold harmless each of the Underwriters and each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages, liabilities and expenses (or actions in respect thereof)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Prospectus, or in
any amendment or supplement thereto, or any preliminary prospectus, or arising
out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability, or action as
such expenses are incurred, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which has been made therein or
omitted therefrom in reliance upon and in conformity with the information
relating to an Underwriter furnished in writing to Collegiate Funding by such
Underwriter through the Representatives expressly for use therein, it being
understood that the only such information furnished by any Underwriter consists
of the information described as such in Section 10 of this Agreement; provided,
however, that the indemnification contained in this paragraph (a) with respect
to any preliminary prospectus shall not inure to the benefit of an Underwriter
(or to the benefit of any person controlling an Underwriter) on account of any
such loss, claim, damage, liability or expense arising from the sale of the of
Notes by an Underwriter to any person if the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in such
preliminary prospectus was corrected in the final Prospectus and such
Underwriter sold Notes to that person without sending or giving at or prior to
the written confirmation of such sale, a copy of the final Prospectus (as then
amended or supplemented but excluding documents incorporated by reference
therein) if Collegiate Funding has previously furnished sufficient copies
thereof to such Underwriter at a time reasonably prior to the date such Notes
are sold to such person. The foregoing indemnity agreement shall be in addition
to any liability which Collegiate Funding may otherwise have.
|
(b) If any action, suit or
proceeding shall be brought against an Underwriter or any person controlling an
Underwriter in respect of which indemnity may be sought against Collegiate
Funding, such Underwriter or such controlling person shall promptly notify the
parties against whom indemnification is being sought (the "indemnifying
parties"), but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party under Sections
5(a) and 5(c) hereof, except to the extent that the indemnifying party is
materially prejudiced by such omission, and in no event shall the omission so to
notify relieve Collegiate Funding from any liability which it may otherwise
have. In case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party). The applicable Underwriter or any such controlling person
shall have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Underwriter or such controlling
person unless (i) the indemnifying parties have agreed in writing to pay such
fees and expenses, (ii) the indemnifying parties have failed to assume the
defense and employ counsel, or (iii) the named parties to any such action, suit
or proceeding (including any impleaded parties) include both the Underwriter or
such controlling person and the indemnifying parties and the Underwriter or such
controlling person shall have been advised by its counsel that there may be one
or more legal defenses available to it which are different from or additional to
or in conflict with those available to the indemnifying parties and in the
reasonable judgment of such counsel it is advisable for the Underwriter or such
controlling person to employ separate counsel (in which case the indemnifying
party shall not have the right to assume the defense of such action, suit or
proceeding on behalf of the Underwriter or such controlling person). It is
understood, however, that the indemnifying parties shall, in connection with any
one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for each Underwriter and controlling persons not having
actual or potential differing interests with such Underwriter or among
themselves, which firm shall be designated in writing by such Underwriter, and
that all such fees and expenses shall be reimbursed on a monthly basis as
provided in paragraph (a) hereof. An indemnifying party will not, without the
prior written consent of the indemnified party, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii) does
not include a statement as to, or an admission of fault, culpability or a
failure to act by or on behalf of an indemnified party. |
|
(c) Each Underwriter,
severally and not jointly, agrees to indemnify and hold harmless Collegiate
Funding and its directors and officers, and any person who controls 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 Collegiate Funding to the
Underwriters set forth in paragraph (a) hereof, but only with respect to
information relating to such Underwriter furnished in writing by such
Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus therein, it being understood that the only such
information furnished by any Underwriter consists of the information described
as such in Section 10 of this Agreement. If any action, suit or proceeding shall
be brought against Collegiate Funding, any of its directors or officers, or any
such controlling person based on the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus and
in respect of which indemnity may be sought against an Underwriter pursuant to
this paragraph (c), such Underwriter shall have the rights and duties given to
Collegiate Funding by paragraph (b) above (except that if 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 Collegiate
Funding, its directors and officers, and any such controlling person shall have
the rights and duties given to the Underwriters by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which the
Underwriters may otherwise have. |
|
(d) If the indemnification
provided for in this Section 5 is unavailable to an indemnified party under
paragraphs (a) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then an indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by Collegiate Funding on the one hand and the
applicable Underwriter on the other hand from the offering of the Notes, or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
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 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 Notes (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriter. The relative fault of
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 Collegiate Funding on the one
hand or by an Underwriter on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. |
|
(e) Collegiate Funding and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 5 were determined by a pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages, liabilities and
expenses referred to in paragraph (d) above shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating any claim or
defending any such action, suit or proceeding. Notwithstanding the provisions of
this Section 5, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total underwriting discounts and commissions
received by such Underwriter with respect to the Notes underwritten by such
Underwriter exceed the sum of the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission and the amount of any damages such
Underwriter has been required to pay under the Indemnity Agreement dated as of
the date hereof among the Representatives, on behalf of themselves and the other
Underwriters, and Collegiate Funding Services, L.L.C. ("CFS"). No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this paragraph
(e) to contribute are several in proportion to their respective underwriting
obligations. |
|
(f) Any losses, claims,
damages, liabilities or expenses for which an indemnified party is entitled to
indemnification or contribution under this Section 5 shall be paid by the
indemnifying party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. The indemnity and contribution agreements
contained in this Section 5 and the representations and warranties of 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, Collegiate Funding or any person controlling any of
them or their respective directors or officers, (ii) acceptance of any Notes and
payment therefor hereunder, and (iii) any termination of this Agreement. A
successor to the Underwriters, Collegiate Funding or any person controlling any
of them or their respective directors or officers, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 5. |
6.
