EXHIBIT 10.12
EXECUTION COPY
$1,113,400,000
COLLEGIATE FUNDING SERVICES EDUCATION LOAN TRUST 2004-A
UNDERWRITING AGREEMENT
April 16, 2004
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS Securities LLC
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. INTRODUCTORY. Collegiate Funding of Delaware, L.L.C. (the "Sponsor")
has previously filed a registration statement with the Securities and Exchange
Commission relating to the issuance and sale from time to time of up to $2.6
billion of student loan asset-backed notes. Collegiate Funding Services, L.L.C.,
a Virginia limited liability company ("Collegiate Funding") owns the Sponsor
directly. The Sponsor proposes to cause Collegiate Funding Services Education
Loan Trust 2004-A (the "Trust") to issue and sell to X.X. Xxxxxx Securities
Inc., Citigroup Global Markets Inc. and UBS Securities LLC (each, an
"Underwriter" and collectively, the "Underwriters") $249,000,000 principal
amount of its Class A-1 Student Loan Asset-Backed Notes, Series 2004-A (the
"Class A-1 Notes"), $350,000,000 principal amount of its Class A-2 Student Loan
Asset-Backed Notes, Series 2004-A (the "Class A-2 Notes"), $207,000,000
principal amount of its Class A-3 Student Loan Asset-Backed Notes, Series 2004-A
(the "Class A-3 Notes"), $140,000,000 principal amount of its Class A-4 Student
Loan Asset-Backed Notes, Series 2004-A (the "Class A-4 Notes"), $55,850,000
principal amount of its Class A-5 Student Loan Asset-Backed Notes, Series 2004-A
(the "Class A-5 Notes"), $55,850,000 principal amount of its Class A-6 Student
Loan Asset-Backed Notes, Series 2004-A (the "Class A-6 Notes") and $55,700,000
principal amount of its Class B Student Loan Asset-Backed Notes, Series 2004-A
(the "Class B Notes" and, together with the Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes, Class A-4 Notes, Class A-5 Notes and Class A-6 Notes, the
"Notes"). The Trust was formed by the Sponsor pursuant to a trust agreement,
dated as of April 1, 2004, (as amended and supplemented from time to time, the
"Trust Agreement"), between the Sponsor and Wilmington Trust Company, as
Delaware Trustee (the "Delaware Trustee"). The assets of the Trust will include,
among other things, a pool of student loans (the "Initial Financed Student
Loans") and all amounts collected thereunder on and after the Closing Date, as
defined below. Such Initial Financed Student Loans will be acquired by the Trust
from
the Sponsor pursuant to a loan purchase agreement, to be dated as of April 1,
2004 (as amended and supplemented from time to time, the "Sponsor Student Loan
Purchase Agreement"), among the Trust, Collegiate Funding and the Sponsor. After
the Closing Date, the Trust may acquire additional student loans pursuant to the
Sponsor Student Loan Purchase Agreement (such additional Student Loans, together
with the Initial Financed Student Loans, being referred to herein, collectively,
as the "Financed Student Loans"). The Sponsor will acquire the Initial Financed
Student Loans to be sold pursuant to the Sponsor Student Loan Purchase Agreement
from Collegiate Funding Services Resources I, LLC (the "Seller") pursuant to a
loan purchase agreement, to be dated as of April 1, 2004 (as amended and
supplemented from time to time, the "Seller Student Loan Purchase Agreement"),
among the Sponsor, Collegiate Funding Services, L.L.C. and the Seller. The
Financed Student Loans to be sold to the Trust by the Sponsor after the Closing
Date pursuant to the Sponsor Student Loan Purchase Agreement will be originated
by the Sponsor, acting through an eligible lender trustee. The Financed Student
Loans are to be serviced by Collegiate Funding Master Servicing, L.L.C. (the
"Master Servicer") pursuant to a servicing agreement, to be dated as of April 1,
2004 (as amended and supplemented from time to time, the "Master Servicing
Agreement"), among the Trust, the Master Servicer and the Indenture Trustee, as
hereinafter defined. In turn, the Master Servicer will enter into a servicing
agreement, to be dated as of April 1, 2004 (as amended and supplemented from
time to time, the "Sub-Servicing Agreement"), with CFS-SunTech Servicing LLC
("CFS-SunTech" or, in its capacity as sub-servicer, the "Sub-Servicer") pursuant
to which the Sub-Servicer will service all of the Financed Student Loans on
behalf of the Master Servicer. The Financed Student Loans have been and will be
originated pursuant to a student loan origination and servicing agreement (the
"Origination Agreement"), between the Sponsor and CFS-SunTech, as originating
agent (the "Originating Agent") or a loan origination and servicing agreement
(the "Seller Origination Agreement") between the Seller and the Originating
Agent. The Notes will be issued pursuant to an indenture of trust, to be dated
as of April 1, 2004 (as amended and supplemented from time to time, the
"Indenture"), between the Trust and U.S. Bank National Association, as indenture
trustee (the "Indenture Trustee") and as eligible lender trustee (the "Eligible
Lender Trustee"). In addition, pursuant to an administration agreement, to be
dated as of April 1, 2004 (as amended and supplemented from time to time, the
"Administration Agreement"), among the Trust, Collegiate Funding Portfolio
Administration, L.L.C. (the "Administrator") and the Indenture Trustee, the
Administrator will agree to perform certain administrative tasks on behalf of
the Trust. The Issuer and the Administrator will also enter into a Back-up
Administration Agreement, to be dated as of April 1, 2004 (the "Back-up
Administration Agreement"), with Lord SPV Securities Corporation (the "Back-up
Administrator"). The Trust will have the benefit of an interest rate LIBOR Swap
issued pursuant to an ISDA Master Agreement and a Schedule in connection
therewith, all dated April 12, 2004 (the "LIBOR Swap Agreement"), between the
Trust and Bank of New York (the "LIBOR Swap Counterparty"). The Trust and the
Indenture Trustee will also enter into an investment agreement, dated as of the
Closing Date (the "Investment Agreement"), with an investment agreement provider
acceptable to the Rating Agencies and the Underwriters (the "Investment
Agreement Provider").
In connection with the determination of the interest rates on the Class
A-5 Notes, the Class A-6 Notes and the Class B Notes (collectively, the "Auction
Rate Notes"), the Trust and the Indenture Trustee will enter into an auction
agent agreement, to be dated as of April 1, 2004 (as amended and supplemented
from time to time, the "Auction Agent Agreement"), with The Bank of New York, as
auction agent (the "Auction Agent"). The Auction Agent will, in turn,
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enter into three broker-dealer agreements, each to be dated as of April 1, 2004
(each, as amended and supplemented from time to time, a "Broker-Dealer
Agreement"), with UBS Securities LLC (with respect to the Class A-5 Notes),
Citigroup Global Markets Inc. (with respect to the Class A-6 Notes) and X.X.
Xxxxxx Securities Inc. (with respect to the Class B Notes). The Indenture
Trustee will enter into three market agent agreements, each to be dated as of
April 1, 2004 (each, as amended and supplemented from time to time, a "Market
Agent Agreement"), with UBS Securities LLC (with respect to the Class A-5
Notes), Citigroup Global Markets Inc. (with respect to the Class A-6 Notes) and
X.X. Xxxxxx Securities Inc. (with respect to the Class B Notes).
The Indenture Trustee and the Eligible Lender Trustee have previously
entered into a joint sharing agreement, dated February 1, 2003 (as amended and
supplemented from time to time, the "Joint Sharing Agreement"), with such other
entities for which the Eligible Lender Trustee is an eligible lender trustee
(including the Trust) and uses the same eligible lender number for the holding
of student loans as it uses for the Financed Student Loans.
Capitalized terms used and not otherwise defined herein shall have the
meanings given them in the Prospectus (as hereinafter defined) or, if not
defined therein, as defined in the Indenture. As used herein, the term "Basic
Documents" refers to this Agreement, the Trust Agreement, the Indenture, the
Master Servicing Agreement, the Sub-Servicing Agreement, the Origination
Agreement, the Seller Origination Agreement, the Administration Agreement, the
Back-up Administration Agreement, the Sponsor Student Loan Purchase Agreement,
the Seller Student Loan Purchase Agreement, the Guarantee Agreements, the LIBOR
Swap Agreement, the Investment Agreement, the Auction Agent Agreement, the
Broker-Dealer Agreements, the Market Agent Agreements, the Joint Sharing
Agreement, the eligible lender trust agreements previously entered into or to be
entered into between the Sponsor and the Trust, respectively, and U.S. Bank
National Association, as eligible lender trustee (collectively, the "Eligible
Lender Trust Agreements"), the custodian agreements previously entered into or
to be entered into among the Trust and the Sponsor, respectively, and the
Indenture Trustee and CFS-SunTech, as custodian (the "Custodian") (collectively,
the "Custodian Agreements") and the letter of representations, given by the
Trust and the Indenture Trustee to The Depository Trust Company ("DTC") in
connection with the registration of the Notes.
