Exhbibit 1.1
XXXXX FARGO STUDENT LOAN TRUST 2001-1
$__________ ____% CLASS A-1 FLOATING RATE ASSET-BACKED NOTES
$__________ ____% CLASS A-2 FLOATING RATE ASSET-BACKED NOTES
$__________ ____% CLASS B FLOATING RATE ASSET-BACKED NOTES
UNDERWRITING AGREEMENT
November __, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.,
as Representative of the several
Underwriters named in Schedule II hereto
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. Xxxxx Fargo Student Loans Receivables, LLC (the
"Depositor") 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 $__ billion of asset backed notes. The Depositor proposes to cause Xxxxx
Fargo Student Loan Trust 2001-1 (the "Trust") to issue and sell to the
underwriters listed on Schedule II hereto (the "Underwriters") for which
Xxxxxxx Xxxxx Xxxxxx Inc. (the "Representative") is acting as representative,
$__________ principal amount of its ____% Class A-1 Floating Rate Asset Backed
Notes (the "Class A-1 Notes"), $__________ principal amount of its ____% Class
A-2 Floating Rate Senior Asset Backed Notes (the "Class A-2 Notes") and
$__________ principal amount of its ____% Class B Floating Rate Asset Backed
Notes (the "Class B Notes" and together with the Class A-1 Notes and Class A-2
Notes, the "Notes"). The Trust will be formed by the Depositor pursuant to a
Trust Agreement to be dated as of November __, 2001 (as amended and
supplemented from time to time, the "Trust Agreement") between the Depositor
and Bank One, National Association ("Bank One"), not in its individual
capacity but solely as Eligible Lender Trustee (the "Eligible Lender
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 November __, 2001 (the "Cutoff Date"). Such Initial
Financed Student Loans will be acquired by the Eligible Lender Trustee on
behalf of the Trust from the Depositor and by the Depositor
from Xxxxx Fargo Bank South Dakota, National Association ("WFBSD" or the
"Seller") pursuant to a loan sale agreement, dated as of November __, 2001
(the "Loan Sale Agreement") among the Trust, the Seller, the Depositor and the
Eligible Lender Trustee. Under certain circumstances after the Closing Date
(as defined below), the Eligible Lender Trustee, acting on behalf of the Trust
may acquire additional student loans ("Additional Acquired Student Loans") or
may originate certain student loans (such originated Student Loans, together
with the Initial Financed Student Loans and the Additional Acquired Student
Loans being referred to herein, collectively, as the "Financed Student
Loans"). The Financed Student Loans are to be serviced by WFBSD (the
"Servicer") pursuant to a servicing agreement to be dated as of November __,
2001 (the "Servicing Agreement"), among the Trust, the Servicer, the Depositor
and the Eligible Lender Trustee. The Notes will be issued pursuant to an
Indenture to be dated as of November __, 2001 (as amended and supplemented
from time to time, the "Indenture"), between the Trust and The Chase Manhattan
Bank, a New York banking corporation, as trustee under the Indenture (the
"Indenture Trustee"). In addition, pursuant to the Administration Agreement to
be dated as of November __, 2001 (as amended and supplemented from time to
time, the "Administration Agreement") among the Trust, Xxxxx Fargo Bank
Minnesota, National Association (the "Administrator") and the Indenture
Trustee, the Administrator will agree to perform certain administrative tasks
on behalf of the Trust. The Trust will have the benefit of an interest rate
swap issued pursuant to an ISDA Master Agreement and related confirmation each
to be dated November __, 2001 (a "Rate Swap Agreement"), between the Eligible
Lender Trustee and Xxxxx Fargo Bank, National Association (the "Swap
Counterparty"). A Delaware banking corporation will be appointed as a
co-trustee under the Trust Agreement pursuant to a co-trustee agreement, dated
as of November , 2001 (the "Co-Trustee Agreement"), between such corporation
and the Eligible Lender Trustee.
Capitalized terms used and not otherwise defined herein shall have
the meanings given them in the preliminary prospectus or, if not defined
therein, as defined in Appendix A to the Administration Agreement. As used
herein, the term "Basic Documents" refers to the Servicing Agreement,
Administration Agreement, Indenture, Trust Agreement, Loan Sale Agreement, the
letter agreement in the form of Exhibit "A" hereto (as amended and
supplemented from time to time, the "Letter Agreement"), the Guarantee
Agreements, the Rate Swap Agreement, any demand note issued by WFBSD (the
"Demand Note") and the Depository Agreement.