Conditions of the Underwriters' Obligations. The obligations
of the Underwriters to purchase the Notes hereunder are subject to the following
conditions precedent:
|
(a) All actions required to be
taken and all filings required to be made by Collegiate Funding under the Act
prior to the sale of the Notes shall have been duly taken or made. At and prior
to the Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of Collegiate Funding or
the Underwriters, shall be contemplated by the Commission. |
|
(b) Subsequent to the
effective date of this Agreement, there shall not have occurred (i) any change,
or any development or event involving a prospective change, in or affecting the
condition (financial or other), business, properties, net worth, or results of
operations of Collegiate Funding, the Servicer, CFS or the Subservicer not
contemplated by the Registration Statement, which in the opinion of the
Representatives, would materially adversely affect the market for the Notes,
(ii) any downgrading in the rating of any debt securities of trusts sponsored by
Collegiate Funding, the Servicer, CFS or the Subservicer by any nationally
recognized statistical rating organization or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of trusts sponsored by Collegiate Funding, the Servicer, CFS or the
Subservicer (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating), or
(iii) any event or development which makes any statement made in the
Registration Statement or Prospectus untrue or which, in the opinion of
Collegiate Funding and its counsel or the Underwriters and their counsel,
requires the filing of any amendment to or change in the Registration Statement
or Prospectus in order to state a material fact required by any law to be stated
therein or necessary in order to make the statements therein not misleading, if
amending or supplementing the Registration Statement or Prospectus to reflect
such event or development would, in the opinion of the Representatives,
materially adversely affect the market for the Notes. |
|
(c) You shall have received an
opinion addressed to you of &Stroock & Stroock & Xxxxx, LLP ("SSL"), in its
capacity as counsel to the Company, dated the Closing Date, in form and
substance satisfactory to you and your counsel with respect to the Basic
Documents to which Collegiate Funding is a party and to the validity of the
Notes and such related matters as you shall reasonably request. In addition, you
shall have received an opinion addressed to you of SSL, in its capacity as
counsel for the Company, in form and substance satisfactory to you and your
counsel, concerning "true sale," "non- consolidation" and "first perfected
security interest" and certain other issues with respect to the transfer of the
Financed Eligible Loans from CFS to Collegiate Funding, from Collegiate Funding
to the Company and from the Company to the Trustee. |
|
(d) You shall have received an
opinion addressed to you of SSL, in its capacity as counsel for Collegiate
Funding and the Company, dated the Closing Date, in form and substance
satisfactory to you and your counsel to the effect that the statements in the
Prospectus under the headings "Federal Income Tax Consequences" and "ERISA
Considerations", to the extent that they constitute statements of matters of law
or legal conclusions with respect thereto, have been prepared or reviewed by
such counsel and are correct in all material respects. |
|
(e) You shall have received an
opinion addressed to you of SSL, in its capacity as counsel for Collegiate
Funding and the Company, dated the Closing Date, in form and substance
satisfactory to you and your counsel with respect to the character of the Notes
for federal tax purposes. |
|
(f) You shall have received an
opinion addressed to you of ______________, in its capacity as Underwriters'
Counsel, dated the Closing Date, in form and substance satisfactory to you. |
|
(g) You shall have received an
opinion addressed to you of SSL, in its capacity as counsel for Collegiate
Funding and the Company, dated the Closing Date in form and substance
satisfactory to you and your counsel with respect to the Prospectus and the
Registration Statement and certain matters arising under the Trust Indenture Act
of 1939, as amended, and the Investment Company Act of 1940, as amended. |
|
(h) You shall have received
opinions addressed to you of _____________ as counsel to Collegiate Servicing,
Collegiate Administration, Collegiate Funding and CFS, each dated the Closing
Date and satisfactory in form and substance to you and your counsel, to the
effect that: |
|
|
(i) Each of Collegiate
Servicing, Collegiate Administration, CFS and Collegiate Funding is a limited
liability company, in good standing under the laws of its respective state of
organization; each having the full power and authority (corporate and other) to