2. REPRESENTATIONS AND WARRANTIES OF THE SPONSOR AND COLLEGIATE
FUNDING. The Sponsor and Collegiate Funding each represent and warrant to and
agree with the Underwriters that:
(a) A registration statement on Form S-3 (No. 333-112232),
including a form of 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 "Commission"); such registration statement
and any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Underwriters and excluding exhibits to
such registration statement but including all documents incorporated by
reference in the prospectus contained therein, to the Underwriters, have
been declared effective by the Commission in such form; no other document
with respect to such registration statement
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or document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than prospectuses filed
pursuant to Rule 424(b) ("Rule 424(b)") of the rules and regulations of
the Commission (the "Rules and Regulations") under the Act, each in the
form heretofore delivered to the Underwriters); and no stop order
suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or threatened
by the Commission. The various parts of such registration statement
including all exhibits thereto and the documents incorporated by reference
in the prospectus contained in the registration statement at the time such
registration statement became effective (but excluding the Form T-1 filed
in connection therewith), each as amended at the time such part of such
registration statement became effective, is hereinafter referred to as the
"Registration Statement," and the prospectus included in such Registration
Statement, as supplemented to reflect the terms of the Notes as first
filed with the Commission after the date of this Agreement pursuant to and
in accordance with Rule 424(b), is hereinafter referred to as the
"Prospectus," a "preliminary prospectus" means any form of prospectus,
including any prospectus supplement, relating to the Notes used prior to
the date of this Agreement that is subject to completion; the "Base
Prospectus" means the base prospectus to be dated on or about April 2,
2004, included in the Prospectus; the "Prospectus Supplement" means the
prospectus supplement to be dated on or about April 23, 2004, included in
the Prospectus.
(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 and the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and the Rules and
Regulations thereunder, 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 by the Underwriters
(as described in Section 7(b) hereof), specifically for use therein.
(c) The Notes are "asset backed securities" within the meaning of,
and satisfy the requirements for use of, Form S-3 under the Act, as set
forth in the General Instructions to Form S-3, and the conditions of Rule
415 of the Act have been satisfied with respect to the Registration
Statement. The Commission has not issued and, to the best knowledge of the
Company, is not threatening to issue any order preventing or suspending
the use of the Registration Statement.
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(d) The documents incorporated by reference in the Registration
Statement and Prospectus, when they become effective or hereafter become
effective, or at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Act, the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), the Trust Indenture Act and the Rules and
Regulations thereunder and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
(e) Each of Collegiate Funding, the Sponsor, the Seller, the
Master Servicer and the Administrator is duly organized, validly existing
and in good standing under the laws of its respective jurisdiction of
organization, is duly qualified to transact business in each jurisdiction
in which it is required to be so qualified and has all necessary licenses,
permits and consents to conduct its business as currently conducted and as
described in the Prospectus and to perform its obligations under the Basic
Documents except where the failure to be so qualified or to have such
licenses, permits or consents would not have a material adverse affect on
Collegiate Funding, the Sponsor, the Seller, the Master Servicer or the
Administrator, as applicable, or on its ability to perform its obligations
under the Basic Documents.
(f) This Agreement and each of the other Basic Documents to which
Collegiate Funding, the Sponsor, the Seller, the Master Servicer or the
Administrator is a party has been duly authorized and, when executed and
delivered by Collegiate Funding, the Sponsor, the Seller, the Master
Servicer or the Administrator, as applicable, will constitute a valid and
binding agreement of Collegiate Funding, the Sponsor, the Seller, the
Master Servicer and the Administrator, respectively, enforceable against
Collegiate Funding, the Sponsor, the Seller, the Master Servicer and the
Administrator, respectively, in accordance with its terms, subject as to
the enforcement of remedies (i) to applicable bankruptcy, insolvency,
reorganization, moratorium, and other similar laws affecting creditors'
rights generally; (ii) to general principles of equity (regardless of and
whether the enforcement of such remedies is considered in a proceeding in
equity or at law); and (iii) with respect to rights of indemnity under
this Agreement, to limitations of public policy under applicable
securities laws.
(g) None of Collegiate Funding, the Sponsor, the Seller, the
Master Servicer or the Administrator is in breach or violation of (i) its
organizational documents or (ii) any indenture, mortgage, deed or trust,
lease, credit or security agreement or other agreement or instrument to
which it is a party or by which it or its properties may be bound, or in
violation of any applicable law, statute, regulation or ordinance or any
governmental body having jurisdiction over it, except where such breach or
violation would not have a material adverse affect on Collegiate Funding,
the Sponsor, the Seller, the Master Servicer or the Administrator, as
applicable, or in its ability to perform its obligations under the Basic
Documents.
(h) Other than as contemplated by this Agreement or as disclosed
in the Prospectus, there is no broker, finder or other party that is
entitled to receive from the Sponsor, or any affiliate thereof or the
Underwriters, any brokerage or finder's fee or
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other fee or commission as a result of any of the transactions
contemplated by this Agreement.
(i) Neither the Sponsor nor any of its affiliates has entered
into, nor will it enter into, any contractual arrangement with respect to
the distribution of the Notes, except for this Agreement.
(j) The Trust is not an "investment company" and is not required
to be registered as an "investment company," as such term is defined in
the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(k) As of the Closing Date (as defined below), the representations
and warranties of Collegiate Funding, the Sponsor, the Seller, the Master
Servicer and the Administrator, in each of their respective capacities
under each of the Basic Documents to which they are a party, will be true
and correct in all material respects as of the date of such representation
or warranty was given and each such representation and warranty is so
incorporated herein by this reference.
(l) The Trust's assignment of the Collateral to the Indenture
Trustee pursuant to the Indenture will vest in the Indenture Trustee, for
the benefit of the Noteholders, a first priority perfected security
interest therein, subject to no other outstanding Lien.
(m) The Notes have been duly authorized on behalf of the Trust.
The Notes, when duly and validly executed, authenticated and delivered in
accordance with the Indenture, and delivered and paid for pursuant hereto,
will constitute legally valid and binding obligations of the Trust,
entitled to the benefits of the Indenture and enforceable in accordance
with their terms, subject as to enforceability to the effects of
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and similar laws now or hereafter in effect relating to
creditors' rights generally and subject to general principles of equity
(whether in a proceeding at law or in equity).
(n) Neither the execution, delivery or performance of any of the
Basic Documents by Collegiate Funding, the Sponsor, the Seller, the Master
Servicer or the Administrator, nor the issuance, sale and delivery of the
Notes, nor the fulfillment of the terms of the Notes, will conflict with,
or result in a breach, violation or acceleration of, or constitute a
default under, any term or provision of the formation documents of
Collegiate Funding, the Sponsor, the Seller, the Master Servicer or the
Administrator, any material indenture or other material agreement or
instrument to which Collegiate Funding, the Sponsor, the Seller, the
Master Servicer or the Administrator is a party or by which any of them or
their properties is bound or result in a violation of or contravene the
terms of any statute, order or regulation applicable to Collegiate
Funding, the Sponsor, the Seller, the Master Servicer or the Administrator
of any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over Collegiate Funding, the Sponsor, the
Seller, the Master Servicer or the Administrator, or will result in the
creation of any lien upon any material property or assets of Collegiate
Funding, the Sponsor, the Seller, the Master Servicer or the Administrator
(other than pursuant to the Basic Documents).
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(o) Other than as disclosed in the Prospectus, there are no legal
or governmental proceedings pending to which Collegiate Funding, the
Sponsor, the Seller, the Master Servicer or the Administrator is a party
or of which any of its properties is the subject, which, if determined
adversely to Collegiate Funding, the Sponsor, the Seller, the Master
Servicer or the Administrator, would individually or in the aggregate have
a material adverse effect on the financial position, shareholders' equity
or results of operations of any of them; and, to the best of Collegiate
Funding's and the Sponsor's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or others.
(p) No consent, license, approval, authorization or order of or
declaration or filing with any governmental authority is required for the
issuance of the Notes or sale of the Notes or the consummation of the
other transactions contemplated by this Agreement or the other Basic
Documents, except for state securities or Blue Sky laws and except such as
have been or will have been prior to the Closing Date duly made or
obtained.
(q) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, as amended prior to the
date hereof, there has not been any material adverse change, or any
development which could reasonably be expected to result in a material
adverse change, in or affecting the financial position, shareholders'
equity or results of operations of Collegiate Funding, the Sponsor, the
Seller, the Master Servicer or the Administrator, or Collegiate Funding's,
the Sponsor's, the Seller's, the Servicer's or the Administrator's ability
to perform its obligations under this Agreement or any of the other Basic
Documents to which it is a party.
(r) Any taxes, fees and other governmental charges owed by
Collegiate Funding, the Sponsor, the Seller, the Master Servicer, the
Administrator or the Trust due on or prior to the Closing Date (including,
without limitation, sales taxes) in connection with the execution,
delivery and issuance of this Agreement, the other Basic Documents and the
Notes have been or will have been paid at or prior to the Closing Date,
except for taxes, fees and other governmental charges in respect of which
the validity thereof will be contested in good faith by appropriate
proceedings.
(s) Under generally accepted accounting principles, (i) the Seller
will report its transfer of the Financed Student Loans transferred by it
to the Sponsor pursuant to the Seller Student Loan Purchase Agreement as a
sale of the Financed Student Loans for financial accounting purposes and
(ii) the Sponsor will report its transfer of the Financed Student Loans to
the Trust pursuant to the Sponsor Student Loan Purchase Agreement as a
sale of the Financed Student Loans for financial accounting purposes (it
being understood, however, that the sales described in clauses (i) and
(ii) may not be recognized for accounting purposes due to the application
of consolidated financial reporting).