2. Representations and Warranties of the Depositor. The Depositor
represents and warrants to and agrees with the Underwriters that:
(a) A registration statement on Form S-3 (No. 333-69218), including a
form of prospectus, relating to the Notes has been filed with the Securities
and Exchange Commission (the "Commission") and has become effective. Such
registration statement, as amended as of the date of the Agreement 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) ("Rule 424(b)") under
the Securities Act of 1933, as amended (the "Act"), including all material
incorporated by reference therein, is hereinafter referred to as the
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"Prospectus;" a "preliminary prospectus" means any form of prospectus,
including any prospectus supplement, relating to the Notes used prior to date
of this Agreement that is subject to completion; the "Base Prospectus" means
the base prospectus dated November __, 2001 included in the Prospectus; the
"Prospectus Supplement" means the prospectus supplement dated the date hereof
included in the Prospectus .
(b) On the effective date of the Registration Statement, such
registration statement conformed in all material respects to the requirements
of the Act and the rules and regulations of the Commission promulgated under
the Act (the "Rules and Regulations") and did not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. On the
date of this Agreement the Registration Statement and the preliminary
prospectus conform, and at the time of the filing of the Prospectus in
accordance with Rule 424(b), the Registration Statement and the Prospectus
will conform in all material respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents includes or will include
any untrue statement of a material fact or omits or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The preceding sentence does not apply to
statements in or omissions from such documents based upon written information
furnished to the Depositor by the Representative specifically for use therein,
it being understood that the only such information consists of the
Underwriters' Information (as defined in Section 7(f)).
(c) The Notes are "asset backed securities" within the meaning of,
and satisfy the requirements for use of, Form S-3 under the Act.
(d) The documents incorporated by reference in the Registration
Statement and Prospectus, 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 Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the rules and regulations of the Commission thereunder.
(e) Each of the Depositor, the Seller, the 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 presently 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 the Depositor, the Seller, the Servicer and the
Administrator, as applicable or on its ability to perform its obligations
under the Basic Documents.
(f) This Agreement and each of the Basic Documents to which each of
the Depositor, the Seller, the Servicer and the Administrator is a party has
been duly authorized and, when executed and delivered by the Depositor, the
Seller, the Servicer and the Administrator will constitute a valid and binding
agreement of each of the Depositor, the Seller, the Servicer and the
Administrator, enforceable against the Depositor, the Seller, the Servicer and
the Administrator
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in accordance with its terms, subject as to the enforcement of remedies (x) to
applicable bankruptcy, insolvency, reorganization, moratorium, and other
similar laws affecting creditors' rights generally, (y) 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 (z) with respect to
rights of indemnity under this Agreement and the Letter Agreement to
limitations of public policy under applicable securities laws.
(g) None of the Depositor, the Seller, the Servicer or the
Administrator is in breach or violation of any 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,
which breach or violation would have a material and adverse effect on its
ability to perform its obligations under this Agreement or any of the Basic
Documents, in each case, to which it is a party.
(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 Depositor, or any affiliate thereof or the Underwriters, any
brokerage or finder's fee or other fee or commission as a result of any of the
transactions contemplated by this Agreement.
(i) Neither the Depositor nor any of its affiliate 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 the Depositor, the Seller, the Servicer and the
Administrator, in each of their respective capacities under each of the Basic
Documents, to which each is 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 Depositor has filed the preliminary prospectus supplement
relating to the Notes pursuant to and in accordance with Rule 424(b).
(m) 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.
(n) The Notes, when duly and validly executed by the Indenture
Trustee, authenticated and delivered in accordance with the Indenture, and
delivered and paid for pursuant hereto will be enforceable in accordance with
their terms, subject as to enforceability to the effects of applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance,
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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).
(o) Neither the execution, delivery or performance of any of the
Basic Documents by the Depositor, the Seller, the 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 the Depositor, the Seller, the
Servicer or the Administrator, any material indenture or other material
agreement or instrument to which the Depositor, the Seller, the Servicer or
the Administrator is a party or by which either 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 the Depositor, the Seller, the Servicer or
the Administrator of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Depositor, the
Seller, the Servicer or the Administrator, or will result in the creation of
any lien upon any material property or assets of the Depositor, the Seller,
the Servicer or the Administrator (other than pursuant to the Basic
Documents).