own its properties and conduct its business, as presently conducted by it, and
to enter into and perform its obligations under each of the Basic Documents to
which it is a party. |
|
|
(ii) Each Basic Document to
which each of Collegiate Servicing, Collegiate Funding, Collegiate
Administration and CFS is a party has been duly authorized, executed and
delivered by such party and each such agreement is the legal, valid and binding
obligation of such party, enforceable against it, in accordance with its terms,
except (x) the enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights and (y) remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought. |
|
|
(iii) Neither the execution
and delivery by Collegiate Servicing, Collegiate Funding, Collegiate
Administration or CFS, of the Basic Documents to which it is a party, nor the
consummation by such parties of the transactions contemplated therein nor the
fulfillment of the terms thereof by such parties will conflict with, result in a
material breach, violation or acceleration of, or constitute a default under,
any term or provision of the limited liability company agreement of Collegiate
Servicing, Collegiate Funding, Collegiate Administration or CFS or of any
material indenture or other material agreement or instrument to which Collegiate
Servicing, Collegiate Funding, Collegiate Administration or CFS is a party or by
which Collegiate Servicing, Collegiate Funding, Collegiate Administration or CFS
is bound, or result in a violation of or contravene the terms of any statute,
order or regulation applicable to Collegiate Servicing, Collegiate Funding,
Collegiate Administration or CFS of any court, regulatory body, administrative
agency or governmental body having jurisdiction over Collegiate Servicing,
Collegiate Funding, Collegiate Administration or CFS. |
|
|
(iv) There are no actions,
proceedings or investigations pending or, to the best of such counsel's
knowledge after due inquiry and reasonable investigation, threatened against
Collegiate Servicing, Collegiate Funding, Collegiate Administration or CFS
before or by any governmental authority that might materially and adversely
affect the performance by Collegiate Servicing, Collegiate Funding, Collegiate
Administration or CFS of its obligations under, or the validity or
enforceability of, any Basic Documents to which it is a party. |
|
|
(v) No authorization,
approval, or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due execution, delivery and
performance by Collegiate Servicing, Collegiate Funding, Collegiate
Administration or CFS of any Basic Document to which it is a party. |
|
(i) You shall have received opinions addressed to you of
_________________, in their capacity as counsel to the Delaware Trustee, and as
Delaware counsel to the Company and Collegiate Funding, dated the Closing Date
and in form and substance satisfactory to you and your counsel. |
|
(j) You shall have received an
opinion addressed to you of counsel to the Trustee and the Eligible Lender
Trustee, dated the Closing Date and in form and substance satisfactory to you
and your counsel. |
|
(k) You shall have received
certificates addressed to you dated the Closing Date of any two of the executive
officers of Collegiate Funding, the Company, Collegiate Servicing and Collegiate
Administration in which such officers shall state that, to the best of their
knowledge after reasonable investigation, (i) the representations and warranties
of Collegiate Funding, the Company, Collegiate Servicing and Collegiate
Administration, as applicable, contained in each of the Basic Documents to which
it is a party are true and correct in all material respects, that each of
Collegiate Funding, the Company, Collegiate Servicing and Collegiate
Administration has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied under such agreements at or prior to the
Closing Date, (ii) that each of Collegiate Funding, the Company, Collegiate
Servicing and Collegiate Administration has reviewed the Prospectus and that the
information therein regarding Collegiate Funding, the Company, Collegiate
Servicing and Collegiate Administration, as applicable, is fair and accurate in
all material respects, and (iii) since the date set forth in such certificate,
except as may be disclosed in the Prospectus, no material adverse change or any
development involving a prospective material adverse change, in or affecting
particularly the business or properties of Collegiate Funding, the Company,
Collegiate Servicing and Collegiate Administration, as applicable, has
occurred. |
|
(l) You shall have received
evidence satisfactory to you that, on or before the Closing Date, UCC-1
financing statements have been or are being filed in the office of the Secretary
of State of the State of Delaware reflecting the grant of the security interest
by the Company in the Financed Eligible Loans and the proceeds thereof to the