(t) Immediately prior to the transfer thereof by the Seller to the
Sponsor, the Seller will be the sole owner of all right, title and
interest in, and will have good and marketable title to, the Financed
Student Loans to be transferred to the Sponsor. Pursuant to the Seller
Student Loan Purchase Agreement, the Seller will transfer to the Sponsor
ownership of the Financed Student Loans. Immediately prior to the transfer
thereof to
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the Trust, the Sponsor will be the sole owner of all right, title and
interest in, and will have good and marketable title to, the Financed
Student Loans. The assignment of the Financed Student Loans, all documents
and instruments relating thereto and all proceeds thereof to the Trust,
pursuant to the Sponsor Student Loan Purchase Agreement, vests in the
Indenture Trustee and the Eligible Lender Trustee, as appropriate, on
behalf of the Trust all interests which are purported to be conveyed
thereby, free and clear of any liens, security interests or encumbrances,
other than those contemplated by the Basic Documents.
(u) Immediately upon the transfer of Financed Student Loans by the
Seller to the Sponsor pursuant to the Seller Student Loan Purchase
Agreement, the Sponsor's interest in such Financed Student Loans and the
proceeds thereof shall be perfected by the filing of UCC-1 financing
statements naming the Seller and its eligible lender trustee, as debtors,
the Sponsor and its eligible lender trustee, as secured parties, and the
Indenture Trustee, as assignee (the "Seller Financing Statements") in the
offices specified in Schedule I and there shall be no unreleased UCC
financing statements filed against the Seller or its eligible lender
trustee in such Financed Student Loans other than the Seller Financing
Statements. If a court concludes that the transfer of such Financed
Student Loans from the Seller to the Sponsor is a sale, the interest of
the Sponsor in the Financed Student Loans and the proceeds thereof will be
perfected upon the filing of the Seller Financing Statements in the
offices specified in Schedule I. If a court concludes that such transfer
is not a sale, the Seller Student Loan Purchase Agreement and the
transactions contemplated thereby shall constitute a grant by the Seller
to the Sponsor of a valid security interest in the Financed Student Loans
and the proceeds thereof, which security interest will be perfected upon
the filing of the Seller Financing Statements in the office specified in
Schedule I. No filing or other action, other than the filing of the Seller
Financing Statements in the offices specified in Schedule I and any
related continuation statements, is necessary to perfect and maintain the
interest or the security interest of the Sponsor in the Financed Student
Loans and the proceeds thereof against third parties.
(v) Immediately upon the transfer of the Financed Student Loans by
the Sponsor to the Trust pursuant to the Sponsor Student Loan Purchase
Agreement, the Trust's interest in the Financed Student Loans and the
proceeds thereof shall be perfected by the filing of UCC-1 Financing
Statements naming the Sponsor and its eligible lender trustee, as debtors,
the Trust and the Eligible Lender Trustee, as secured parties, and the
Indenture Trustee, as assignee (the "Sponsor Financing Statements") in the
offices specified in Schedule I and there shall be no unreleased UCC
financing statements filed against the Sponsor or its eligible lender
trustee in the Financed Student Loans other than the Sponsor Financing
Statements. If a court concludes that the transfer of the Financed Student
Loans from the Sponsor to the Trust is a sale, the interest of the Trust
in the Financed Student Loans and the proceeds thereof will be perfected
upon the filing of the Sponsor Financing Statements in the offices
specified in Schedule I. If a court concludes that such transfer is not a
sale, the Sponsor Student Loan Purchase Agreement and the transactions
contemplated thereby constitute a grant by the Sponsor to the Trust of a
valid security interest in the Financed Student Loans and the proceeds
thereof, which security interest will be perfected upon the filing of the
Sponsor Financing Statements in the offices specified in Schedule I. No
filing or other action, other than the filing of the
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Sponsor Financing Statements in the offices specified in Schedule I and
any related continuation statements, is necessary to perfect and maintain
the interest or the security interest of the Trust in the Financed Student
Loans and the proceeds thereof against third parties.
(w) The Indenture and the transactions contemplated thereby
constitute a grant by the Trust and the Eligible Lender Trustee to the
Indenture Trustee of a valid security interest in the Collateral and the
proceeds thereof, which security interest will be perfected upon the
filing of UCC-1 Financing Statements naming the Trust and the Eligible
Lender Trustee, as debtors, and the Indenture Trustee, as secured party
(the "Trust Financing Statements"), in the offices specified in Schedule I
and there shall be no unreleased UCC financing statements filed against
the Trust or the Eligible Lender Trustee in the Collateral other than the
Trust Financing Statements. No filing or other action, other than the
filing of the Trust Financing Statements and any related continuation
statements, is necessary to perfect and maintain the interest or the
security interest of the Indenture Trustee in the Collateral and the
proceeds thereof against third parties.
(x) The Trust Agreement need not be qualified under the Trust
Indenture Act.
(y) The Indenture has been qualified under the Trust Indenture
Act.
3. PURCHASE, SALE AND DELIVERY OF THE NOTES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Sponsor agrees to cause the Trust to
sell to the Underwriters, and the Underwriters agree, severally and not jointly,
to purchase from the Trust, the principal amount of each class of Notes set
forth opposite the name of such Underwriter on Schedule II hereto at a purchase
price equal to the product of the "Price %" as specified on Schedule III hereto
for such class of Notes and the principal amount of each class of Notes set
forth opposite the name of such Underwriter on Schedule II hereto. The Notes
shall mature on the dates, and shall bear interest at the respective rates,
described in the Prospectus Supplement. For the periods from the Closing Date
through the ends of the respective Initial Auction Periods, (a) the Class A-5
Notes shall bear interest at rates not to exceed 3.00% per annum, to be agreed
to by the Sponsor and UBS Securities LLC; (b) the Class A-6 Notes shall bear
interest at rates not to exceed 3.00% per annum, to be agreed to by the Sponsor
and Citigroup Global Markets Inc.; and (c) the Class B Notes shall bear interest
at rates not to exceed 3.00% per annum, to be agreed to by the Sponsor and X.X.
Xxxxxx Securities Inc.
The Sponsor will deliver the Notes to the Underwriters, against payment of
the purchase price to or upon the order of the Sponsor by wire transfer in
federal (same day) funds, at the office of Stroock & Stroock & Xxxxx LLP, 000
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York time on April 28,
2004, or at such other time not later than seven full business days thereafter
as the Underwriters and the Sponsor agree in writing, such time being herein
referred to as the "Closing Date." The Notes to be so delivered will be
initially represented by one or more Notes registered in the name of Cede & Co.,
the nominee of DTC. The interests of beneficial owners of the Notes will be
represented by book entries on the records
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of DTC and participating members thereof. Definitive Notes will be available
only under the limited circumstances specified in the Basic Documents.
4. OFFERING BY UNDERWRITERS. It is understood that the Underwriters
propose to offer the Notes for sale to the public (which may include selected
dealers) on the terms set forth in the Prospectus.
5. COVENANTS OF THE SPONSOR. The Sponsor covenants and agrees with the
Underwriters that:
(a) The Sponsor will file the Prospectus in a form approved by the
Underwriters with the Commission pursuant to and in accordance with
subparagraph (2) (or, if applicable and if consented to by the
Underwriters, subparagraph (5)) of Rule 424(b) no later than the second
business day following the execution and delivery of this Agreement. The
Sponsor will advise the Underwriters promptly of any such filing pursuant
to Rule 424(b).
(b) The Sponsor will advise the Underwriters promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus in connection with the offering of the Notes and will not
effect such amendment or supplementation without the consent of the
Underwriters, which consent shall not be unreasonably withheld or delayed;
and the Sponsor will advise the Underwriters promptly of any amendment or
supplementation of the Registration Statement or the Prospectus in
connection with the offering of the Notes and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered by an Underwriter or dealer, either (i) 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 any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
(ii) for any other reason it shall be necessary to amend or supplement the
Prospectus to comply with the Act, the Sponsor promptly will notify the
Underwriters of such event and promptly will prepare, at its own expense,
an amendment or supplement which will correct such statement or omission.
Neither the Underwriters' consent to, nor the Underwriters' distribution
of any amendment or supplement to the Prospectus shall constitute a waiver
of any of the conditions set forth in Section 6 hereof.
(d) The Sponsor will, so long as delivery of a prospectus by an
underwriter or dealer is required by the Act, furnish to the Underwriters
copies of any preliminary prospectus, the Prospectus, the Registration
Statement and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as the Underwriters
reasonably request.
10
(e) The Sponsor will take all actions which are necessary to
arrange for the qualification of the Notes for offering and sale under the
laws of such jurisdictions as the Underwriters designate and will continue
such qualifications in effect so long as required under such laws for the
distribution of the Notes; provided, however, that in no event shall the
Sponsor be obligated to qualify as a foreign corporation or to execute a
general or unlimited consent or take any action that would subject it to
service of process in any such jurisdiction.