(p) Other than as disclosed in the Prospectus, there are no legal or
governmental proceedings pending to which the Depositor, the Seller, the
Servicer or the Administrator is a party or of which any of its properties is
the subject, which if determined adversely to the Depositor, the Seller, the
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 the Depositor's, the
Seller's, the Servicer's or the Administrator's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or others.
(q) 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 Basic Documents, except
such as have been or will have been prior to the Closing Date duly made or
obtained.
(r) 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 the Depositor, the Seller, the Servicer or the Administrator, or
the Depositor's, the Seller's, Servicer's or the Administrator's ability to
perform its obligations under this Agreement or any of the Basic Documents to
which it is a party.
(s) Any taxes, fees and other governmental charges owed by the
Depositor, the Seller, the 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
Basic Documents and the Notes have been or will have been paid at or prior to
the Closing Date.
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(t) Under generally accepted accounting principles, (i) the Seller
will report its transfer of the Financed Student Loans transferred by it to
the Depositor pursuant to the Loan Sale Agreement as a sale of the Financed
Student Loans for financial accounting purposes and (ii) the Depositor will
report its transfer of the Financed Student Loans to the Trust pursuant to the
Loan Sale 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).
(u) Immediately prior to the transfer thereof by the Seller to the
Depositor pursuant to the Loan Sale Agreement, the Seller was the sole owner
of all right, title and interest in, and had good and marketable title to the
Initial Financed Student Loans to be transferred to the Depositor. Pursuant to
the Loan Sale Agreement, the Seller will transfer to the Depositor and the
Depositor will transfer to the Trust ownership of the Initial Financed Student
Loans. Immediately prior to the transfer thereof to the Trust, the Depositor
will be the sole owner of all right, title and interest in, and will have good
and marketable title to, the Initial Financed Student Loans. The assignment of
the Initial Financed Student Loans, all documents and instruments relating
thereto and all proceeds thereof to the Trust, pursuant to the Loan Sale
Agreement, vests in the Eligible Lender Trustee on behalf of the Trust all
interests which are purported to be conveyed thereby, free and clear of any
liens, security interests or encumbrances.
(v) Immediately prior to the transfer of the Financed Student Loans
by the Seller to the Depositor, the Depositor's interest in the Financed
Student Loans and the proceeds thereof shall be perfected upon the filing of
UCC-1 financing statements naming the Seller, as debtor, the Depositor, as
secured party 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 in the Financed
Student Loans other than the Seller Financing Statements. If a court concludes
that the transfer of the Financed Student Loans from the Seller to the
Depositor is a sale, the interest of the Depositor 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 Loan Sale Agreement and the
transactions contemplated thereby constitute a grant by the Seller to the
Depositor 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 continuous
statements specified in Schedule I and any related continuation statements, is
necessary to perfect and maintain the interest or the security interest of the
Depositor in the Financed Student Loans and the proceeds thereof against third
parties.
(w) Immediately prior to the transfer of the Financed Student Loans
by the Depositor to the Trust, the Trust's interest in the Financed Student
Loans and the proceeds thereof shall be perfected upon the filing of UCC-1
Financing Statements naming the Depositor, as debtor, the Trust, as secured
party and the Indenture Trustee, as assignee (the "Depositor Financing
Statements") in the offices specified in Schedule I and there shall be no
unreleased UCC financing statements filed against the Depositor in the
Financed Student Loans other than
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the Depositor Financing Statements. If a court concludes that the transfer of
the Financed Student Loans from the Depositor 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 Depositor Financing Statements in the
offices specified in Schedule I. If a court concludes that such transfer is
not a sale, the Servicing Agreement and the transactions contemplated thereby
constitute a grant by the Depositor 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 Depositor Financing
Statements in the offices specified in Schedule I. No filing or other action,
other than the filing of the Depositor 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.
(x) The Indenture and the transactions contemplated thereby
constitute a grant by the Trust 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, as debtor and the Indenture Trustee, as secured party (the "Trust
Financing Statements") in the offices specified in Schedule I and the
Indenture Trustee's taking possession of the Demand Note and there shall be no
unreleased UCC financing statements filed against the Trust 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.
(y) The Trust Agreement need not be qualified under the Trust
Indenture Act of 1939, as amended.
(z) The Indenture has been qualified under the Trust Indenture Act of
1939, as amended.