Trustee. |
|
(m) You shall have received a
certificate addressed to you dated the Closing Date from a responsible officer
acceptable to you of the Eligible Lender Trustee in form and substance
satisfactory to you and your counsel and to which shall be attached each
Guarantee Agreement. |
|
(n) The Underwriters shall
have received on the Closing Date from [Accountants] a letter dated the Closing
Date, and in form and substance satisfactory to the Representatives, to the
effect that they have carried out certain specified procedures, not constituting
an audit, with respect to certain information regarding the Financed Eligible
Loans and setting forth the results of such specified procedures. |
|
(o) All the representations
and warranties of each of Collegiate Funding, Collegiate Servicing, Collegiate
Administration, CFS or the Company contained in this Agreement and the other
Basic Documents to which it is a party shall be true and correct in all material
respects on and as of the date hereof and on and as of the Closing Date as if
made on and as of the Closing Date and the Underwriters shall have received
certificates, dated the Closing Date and signed by an executive officer of
Collegiate Funding to the effect set forth in this Section 6(p) and in Section
6(q) hereof. |
|
(p) Collegiate Funding,
Collegiate Servicing, the Company, Collegiate Administration or CFS 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. |
|
(q) The Underwriters shall
have received by instrument dated the Closing Date (at the option of the
Representatives), in lieu of or in addition to the legal opinions referred to in
this Section 6, the right to rely on opinions provided by such counsel and all
other counsel under the terms of the Basic Documents. |
|
(r) Each class of Class A
Notes shall be rated "AAA", "AAA" and "Aaa", respectively, by [Fitch, Inc.]
("[Fitch]"), [Standard & Poor's Ratings Service, a division of The XxXxxx-Xxxx
Companies] ("[S&P]"), and [Xxxxx'x Investors Services], Inc. ("[Moody's]"), the
Class B Notes shall be rated "A", "A-" and "A2", or higher, by [Fitch], [S&P]
and [Xxxxx'x], respectively, and that neither [Fitch], [S&P] nor [Moody's] have
placed the Notes under surveillance or review with possible negative
implications. |
|
(s) You shall have received a
certificate addressed to you dated the Closing Date of the Guaranty Agency to
the effect that (i) the information in the Prospectus with respect to the
Guaranty Agency is true and correct and is fair and accurate in all material
respects and (ii) that since the date of the Prospectus, no material adverse
change in or affecting the business or properties of the Guarantee Agency has
occurred. |
|
(t) You shall have received
such other opinions, certificates and documents as are required under the
Indenture as a condition to the issuance of the Notes. |
Collegiate Funding will provide or cause to be provided to you such conformed
copies of such of the foregoing opinions, notes, letters and documents as you
reasonably request.
7. Expenses. Collegiate Funding agrees to pay or to
otherwise cause the payment of the following costs and expenses and all other
costs and expenses incident to the performance by it of its obligations
hereunder: (i) the preparation, printing or reproduction of the Registration
Statement, the Prospectus and each amendment or supplement to any of them, this
Agreement, and each other Basic Document; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Registration Statement, the Prospectus and
all amendments or supplements to, and preliminary versions of, any of them as
may be reasonably requested for use in connection with the offering and sale of
the Notes; (iii) the preparation, printing, authentication, issuance and
delivery of definitive certificates for the Notes; (iv) the printing (or
reproduction) and delivery of this Agreement, the preliminary and supplemental
Blue Sky Memoranda and all other agreements or documents printed (or reproduced)
and delivered in connection with the offering of the Notes; (v) qualification of
the Indenture under the Trust Indenture Act; (vi) the fees and disbursements of
(A) the Company's counsel, (B) the Trustee and its counsel, (C) the Delaware
Trustee and its counsel, (D) the Depository Trust Company in connection with the
book-entry registration of the Notes, (E) [Accountants], accountants for the
Company and issuer of the Comfort Letter; (vii) the fees charged by [S&P],
[Fitch] and [Xxxxx'x] for rating the Notes.
8. Effective Date of Agreement. This Agreement shall be
deemed effective as of the date first above written upon the execution and
delivery hereof by all the parties hereto. Until such time as this Agreement
shall have become effective, it may be terminated by Collegiate Funding, by
notifying each of the Representatives, or by the Representatives, by notifying
Collegiate Funding.