(f) The Sponsor shall, at all times upon request of the
Underwriters or their advisors, or both, from the date hereof through the
Closing Date, (i) make available to the Underwriters or its advisors, or
both, prior to acceptance of its purchase, such information (in addition
to that contained in the Registration Statement and the Prospectus)
concerning the offering, the Sponsor and any other relevant matters as
they possess or can acquire without unreasonable effort or expense,
including any and all documentation requested in connection with its due
diligence efforts regarding information in the Registration Statement and
the Prospectus and in order to evidence the accuracy or completeness of
any of the conditions contained in this Agreement and (ii) provide the
Underwriters or its advisors, or both, prior to acceptance of its
subscription, the reasonable opportunity to ask questions of Collegiate
Funding, the Sponsor, the Seller, the Master Servicer and the
Administrator with respect to such matters.
(g) Until the retirement of the Notes, the Sponsor will deliver to
the Underwriters the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the
Indenture Trustee or the Eligible Lender Trustee pursuant to the Basic
Documents, as soon as such statements and reports are furnished to the
Indenture Trustee or the Eligible Lender Trustee.
(h) So long as any of the Notes are outstanding, the Sponsor will
furnish to the Underwriters as soon as practicable after the end of the
fiscal year, all documents required to be distributed to Noteholders or
filed with the Commission on behalf of the Sponsor pursuant to the
Exchange Act, or any order of the Commission thereunder.
(i) On or before the Closing Date (or, in the case of Financed
Student Loans to be acquired after by the Trust from the Sponsor pursuant
to the Sponsor Student Loan Purchase Agreement after the Closing Date, on
or before the date of such acquisition), the Sponsor shall cause the
computer records of the Sponsor, the Seller, the Master Servicer, the
Sub-Servicer, the Custodian, the Originating Agent and the Administrator
relating to the Financed Student Loans to show the ownership by the
Eligible Lender Trustee on behalf of the Trust of the Financed Student
Loans, and from and after the Closing Date (or such later date of
acquisition) none of the Sponsor, the Seller, the Master Servicer, the
Sub-Servicer, the Custodian, the Originating Agent or the Administrator
shall take any action inconsistent with the ownership by the Eligible
Lender Trustee on behalf of the Trust of such Financed Student Loans,
other than as permitted by the Master Servicing Agreement.
(j) To the extent, if any, that any of the ratings provided with
respect to the Notes by the rating agency or agencies that initially rate
any of the Notes are conditioned
11
upon the furnishing of documents or the taking of any other actions by the
Sponsor, the Seller, the Master Servicer, the Sub-Servicer, the Custodian,
the Originating Agent or the Administrator on or prior to the Closing
Date, the Sponsor shall or shall cause the Sponsor, the Seller, the Master
Servicer, the Sub-Servicer, the Custodian, the Originating Agent or the
Administrator, as applicable, to furnish such documents and take any such
other actions. A copy of any such documents shall be provided to the
Underwriters at the time it is delivered to the rating agencies.
(k) The Sponsor will cause the Trust to pay from amounts deposited
into the Acquisition Fund on the Closing Date, or to the extent such
amounts are not sufficient, the Sponsor will pay, all expenses incident to
the performance of its obligations under this Agreement, including, with
limitation, (i) the printing and filing of the documents (including the
Registration Statement and the Prospectus); (ii) the preparation, issuance
and delivery of the Notes to the Underwriters; (iii) the fees and
disbursements of Collegiate Funding's, the Sponsor's, the Seller's, the
Master Servicer's and the Administrator's counsel (including without
limitation, local counsel) and accountants; (iv) the qualification of the
Notes under state securities laws, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and
in connection with the preparation of any blue sky or legal investment
survey, if any is requested; (v) the printing and delivery to the
Underwriters of copies of the Registration Statement and the Prospectus
and each amendment thereto; (vi) the reasonable expenses of the
Underwriters (other than its counsel); (vii) the fees and reasonable
expenses of counsel to the Underwriters, (viii) any fees charged by rating
agencies for the rating of the Notes, (ix) the fees and expenses of the
Trust and its counsel; (x) the fees and expenses of the Delaware Trustee,
the Indenture Trustee and the Eligible Lender Trustee, and each of their
counsel; and (xi) any set-up fee charged by the LIBOR Swap Counterparty.
(l) The Sponsor will cause the Trust to make generally available
to holders of Notes, as soon as practicable, but in any event not later
than eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earnings statement
of the Trust (which need not be audited) complying with Section 11(a) of
the Act (including, at the option of the Sponsor, Rule 158).
(m) The Sponsor will cooperate with the Underwriters and with
their counsel in connection with the qualification of, or procurement of
exemptions with respect to, the Notes for offering and sale by the
Underwriters and by dealers under the securities or Blue Sky laws of such
jurisdictions as the Underwriters may designate and will file such
consents to service of process or other documents necessary or appropriate
in order to effect such qualification or exemptions; provided that in no
event shall the Sponsor 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.
12
(n) The Sponsor consents to the use, in accordance with the
securities or Blue Sky laws of such jurisdictions in which the Notes are
offered by the Underwriters and by dealers, of the Prospectus furnished by
the Sponsor.
(o) The net proceeds from the sale of the Notes hereunder will be
applied substantially in accordance with the description set forth in the
Prospectus.
(p) Except as stated in this Agreement and in the Prospectus, the
Sponsor 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.
(q) For the period beginning on the date of this Agreement and
ending 90 days hereafter, none of the Sponsor, Collegiate Funding or any
entity affiliated, directly or indirectly, with the Sponsor or Collegiate
Funding will, without prior written notice to the Underwriters, offer to
sell or sell notes (other than the Notes) collateralized by student loans;
provided, however, that this shall not be construed to prevent the sale of
student loan applications or student loans by Collegiate Funding.
(r) If, at the time the Registration Statement became effective,
any information shall have been omitted therefrom in reliance upon Rule
430A under the Act, then, immediately following the execution of this
Agreement, the Sponsor 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.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase and pay for the Notes will be subject to the
accuracy, as of the date hereof and as of the Closing Date, of the
representations and warranties of Collegiate Funding and the Sponsor herein, to
the accuracy of the written statements of officers of Collegiate Funding, the
Sponsor, the Seller, the Master Servicer, the Administrator, the Sub-Servicer,
the Custodian, the Originating Agent, the Delaware Trustee, the Indenture
Trustee and the Eligible Lender Trustee made pursuant to the provisions of this
Section, to the performance by Collegiate Funding and the Sponsor of their
obligations hereunder and to the following additional conditions precedent:
(a) The Underwriters shall have received a letter, of Ernst &
Young, LLP, dated on or prior to the date hereof, confirming that such
accountants are independent public accountants within the meaning of the
Act, and substantially in the form of the drafts to which the Underwriters
have previously agreed and otherwise in form and substance satisfactory to
the Underwriters and counsel for the Underwriters (i) regarding certain
numerical information contained in the Prospectus and (ii) relating to
certain agreed-upon procedures.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Act and Section 5(a) hereof. On or prior to the
Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
13
proceedings for that purpose shall have been instituted or, to the
knowledge of the Sponsor, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development involving
a prospective change, in or affecting the Financed Student Loans or
particularly the business or properties of the Trust, Collegiate Funding,
the Sponsor, the Seller, the Master Servicer, the Sub-Servicer, the
Custodian, the Originating Agent, the Administrator or the LIBOR Swap
Counterparty, which, in the sole discretion of the Underwriters,
materially impairs the investment quality of the Notes; (ii) any
downgrading in the rating of any securities of Collegiate Funding, the
Sponsor, the Seller, the Master Servicer, the Sub-Servicer, the Custodian
or the Originating Agent, by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance
or review its rating of any such debt securities (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any
suspension or limitation of trading in securities generally on the New
York Stock Exchange, American Stock Exchange, or NASDAQ National Market,
or any setting of minimum or maximum prices for trading on such exchange;
(iv) any banking moratorium declared by Federal or New York authorities;
(v) any outbreak or escalation of hostilities in which the United States
is involved, any declaration of war or national emergency by Congress, any
material disruption in the financial markets or any other substantial
national or international calamity or emergency if, in the sole judgment
of the Underwriters, the effect of any such outbreak, escalation,
declaration, material disruption, calamity or emergency makes it
impractical or inadvisable to proceed with the public offering or the
delivery of the Notes as contemplated by the Registration Statement, as
amended as of the date hereof; (vi) a material disruption has occurred in
securities settlement or clearance services in the United States; or (vii)
any event or development which makes any statement made in the
Registration Statement or Prospectus untrue or which, in the opinion of
the Sponsor or Collegiate Funding and their 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.
(d) On the Closing Date, each of the Basic Documents and the Notes
shall have been duly authorized, executed and delivered by the parties
thereto, shall be in full force and effect and no default shall exist
thereunder, and the Indenture Trustee and the Underwriters shall each have
received a fully executed copy thereof or, with respect to the Notes, a
conformed copy thereof. The Basic Documents and the Notes shall be
substantially in the forms heretofore provided to the Underwriters.
(e) The Underwriters shall have received an opinion of XxXxxxx
Xxxx, dated the Closing Date and satisfactory in form and substance to the
Underwriters, to the effect that:
14
(i) Each of Collegiate Funding, the Master Servicer and the
Administrator has been duly formed and is validly existing as a
limited liability company in good standing under the laws of its
jurisdiction of organization, with full power and authority to own
its properties and conduct its business, and is duly qualified to
transact business and is in good standing in each jurisdiction in
which its failure to qualify would have a material adverse effect
upon transactions contemplated by the Basic Documents and its
business or the ownership of its property.
(ii) Each of the Basic Documents to which Collegiate Funding,
the Master Servicer or the Administrator is a party is the legal,
valid and binding obligation of Collegiate Funding, the Master
Servicer and the Administrator, as applicable, enforceable against
Collegiate Funding, the Master Servicer and the Administrator in
accordance with its terms.
(iii) Neither the execution, delivery and performance by
Collegiate Funding, the Master Servicer or the Administrator,
respectively, of the Basic Documents to which it is a party, nor the
consummation by Collegiate Funding, the Master Servicer or the
Administrator, as applicable, of the transactions contemplated
thereby, will conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of Collegiate Funding, the Master
Servicer or the Administrator, as applicable, pursuant to the terms
of the formation documents of Collegiate Funding, the Master
Servicer or the Administrator, as applicable, or any statute, rule,
regulation or order of any governmental agency or body, or any court
having jurisdiction over Collegiate Funding, the Master Servicer or
the Administrator, as applicable, or its properties, or any
agreement or instrument known to such counsel after due
investigation to which Collegiate Funding, the Master Servicer or
the Administrator, as applicable, is a party or by which Collegiate
Funding, the Master Servicer or the Administrator, as applicable, or
any of its properties is bound.
(iv) No authorization, license, approval, consent or order
of, or filing with, any court or governmental agency or authority is
necessary in connection with the execution, delivery and performance
by Collegiate Funding, the Master Servicer or the Administrator,
respectively, of the Basic Documents to which it is a party, except
for those which have been obtained and except for those that may be
required under state securities or Blue Sky laws.
(v) There are no legal or governmental proceedings known to
such counsel to be pending to which Collegiate Funding, the Master
Servicer or the Administrator is a party or of which any property of
Collegiate Funding, the Master Servicer or the Administrator is the
subject, nor are any such proceedings known to such counsel to be
threatened or contemplated by governmental authorities or threatened
by others (i) asserting the invalidity of all or any part of the
Basic Documents to which Collegiate Funding, the Master Servicer or
the
15
Administrator is a party, or (ii) that could materially adversely
affect the ability of Collegiate Funding, the Master Servicer or the
Administrator to perform its obligations under Basic Documents to
which it is a party.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America
(excluding federal securities and tax laws) and the laws of the State of
Virginia.
(f) The Underwriters shall have received an opinion of Stroock &
Stroock & Xxxxx LLP, special counsel to the Sponsor and the Seller, dated
the Closing Date and satisfactory in form and substance to the
Underwriters, to the effect that:
(i) The Sponsor has been duly formed and is validly existing
as a limited liability company in good standing under the laws of
its jurisdiction of organization, with full power and authority to
own its properties, conduct its business and consummate the
transactions contemplated by the Basic Documents to which it is a
party.
(ii) Each of the Basic Documents to which the Sponsor is a
party is the legal, valid and binding obligation of the Sponsor
enforceable against the Sponsor in accordance with its terms.
(iii) Each of the Basic Documents to which the Seller is a
party is the legal, valid and binding obligation of the Seller
enforceable against the Seller in accordance with its terms.
(iv) When the Notes have been duly executed, authenticated
and delivered in accordance with the Indenture and paid for pursuant
to this Agreement, the Notes will be validly issued and outstanding,
entitled to the benefits of the Indenture and enforceable in
accordance with their terms.
(v) The Registration Statement is effective under the Act
and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement or any
part thereof or any amendment thereto has been issued under the Act
and no proceeding for that purpose has been instituted or threatened
by the Commission.
(vi) The Sponsor is not, and will not as a result of the
offer and sale of the Notes as contemplated in the Prospectus and
this Agreement become, required to be registered as an "investment
company" as defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act").
(vii) The Trust is not, and will not as a result of the offer
and sale of the Notes as contemplated in the Prospectus and this
Agreement become, required to be registered under the Investment
Company Act.
16
(viii) The Indenture has been duly qualified under the Trust
Indenture Act.
(ix) The statements in the Prospectus Supplement under the
headings "SUMMARY OF TERMS -- Federal income tax consequences,"
"Certain Federal Income Tax Considerations," "Summary of Terms --
ERISA considerations," and "ERISA Considerations," and in the Base
Prospectus under the headings "Federal Income Tax Consequences,"
"ERISA Considerations" and "Description of the Federal Family
Education Loan Program," to the extent that they constitute
statements of matters of law or legal conclusions with respect
thereto, have been reviewed by such counsel and accurately describe
the matters discussed therein.
(x) The Notes will be properly characterized as debt for
federal income tax purposes under federal income tax law and the
Trust will not be characterized as an association (or publicly
traded partnership) taxable as a corporation under federal income
tax law.
(xi) The Registration Statement, as of its effective date,
and the Prospectus as of the date of this Agreement, and any
amendment or supplement thereto, as of its date, complied as to form
in all material respects with the requirements of the Act (except
with respect to the financial statements, the exhibits, annexes and
other financial, statistical, numerical or portfolio data, economic
conditions or financial condition of the portfolio information
included in or incorporated by reference into the Registration
Statement relating to the Notes, the Prospectus or any amendment or
supplement thereto).
(xii) No facts have come to such counsel's attention which
cause them to believe that the Registration Statement, as of its
effective date, and the Prospectus, as of the date of this
Agreement, or any amendment or supplement thereto, as of its date
when it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus on its date contained or on the
Closing Date contains, any untrue statement of a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided that such counsel need not express any view with respect to
(A) the financial, statistical or computational material included in
or incorporated by reference into the Registration Statement, the
Prospectus or any amendment or supplement thereto; or (B) statements
in the Prospectus Supplement under the captions "The Student Loan
Operations of Collegiate Funding Services Education Loan Trust
2004-A--Description of CFS-SunTech Servicing LLC," "Information
Relating to the Guarantee Agencies--American Student Assistance,"
"--Great Lakes Higher Education Guaranty Corporation" or "--Texas
Guaranteed Student Loan Corporation" or "LIBOR Derivative Product
Agreement--Counterparty to the LIBOR Derivative Product Agreement."
17
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America
and the laws of the State of New York and the General Corporation Law of
the State of Delaware. In rendering such opinion, such counsel may rely on
the opinion of Xxxxxxxx, Xxxxxx & Finger for certain matters relating to
the laws of the State of Delaware.
(g) The Underwriters shall have received the opinion or opinions
of in-house counsel to the Sponsor, the Master Servicer and the
Administrator and/or such other counsel acceptable to the Underwriters and
counsel for the Underwriters, dated the Closing Date and satisfactory in
form and substance to the Underwriters and counsel for the Underwriters,
to the effect that:
(i) The Sponsor is duly qualified to transact business and
is in good standing in each jurisdiction in which its failure to
qualify would have a material adverse effect upon transactions
contemplated by the Basic Documents and its business or ownership of
its property.
(ii) Neither the execution, delivery and performance by the
Sponsor of the Basic Documents to which it is a party, nor the
consummation by the Sponsor of the transactions contemplated
thereby, will conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of the Sponsor, pursuant to the terms
of the limited liability company agreement of, or any statute, rule,
regulation or order of any governmental agency or body, or any court
known to such counsel to be applicable to the Sponsor or its
properties, or any agreement or instrument known to such counsel to
which the Sponsor is a party or by which any of its properties are
bound.
(iii) No authorization, license, approval, consent or order
of, or filing with, any court or governmental agency or authority,
which has not been obtained or accomplished by the Sponsor, is
necessary to be obtained or accomplished by the Sponsor in
connection with the execution, delivery and performance of this
Agreement and each of other the Basic Documents to which it is a
party, except for those that may be required under state securities
or Blue Sky laws.
(iv) There are no legal or governmental proceedings known to
such counsel to be pending to which the Sponsor, the Master Servicer
or the Administrator is a party or of which any property of the
Sponsor, the Master Servicer or the Administrator is the subject,
nor are any such proceedings known to such counsel to be threatened
or contemplated by governmental authorities or threatened by others
(i) asserting the invalidity of all or any part of the Basic
Documents or (ii) that could materially adversely affect the ability
of the Sponsor,
18
the Master Servicer or the Administrator to perform its obligations
under the Basic Agreements to which it is a party.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America
(excluding federal securities and tax laws).
(h) The Underwriters shall have received opinions of Stroock &
Stroock & Xxxxx LLP and Xxxxxxxx, Xxxxxx & Finger, each dated the Closing
Date, satisfactory in form and substance to the Underwriters and counsel
for the Underwriters to the effect that the Indenture Trustee has a valid
and perfected, first priority security interest in the Financed Eligible
Loans under the Indenture.
(i) The Underwriters shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, special counsel to the Seller, dated the Closing Date,
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, to the effect that:
(i) The Seller has been duly formed and is validly existing
in good standing as a limited liability company under the laws of
the State of Delaware.
(ii) Under the Delaware Limited Liability Company Act, 6 Del.