Any
notice under this Section 8 may be given by telecopy or telephone but shall be
subsequently confirmed by letter.
9. Termination of Agreement. This Agreement shall be
subject to termination in the absolute discretion of the Representatives,
without liability on the part of the Underwriters to Collegiate Funding, by
notice to Collegiate Funding, if prior to the Closing Date (i) trading in
securities generally on the New York Stock Exchange, American Stock Exchange or
the Nasdaq National Market shall have been suspended or materially limited, (ii)
a general moratorium on commercial banking activities in New York shall have
been declared by either Federal or state authorities, or (iii) there shall have
occurred any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to commence or continue the
offering of the Notes on the terms set forth in the Prospectus, as applicable,
or to enforce contracts for the resale of the Notes by the Underwriters. Notice
of such termination may be given to Collegiate Funding by telecopy or telephone
and shall be subsequently confirmed by letter.
10. Information Furnished by the Underwriters. The
statements set forth in the second, third, ninth and tenth paragraphs and the
second table under the heading "Plan of Distribution" in the Prospectus
Supplement constitute the only information furnished by or on behalf of the
Underwriters as such information is referred to in Sections 3(b) and 5
hereof.
11. Default by One of the Underwriters. If any of the
Underwriters shall fail on the Closing Date to purchase the Notes which it is
obligated to purchase hereunder (the "Defaulted Notes"), the remaining
Underwriter (the "Non-Defaulting Underwriter") shall have the right, but not the
obligation, within one (1) Business Day thereafter, to make arrangements to
purchase all, but not less than all, of the Defaulted Notes upon the terms
herein set forth; if, however, the Non-Defaulting Underwriter shall have not
completed such arrangements within such one (1) Business Day period, then this
Agreement shall terminate without liability on the part of the Non-Defaulting
Underwriter.
No
action taken pursuant to this Section shall relieve any defaulting Underwriter
from liability in respect of its default.
In
the event of any such default which does not result in a termination of this
Agreement, either the Non-Defaulting Underwriters or Collegiate Funding shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements.
12. Computational Materials. (a) It is understood
that the Underwriters may prepare and provide to prospective investors certain
Computational Materials (as defined below) in connection with Collegiate
Funding's offering of the Notes, subject to the following conditions:
|
|
(i) The Underwriters shall
comply with all applicable laws and regulations in connection with the use of
Computational Materials including the No-Action Letter of May 20, 1994 issued by
the Commission to Xxxxxx, Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx &
Co. Incorporated and Xxxxxx Structured Asset Corporation, as made applicable to
other issuers and underwriters by the Commission in response to the request of
the Public Securities Association dated May 24, 1994, and the No-Action Letter
of February 17, 1995 issued by the Commission to the Public Securities
Association (collectively, the "Xxxxxx/PSA Letters"). |
|
|
(ii) As used herein,
"Computational Materials" and the term "ABS Term Sheets" shall have the meanings
given such terms in the Xxxxxx/PSA Letters, but shall include only those
Computational Materials that have been prepared or delivered to prospective
investors by or at the direction of an Underwriter. |
|
|
(iii) Each Underwriter shall
provide Collegiate Funding with representative forms of all Computational
Materials prior to their first use, to the extent such forms have not previously
been approved by Collegiate Funding for use by such Underwriter. Each
Underwriter shall provide to Collegiate Funding, for filing on Form 8-K as
provided in Section 12(b), copies of all Computational Materials that are to be
filed with the Commission pursuant to the Xxxxxx/PSA Letters. Each Underwriter
may provide copies of the foregoing in a consolidated or aggregated form. All
Computational Materials described in this subsection (a)(iii) must be provided
to Collegiate Funding not later than 10:00 A.M., _______ time, one business day
before filing thereof is required pursuant to the terms of this Agreement. |
|
|
(iv) If an Underwriter does
not provide the Computational Materials to Collegiate Funding pursuant to
subsection (a)(iii) above, such Underwriter shall be deemed to have represented,
as of the applicable Closing Date, that it did not provide any prospective
investors with any information in written or electronic form in connection with
the offering of the Notes that is required to be filed with the Commission in
accordance with the Xxxxxx/PSA Letters. |
|
|
(v) In the event of any delay
in the delivery by an Underwriter to Collegiate Funding of all Computational
Materials required to be delivered in accordance with subsection (a)(iii) above,
Collegiate Funding shall have the right to delay the release of the Prospectus
to investors or to such Underwriter, to delay the Closing Date and to take other
appropriate actions in each case as necessary in order to allow Collegiate
Funding to comply with its agreement set forth in Section 12(b) to file the
Computational Materials by the time specified therein. |
|
(b) Collegiate Funding shall
file the Computational Materials (if any) provided to it by the Underwriter
under Section 12(a)(iii) with the Commission pursuant to a Current Report on
Form 8-K no later than 5:30 P.M., New York time, on the date required pursuant
to the Xxxxxx/PSA Letters. |
13. Survival of Representations and Warranties. The
respective indemnities, agreements, representations, warranties and other
statements of Collegiate Funding or its officers and of the Underwriters set
forth in or made pursuant to this Agreement or contained in notes of officers of
Collegiate Funding submitted pursuant hereto shall remain operative and in full
force and effect, regardless of any investigation or statement as to the results
thereof, made by or on behalf of the Underwriters, Collegiate Funding or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Notes.