C. Section 18-101, et seq. (the "LLC Act"), and the Seller's limited
liability company agreement, the Seller has all necessary limited
liability company power and authority to execute and deliver the
Basic Documents to which it is a party and to perform its
obligations thereunder.
(iii) Under the LLC Act and the Seller's limited liability
company agreement, the execution and delivery by the Seller of the
Basic Documents to which it is a party, and the performance by the
Seller of its obligations thereunder, have been duly authorized by
all necessary limited liability company action on the part of the
Seller.
(iv) The execution and delivery by the Seller of the Basic
Documents to which it is a party, and the performance by the Seller
of its obligations thereunder, do not violate (A) any Delaware law,
rule or regulation, or (B) the Seller's limited liability company
certificate or the Seller's limited liability company agreement.
(v) No authorization, consent, approval or order of any
Delaware court or any Delaware governmental or administrative body
is required solely in connection with the execution and delivery by
the Seller of the Basic Documents to which it is a party or the
performance by the Seller of its obligations thereunder.
(vi) The security interest granted by the Seller to the
Sponsor in the Financed Student Loans is perfected under Delaware
Law.
19
(j) The Underwriters shall have received opinions of Stroock &
Stroock & Xxxxx LLP, in its capacity as counsel to the Sponsor, dated the
Closing Date and satisfactory in form and substance to the Underwriters
and counsel for the Underwriters, with respect to the creation of a "true
sale" with respect to the transfer of the Financed Student Loans from the
Seller to the Sponsor and nonconsolidation of (i) the Seller and the
Sponsor and (ii) Collegiate Funding and the Sponsor. Such opinions shall
be limited to the laws of the State of New York and United States federal
law.
(k) The Underwriters shall have received an opinion of Stroock &
Stroock & Xxxxx LLP, in its capacity as counsel to the Sponsor, dated the
Closing Date and satisfactory in form and substance to the Underwriters
and counsel for the Underwriters, with respect to the creation of a "true
sale" or perfected security interest with respect to the transfer of the
Financed Student Loans from the Sponsor to the Trust and nonconsolidation
of the Sponsor and the Trust. Such opinion shall be limited to the laws of
the States of New York and United States federal law.
(l) The Underwriters shall have received an opinion of counsel to
the Indenture Trustee and the Eligible Lender Trustee, dated the Closing
Date and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, to the effect that:
(i) Each of the Indenture Trustee and the Eligible Lender
Trustee has been duly organized as a national banking association
and is validly existing and in good standing under the laws of the
United States.
(ii) Each of the Indenture Trustee and the Eligible Lender
Trustee has the requisite power and authority to execute, deliver
and perform its obligations under the Indenture and each other Basic
Document to which it is a party and has taken all necessary action
to authorize the execution, delivery and performance by it of the
Indenture and each such Basic Document.
(iii) The Eligible Lender Trustee has the full corporate trust
power to accept the office of eligible lender trustee under the
Sponsor Student Loan Purchase Agreement and the Indenture.
(iv) Each of the Indenture and each other Basic Document to
which it is a party has been duly executed and delivered by the
Indenture Trustee and the Eligible Lender Trustee, as applicable,
and constitutes a legal, valid and binding obligation of the
Indenture Trustee and the Eligible Lender Trustee, enforceable
against the Indenture Trustee and the Eligible Lender Trustee in
accordance with its respective terms.
(v) The Notes have been duly authenticated and delivered by
the Indenture Trustee in accordance with the terms of the Indenture.
(vi) The execution and delivery by the Indenture Trustee and
the Eligible Lender Trustee of the Indenture and each other Basic
Document to which
20
it is a party do not require any consent, approval or authorization
of, or any registration or filing with, any applicable governmental
authority.
(vii) None of (A) the consummation by the Indenture Trustee or
the Eligible Lender Trustee of the transactions contemplated in the
Basic Documents or (B) the fulfillment of the terms thereof by the
Indenture Trustee, the Eligible Lender Trustee or the Trust, as the
case may be, will conflict with, result in a breach or violation of,
or constitute a default under any law or the Articles of
Association, Bylaws or other organizational documents of the
Indenture Trustee or the Eligible Lender Trustee or the terms of any
indenture or other agreement or instrument known to such counsel
after due investigation and to which the Indenture Trustee or the
Eligible Lender Trustee or any of its subsidiaries is a party or by
which it or any of them is bound or any judgment, order or decree
known to such counsel to be applicable to the Indenture Trustee or
the Eligible Lender Trustee or any of its subsidiaries, of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Indenture Trustee or the
Eligible Lender Trustee or any of its subsidiaries.
(viii) The Eligible Lender Trustee is an "eligible lender" for
purposes of the FFELP Program in its capacity as eligible lender
trustee with respect to the Financed Student Loans.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America
and the laws of the State of New York.
(m) The Underwriters shall have received an opinion of counsel to
the Delaware Trustee, dated the Closing Date and satisfactory in form and
substance to the Underwriters and its counsel, to the effect that:
(i) The Delaware Trustee is duly incorporated and is validly
existing and in good standing as a banking corporation under the
laws of the State of Delaware and has the power and authority to
execute, deliver and perform its obligations under the Trust
Agreement.
(ii) The Trust Agreement has been duly authorized, executed
and delivered by the Delaware Trustee.
(iii) Neither the execution, delivery and performance by the
Delaware Trustee of the Trust Agreement, nor the consummation of any
of the transactions by the Delaware Trustee contemplated thereby,
requires the consent or approval of, the withholding of objection on
the part of, the giving of notice to, the filing, registration or
qualification with, or the taking of any other action in respect of,
any governmental authority or agency under the laws of the State of
Delaware or
21
the federal laws of the United States of America governing the trust
powers of the Delaware Trustee.
(iv) Neither the execution, delivery and performance by the
Delaware Trustee of the Trust Agreement, nor the consummation of any
of the transactions by the Delaware Trustee contemplated thereby, is
in violation of the charter or bylaws of the Delaware Trustee or of
the laws of the State of Delaware or of the federal laws of the
United States of America governing the trust powers of the Delaware
Trustee or, to our knowledge, without independent investigation, of
any indenture, mortgage, bank credit agreement, note or bond
purchase agreement, long-term lease, license or other agreement or
instrument to which it is a party or by which it is bound or, to our
knowledge, without independent investigation, of any judgment or
order applicable to the Delaware Trustee.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the laws of the State of Delaware.
(n) The Underwriters shall have received copies of each opinion of
counsel delivered to the Rating Agencies, together with a letter addressed
to the Underwriters, dated the Closing Date, to the effect that the
Underwriters may rely on each such opinion to the same extent as though
such opinion was addressed to each as of its date.
(o) The Underwriters shall have received an opinion of counsel to
the LIBOR Swap Counterparty, dated the Closing Date, in form and substance
satisfactory to the Underwriters and their counsel.
(p) The Underwriters shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, special Delaware counsel for the Trust, dated the Closing
Date, in form and substance satisfactory to the Underwriters and their
counsel, to the effect that:
(i) The Trust has been duly formed and is validly existing
as a statutory trust under the Delaware Statutory Trust Act, 12 Del.
C. Section 3801, et seq. (the "Trust Act"), and has the power and
authority under the Trust Agreement and the Trust Act to execute,
deliver and perform its obligations under the Basic Documents to
which it is a party.
(ii) Each of the Basic Documents to which the Trust is a
party has been duly authorized, executed and delivered by the Trust.
(iii) The Trust Agreement is the legal, valid and binding
obligation of Delaware Trustee and the Sponsor, enforceable against
the Delaware Trustee and the Sponsor in accordance with its terms.
(iv) Neither the execution, delivery and performance by the
Trust of the Basic Documents to which it is a party, nor the
consummation by the Trust of any of the transactions contemplated
thereby, requires the consent or approval of,
22
the withholding of objection on the part of, the giving of notice
to, the filing, registration or qualification with, or the taking of
any other action in respect of, any governmental authority or agency
of the State of Delaware, other than the filing of the Certificate
of Trust and UCC financing statements with the Secretary of State.
(v) Neither the execution, delivery and performance by the
Trust of the Basic Documents to which it is a party, nor the
consummation by the Trust of the transactions contemplated thereby,
is in violation of the Trust Agreement or of any law, rule or
regulation of the State of Delaware applicable to the Trust.
(vi) Under Section 3805(b) of the Trust Act, no creditor of
any Certificateholder shall have any right to obtain possession of,
or otherwise exercise legal or equitable remedies with respect to,
the property of the Trust except in accordance with the terms of the
Trust Agreement.
(vii) Under the Trust Act, the Trust is a separate legal
entity and, assuming that the Sponsor Student Loan Purchase
Agreement conveys good title to the Trust property to the Trust as a
true sale and not as a security arrangement, the Trust rather than
the Certificateholders will hold whatever title to the Trust
property as may be conveyed to it from time to time pursuant to the
Sponsor Student Loan Purchase Agreement, except to the extent that
the Trust has taken action to dispose of or otherwise transfer or
encumber any part of the Trust property.
(viii) Under Section 3805(c) of the Trust Act, except to the
extent otherwise provided in the Trust Agreement, a
Certificateholder (including the Sponsor in its capacity as such)
has no interest in specific Trust property.
(ix) Under Section 3808(a) and (b) of the Trust Act, the
Trust may not be terminated or revoked by any Certificateholder, and
the dissolution, termination or bankruptcy of any Certificateholder
shall not result in the termination or dissolution of the Trust,
except to the extent otherwise provided in the Trust Agreement.
(q) The Underwriters shall have received an opinion of counsel to
CFS-SunTech, dated the Closing Date and satisfactory in form and substance
to the Underwriters and counsel for the Underwriters, to the effect that:
(i) CFS-SunTech has been duly formed and is validly existing
as a limited liability company in good standing under the laws of
its jurisdiction of organization, with full power and authority to
own its properties and conduct its business, and is duly qualified
to transact business and is in good standing in each jurisdiction in
which its failure to qualify would have a material adverse effect
upon transactions contemplated by the Basic Documents and its
business or the ownership of its property.
23
(ii) The Sub-Servicing Agreement, the Custodian Agreements,
the Seller Origination Agreement and the Origination Agreement have
been duly authorized, executed and delivered by CFS-SunTech.
(iii) The Sub-Servicing Agreement, the Custodian Agreements,
the Seller Origination Agreement and the Origination Agreement are
the legal, valid and binding obligations of CFS-SunTech enforceable
against CFS-SunTech in accordance with its terms.
(iv) Neither the execution, delivery and performance by
CFS-SunTech of the Sub-Servicing Agreement, the Custodian
Agreements, the Seller Origination Agreement or the Origination
Agreement, nor the consummation by CFS-SunTech of the transactions
contemplated thereby, will conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of CFS-SunTech,
pursuant to the terms of the formation documents of CFS-SunTech or
any statute, rule, regulation or order of any governmental agency or
body, or any court having jurisdiction over CFS-SunTech or its
properties, or any agreement or instrument known to such counsel
after due investigation to which CFS-SunTech is a party or by which
CFS-SunTech or any of its properties is bound.
(v) No authorization, license, approval, consent or order
of, or filing with, any court or governmental agency or authority is
necessary in connection with the execution, delivery and performance
of the Sub-Servicing Agreement, the Custodian Agreements, the Seller
Origination Agreement or the Origination Agreement.
(vi) There are no legal or governmental proceedings known to
such counsel to be pending to which CFS-SunTech is a party or of
which any property of CFS-SunTech is the subject, nor are any such
proceedings known to such counsel to be threatened or contemplated
by governmental authorities or threatened by others (i) asserting
the invalidity of all or any part of the Sub-Servicing Agreement,
the Custodian Agreements, the Seller Origination Agreement or the
Origination Agreement or (ii) that could materially adversely affect
the ability of CFS-SunTech to perform its obligations under the
Sub-Servicing Agreement, the Custodian Agreements, the Seller
Origination Agreement or the Origination Agreement.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters.
(r) The Underwriters shall have received an opinion of counsel to
the Investment Agreement Provider, dated the Closing Date, in form and
substance satisfactory to the Underwriters and their counsel.
24
(s) The Underwriters shall have received a certificate dated the
Closing Date of the Sponsor, executed by any two of the Chairman of the
Board, the President, any Executive Vice President, Senior Vice President
or Vice President, the Treasurer, any Assistant Treasurer, the Secretary,
the principal financial officer or the principal accounting officer of the
Sponsor, in which such officer shall state that, (i) the representations
and warranties of the Sponsor contained in this Agreement and the other
Basic Documents to which it is a party are true and correct in all
material respects, (ii) that the Sponsor 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, and (iii) except as
may be disclosed in the Prospectus or in such certificate, no material
adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or properties of
the Sponsor has occurred.
(t) The Underwriters shall have received a certificate dated the
Closing Date of Collegiate Funding, executed by any two of the Chairman of
the Board, the President, any Executive Vice President, Senior Vice
President or Vice President, the Treasurer, any Assistant Treasurer, the
Secretary, the principal financial officer or the principal accounting
officer of Collegiate Funding, in which such officer shall state that, (i)
the representations and warranties of Collegiate Funding contained in this
Agreement are true and correct in all material respects, (ii) that
Collegiate Funding 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, and (iii) except as may be disclosed in
the Prospectus or in such certificate, 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.
(u) The Underwriters shall have received a certificate dated the
Closing Date of each of the Master Servicer and the Administrator,
executed by any two of the Chairman of the Board, the President, any
Executive Vice President, Senior Vice President or Vice President, the
Treasurer, any Assistant Treasurer, the Secretary, the principal financial
officer or the principal accounting officer of the Master Servicer and the
Administrator, as applicable, in which such officer shall state that (i)
the representations and warranties of the Master Servicer and the
Administrator, as applicable, contained in the Basic Documents to which it
is a party are true and correct in all material respects, (ii) that the
Master Servicer and the Administrator, as applicable, have 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 and (iii)
except as may be disclosed in the Prospectus or in such certificate, no
material adverse change, or any development involving a prospective
material adverse change, in or affecting particularly the business or
properties of the Master Servicer and the Administrator, as applicable,
has occurred.
(v) The Underwriters shall have received a certificate of a
responsible officer of CFS-SunTech, dated the Closing Date, in form and
substance satisfactory to the Underwriters and their counsel.
25
(w) The Underwriters shall have received a certificate of a
responsible officer of the Auction Agent, dated the Closing Date, in form
and substance satisfactory to the Underwriters and their counsel.
(x) The Underwriters shall have received evidence satisfactory to
it and counsel for the Underwriters that, on or before the Closing Date,
the Sponsor Financing Statements, the Seller Financing Statements and the
Trust Financing Statements shall have been submitted for filing in the
appropriate filing offices.
(y) The Underwriters shall have received written evidence
satisfactory to them and counsel for the Underwriters that the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class A-5 Notes and the Class A-6 Notes shall each be rated "Aaa" by
Xxxxx'x and "AAA" by S&P, and the Class B Notes shall be rated at least
"A2" by Xxxxx'x and at least "A" by S&P, and neither corporation shall
have placed the Notes under surveillance or review with possible negative
implications.
(z) The Underwriters shall have received certificates dated the
Closing Date from each Guarantee Agency, satisfactory to the Underwriters
and counsel for the Underwriters, certifying as to certain information
with respect to each such Guarantee Agency contained in the Prospectus.
The Sponsor will provide or cause to be provided to the Underwriters such
conformed copies of such of the foregoing opinions, certificates, letters and
documents as the Underwriters shall reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Sponsor and Collegiate Funding, jointly and severally,
agree to indemnify and hold harmless the Underwriters and each person, if
any, who controls the Underwriters within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, and the
respective affiliates, officers, directors and employees of the
Underwriters and each such person, against any losses, claims, damages or
liabilities, joint or several, to which the Underwriters or such
controlling person and the respective affiliates, officers, directors and
employees of the Underwriters and each such person may become subject,
under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or
arising out of or based upon the omission or alleged omission to state
therein a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; except
insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission
based upon information relating to the Underwriters furnished to the
Sponsor in writing by the Underwriters expressly for use therein;
provided, however, that the indemnification contained in this paragraph
7(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,
26
claim, damage or liability 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 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 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.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Sponsor and Collegiate Funding and their
directors, officers and each Person, if any, who controls the Sponsor or
Collegiate Funding within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Sponsor to the Underwriters set forth in
paragraph 7(a) above, but only with reference to information relating to
such Underwriter furnished to the Sponsor in writing by such Underwriter
expressly for use in any Preliminary Prospectus or the Prospectus or any
amendments or supplements thereto. The written information furnished by
the Underwriters to the Sponsor consists solely of the information set
forth in the second paragraph (excluding the first sentence thereof), the
first sentence of the fifth paragraph and the eighth paragraph under the
heading "Plan of Distribution" in the Prospectus Supplement (the
"Underwriters' Information").