14. Miscellaneous. Except as otherwise provided in
Sections 5, 8 and 9 hereof, notice given pursuant to any provision of this
Agreement shall be in writing and shall be delivered (i) if to Collegiate
Funding, at 000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxx Xxxxxxxxxx, and (ii) if to the Underwriters, to the address of
the respective Underwriter set forth above with a copy to [Name], [Law Firm
Name], [Address, City, State Zip Code].
This Agreement has been and is made solely for the benefit of the Underwriters,
Collegiate Funding, the Company, their respective directors, officers, managers,
trustees and controlling persons referred to in Section 5 hereof and their
respective successors and assigns, to the extent provided herein, and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term “successor” nor the term “successors and
assigns” as used in this Agreement shall include a purchaser from an
Underwriter of any of the Notes in his status as such purchaser.
15. Applicable Law; Counterparts. This Agreement shall
be governed by and construed in accordance with the laws of the State of New
York applicable to contracts made and to be performed within the State of New
York without giving effect to the choice of laws or conflict of laws principles
thereof.
This
Agreement may be signed in various counterparts which together constitute one
and the same instrument. If signed in counterparts, this Agreement shall not
become effective unless at least one counterpart hereof or thereof shall have
been executed and delivered on behalf of each party hereto.
Please confirm that the foregoing correctly sets forth the agreement between the
Collegiate Funding and the Underwriters.
| |
Very truly yours,
COLLEGIATE FUNDING OF DELAWARE, LLC
By: Collegiate Funding Services, L.L.C., as sole member
By: ________________________________
Name: J. Xxxxx Xxxxxx
Title: Chief Executive Officer |
Confirmed as of the date
first above mentioned.
________________________, acting on behalf of itself and
as Representative of the Underwriters
By:________________________________
Name:______________________________
Title:_____________________________
________________________, acting on behalf of itself and
as Representative of the Underwriters
By:________________________________
Name:______________________________
Title:_____________________________ |
|
SCHEDULE A
---------------- ------------- ------------- ------------- ------------- ------------- ------------- --------
Class of Notes [Underwriter] [Underwriter] [Underwriter] [Underwriter] [Underwriter] [Underwriter] TOTAL
---------------- ------------- ------------- ------------- ------------- ------------- ------------- --------
---------------- ------------- ------------- ------------- ------------- ------------- ------------- --------
Class A-1 $ $ $ $ $ $ $
---------------- ------------- ------------- ------------- ------------- ------------- ------------- --------
---------------- ------------- ------------- ------------- ------------- ------------- ------------- --------
Class A-2 $ $ $ $ $ $ $
---------------- ------------- ------------- ------------- ------------- ------------- ------------- --------
---------------- ------------- ------------- ------------- ------------- ------------- ------------- --------
Class A-3 $ $ $ $ $ $ $
---------------- ------------- ------------- ------------- ------------- ------------- ------------- --------
---------------- ------------- ------------- ------------- ------------- ------------- ------------- --------
Class B $ $ $ $ $ $ $
---------------- ------------- ------------- ------------- ------------- ------------- ------------- --------
---------------- ------------- ------------- ------------- ------------- ------------- ------------- --------
Total $ $ $ $ $ $ $
---------------- ------------- ------------- ------------- ------------- ------------- ------------- --------
Terms of the Notes
Class Interest Rate Final Maturity Date Price to Public Underwriting Discount Proceeds to Issuer
----- ------------- ------------------ -------------- --------------------- ------------------
______, 20__ ______% 0.__% $__________
Total __________