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of
which indemnity may be sought pursuant to Section 7(a) or 7(b) above, such
Person (the "Indemnified Party") shall promptly notify the Person against
whom such indemnity may be sought (the "Indemnifying Party") in writing;
provided, however, that the failure to notify the Indemnifying Party shall
not relieve the Indemnifying Party from any liability which it may have
under this Section 7 except to the extent that it has been materially
prejudiced by such failure and, provided further, that the failure to
notify the Indemnifying Party shall not relieve the Indemnifying Party
from any liability which it may have to the Indemnified Party otherwise
than under this Section 7. The Indemnifying Party, upon request of the
Indemnified Party, shall retain counsel satisfactory to the Indemnified
Party to represent the Indemnified Party and any others the Indemnifying
Party may designate in such proceeding and shall pay the reasonable fees
and disbursements of such counsel related to such proceeding. In any such
proceeding, an Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such
counsel, (ii) the named parties to any such proceeding (including any
impleaded parties) include both the Indemnifying Party and the Indemnified
Party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them,
or (iii) the Indemnifying Party fails to retain counsel as provided in the
preceding sentence. It is understood that the Indemnifying Party shall
not, in respect of the legal expenses of any Indemnified Party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such Indemnified
Parties and that all such fees and
27
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Underwriters, in the case of parties
indemnified pursuant to Section 7(a) above, and by the Sponsor or
Collegiate Funding, in the case of parties indemnified pursuant to Section
7(b) above. The Indemnifying Party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Party agrees to indemnify the Indemnified Party from and
against any loss or liability by reason of such settlement or judgment. No
Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Party is or could have been
a party and indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement (i) does not include a statement as to or
admission of, fault, culpability or a failure to act by or on behalf of
any such Indemnified Party, and (ii) includes an unconditional release of
such Indemnified Party from all liability on claims that are the subject
matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a)
or 7(b) above is unavailable to an Indemnified Party or is insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then each Indemnifying Party under such paragraph, in lieu of indemnifying
such Indemnified Party thereunder, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Sponsor and Collegiate Funding on
the one hand and an Underwriter on the other hand from the offering of the
Notes or (ii) if the allocation provided by clause 7(d)(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 7(d)(i) above
but also the relative fault of the Sponsor or Collegiate Funding on the
one hand and of an Underwriter on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Sponsor and Collegiate Funding on the
one hand and an Underwriter on the other hand in connection with the
offering of the Notes shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Notes (before
deducting expenses) received by the Sponsor and the total discounts and
commissions received by such Underwriter, in each case as set forth in the
Prospectus, bear to the aggregate offering price of the Notes. The
relative fault of the Sponsor and Collegiate Funding on the one hand and
of an Underwriter on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Sponsor, Collegiate Funding or by
an Underwriter and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) The Sponsor, Collegiate Funding and the Underwriters agree
that it would not be just or equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 7(d) above. The amount paid or payable by an
Indemnified Party as a result of the losses, claims, damages and
liabilities referred
28
to in Section 7(d) 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 or defending any such
action or claim. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the
amount of its underwriting compensation. 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.
8. DEFAULT OF UNDERWRITER. If, at the Closing, any one or more of the
Underwriters shall fail or refuse to purchase Securities that it has or they
have agreed to purchase hereunder on such date, and the aggregate principal
amount of Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is ten percent or less of the aggregate
principal amount of Securities to be purchased on such date, the other
Underwriters may make arrangements satisfactory to the Underwriters for the
purchase of such Securities by other persons (who may include one or more of the
non-defaulting Underwriters, including the Underwriters), but if no such
arrangements are made by the Closing Date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Securities
set forth opposite their respective names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the
Underwriters may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date. If, at the Closing, any Underwriter or Underwriters shall fail or refuse
to purchase Securities and the aggregate principal amount of Securities with
respect to which such default occurs is more than ten percent of the aggregate
principal amount of Securities to be purchased, and arrangements satisfactory to
the Underwriters and the Sponsor for the purchase of such Securities are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Sponsor, except
as provided in Section 10. In any such case, either the Underwriters or the
Sponsor shall have the right to postpone the Closing, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 8. Any action taken under this
Section 8 shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
9. COMPUTATIONAL MATERIALS.
(a) It is understood that the Underwriters may prepare and provide
to prospective investors certain Computational Materials (as defined
below) in connection with the 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, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Peabody & 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
29
February 17, 1995 issued by the Commission to the Public Securities
Association (collectively, the "Xxxxxx/PSA Letters").
(ii) As used herein, "Computational Materials" and the term
"ABS Term Sheets" shall have the meanings given such terms in the
Xxxxxx/PSA Letters, but shall include only those Computational
Materials that have been prepared or delivered to prospective
investors by or at the direction of an Underwriter.
(iii) Each Underwriter shall provide the Sponsor with
representative forms of all Computational Materials prior to their
first use, to the extent such forms have not previously been
approved by the Sponsor for use by such Underwriter. Each
Underwriter shall provide to the Sponsor, for filing on Form 8-K as
provided in Section 9(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 the
Sponsor not later than 10:00 a.m., New York time, one business day
before filing thereof is required pursuant to the terms of this
Agreement.
(iv) If an Underwriter does not provide the Computational
Materials to the Sponsor pursuant to subsection (a)(iii) above, such
Underwriter shall be deemed to have represented, as of the
applicable Closing Date, that it did not provide any prospective
investors with any information in written or electronic form in
connection with the offering of the Notes that is required to be
filed with the Commission in accordance with the Xxxxxx/PSA Letters.
(v) In the event of any delay in the delivery by an
Underwriter to the Sponsor of all Computational Materials required
to be delivered in accordance with subsection (a)(iii) above, the
Sponsor shall have the right to delay the release of the Prospectus
to investors or to such Underwriter, to delay the Closing Date and
to take other appropriate actions in each case as necessary in order
to allow the Sponsor to comply with its agreement set forth in
Section 9(b) to file the Computational Materials by the time
specified therein.
(b) The Sponsor shall file the Computational Materials (if any)
provided to it by the Underwriter under Section 9(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.
10. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Sponsor and Collegiate Funding and their respective officers and of the
Underwriters set forth in or made pursuant to this Agreement or contained in
certificates of officers of the Sponsor or 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, the Sponsor, Collegiate Funding or any of their respective
representatives, officers or directors or
30
any controlling person, and will survive delivery of and payment for the Notes.
If for any reason the purchase of the Notes by the Underwriters is not
consummated, the Sponsor shall remain responsible for the expenses to be paid or
reimbursed by the Sponsor pursuant to Section 5(k) hereof and the respective
obligations of the Sponsor, Collegiate Funding and the Underwriters pursuant to
Section 7 shall remain in effect. If for any reason the purchase of the Notes by
the Underwriters is not consummated (other than because of a failure to satisfy
the conditions set forth in items (iii), (iv) and (v) of Section 6(c) or a
default by the Underwriters pursuant to Section 8), the Sponsor will reimburse
the Underwriters for all out-of-pocket expenses reasonably incurred by it in
connection with the offering of the Notes.
11. NOTICES. Any written request, demand, authorization, direction,
notice, consent or waiver shall be personally delivered or mailed certified
mail, return receipt requested (or in the form of telex or facsimile notice,
followed by written notice as aforesaid) and shall be deemed to have been duly
given upon receipt, if sent to the Underwriters, when delivered to the
Underwriters at X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxx (Fax # (000) 000-0000), UBS
Securities LLC, 1285 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx Xxxxxxx (Fax # (000) 000-0000) and Citigroup Global
Markets Inc., 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx Xxxxxxx (Fax # (000) 000-000-0000) and if sent to the Sponsor
when delivered to 000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxxxx, Xxxxxxxx
00000, Attention: Xxxxxxx X. Xxxxxxxxx, General Counsel (Fax # (000) 000-0000).
12. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any fight or obligations hereunder.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to the
choice of law provisions thereof. The Sponsor and Collegiate Funding hereby
submit to the non-exclusive jurisdiction of the federal and state courts in the
Borough of Manhattan in The City of New York in any suit or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby.
31
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Sponsor and the
Underwriters in accordance with its terms.
Very truly yours,
COLLEGIATE FUNDING OF DELAWARE, L.L.C.
By /s/ Xxxxx Langraver
--------------------------------------
Name Xxxxx Xxxxxxxxxx
Title Treasurer
COLLEGIATE FUNDING SERVICES, L.L.C.
By /s/ Xxxxx Xxxxxxxxxx
--------------------------------------
Name Xxxxx Xxxxxxxxxx
Title Chief Financial Officer
32
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first written above.
X.X. XXXXXX SECURITIES INC. CITIGROUP GLOBAL MARKETS INC.
By /s/ Xxxxxxx X. Xxxxx By /s/ Xxx Ebbot
------------------------------- -----------------------------
Name Xxxxxxx X. Xxxxx Name Xxx Ebbot
Title Vice President Title Director
UBS SECURITIES LLC
By /s/ Xxxx XxXxxxxx
-------------------------------
Name Xxxx XxXxxxxx
Title Executive Director
By /s/ Xxxx Xxxxxx
-------------------------------
Name Xxxx Xxxxxx
Title Director
33
SCHEDULE I
OFFICES
For the Seller: Delaware Secretary of State
For the Sponsor: Delaware Secretary of State
For the Trust: Delaware Secretary of State
SCHEDULE II
INITIAL INITIAL INITIAL INITIAL INITIAL INITIAL INITIAL
PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL
BALANCE OF BALANCE OF BALANCE OF BALANCE OF BALANCE OF BALANCE OF BALANCE OF
UNDERWRITER CLASS A-1 NOTES CLASS A-2 NOTES CLASS A-3 NOTES CLASS A-4 NOTES CLASS A-5 NOTES CLASS A-6 NOTES CLASS B NOTES
Citigroup Global
Markets Inc. $ 62,000,000 $ 87,000,000 $ 52,000,000 $ 35,000,000 $ 0 $ 55,850,000 $ 0
X.X. Xxxxxx
Securities Inc. 125,000,000 176,000,000 103,000,000 70,000,000 0 0 55,700,000
UBS Securities LLC 62,000,000 87,000,000 52,000,000 35,000,000 55,850,000 0 0
SCHEDULE III
SECURITY ORIGINAL PRINCIPAL BALANCE PRICE %
Class A-1 Notes $ 249,000,000 100%
Class A-2 Notes 350,000,000 100
Class A-3 Notes 207,000,000 100
Class A-4 Notes 140,000,000 100
Class A-5 Notes 55,850,000 100
Class A-6 Notes 55,850,000 100
Class B Notes 55,700,000 100
---------------
Total $ 1,113,400,000
===============
Total Purchase Price: $ 1,109,651,195