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 Depositor 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, plus accrued interest from November __, 2001.
The Depositor will deliver the Notes to the Underwriters, against
payment of the purchase price to or upon the order of the Depositor by wire
transfer in federal (same day) funds, at the office of Xxxxxx Xxxxxx Xxxxx &
Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 a.m., New York time on
November __, 2001, or at such other time not later than seven full business
days thereafter as the Underwriters and the Depositor agree in writing, such
time being
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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 The Depository Trust Company ("DTC"). The interests of
beneficial owners of the Notes will be represented by book entries on the
records of DTC and participating members thereof. Definitive Notes will be
available only under the limited circumstances specified in the Basic
Documents.
4. Offering by Underwriter. 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 Depositor. The Depositor covenants and agrees
with the Underwriters that:
(a) The Depositor will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (2) (or, if applicable and if
consented to by the Representative, subparagraph (5)) of Rule 424(b) no later
than the second business day following the date it is first used. The
Depositor will advise the Representative promptly of any such filing pursuant
to Rule 424(b).
(b) The Depositor will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus
and will not effect such amendment or supplementation without the consent of
the Representative, which consent shall not be unreasonably withheld or
delayed; and the Depositor will advise the Representative promptly of any
amendment or supplementation of the Registration Statement or the Prospectus
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 Depositor promptly will notify the Representative
of such event and promptly will prepare, at its own expense, an amendment or
supplement which will correct such statement or omission. Neither the
Representative's 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 Depositor 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 Representative reasonably
requests.
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(e) The Depositor 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 Representative designates 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
Depositor 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 Depositor shall, at all times upon request of the
Representative or its 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 Depositor 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 Underwriting Agreement and (ii) provide the Underwriters or its advisors,
or both, prior to acceptance of its subscription, the reasonable opportunity
to ask questions of the Depositor, the Seller and the Servicer with respect to
such matters.
(g) Until the retirement of the Notes, the Depositor will deliver to
the Representative 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 Depositor will
furnish to the Representative (i) 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 Depositor pursuant to the Exchange Act,
or any order of the Commission thereunder and (ii) from time to time, any
other information concerning the Depositor, the Seller or the Servicer as the
Representative may reasonably request only insofar as such information relates
to the Registration Statement or the Prospectus or the transactions
contemplated by the Basic Documents.
(i) On or before the Closing Date, the Depositor shall cause the
computer records of the Depositor, the Seller and the Servicer 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 none of the Depositor, the Seller, the Servicer 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 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 upon the furnishing of documents or the taking of
any other actions by the Depositor, the Seller or the
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Servicer on or prior to the Closing Date, the Depositor shall or shall cause
the Seller and the Servicer to furnish such documents and take any such other
actions. A copy of any such documents shall be provided to the Representative
at the time it is delivered to the rating agencies.
(k) The Depositor will pay all expenses incident to the performance
of its obligations under this Agreement, including (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 the Depositor's, the Seller's, the
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 Indenture Trustee and its counsel, (x) the fees and expenses
of the Eligible Lender Trustee, the Trust and each of their counsel and (xi)
any set-up fee charged by the Swap Counterparty.
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 the Depositor, the herein, to the accuracy
of the written statements of officers of the Depositor, the Seller and the
Servicer made pursuant to the provisions of this Section, to the performance
by the Depositor of its obligations hereunder and to the following additional
conditions precedent:
(a) The Representative shall have received a letter, dated the date
hereof, of Xxxxx & Young, LLP confirming that such accountants are independent
public accountants within the meaning of the Act and the Rules and
Regulations, and substantially in the form of the drafts to which the
Representative has previously agreed and otherwise in form and substance
satisfactory to the Representative 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 Rules and Regulations 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 proceedings for that
purpose shall have been instituted or, to the knowledge of the Depositor,
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, the
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Depositor, the Seller, the Servicer, the Administrator or the Swap
Counterparty, which, in the sole discretion of the Representative, materially
impairs the investment quality of the Notes; (ii) any downgrading in the
rating of any securities of the Seller, the Servicer, Xxxxx Fargo or the Swap
Counterparty, 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 suspension of trading of any securities of
Xxxxx Fargo on any exchange, the NASDAQ National Market or in the
over-the-counter market; (v) any banking moratorium declared by Federal or New
York authorities; (vi) any outbreak or escalation of hostilities in which the
United States is involved, any declaration of war or national emergency by
Congress, any change in the financial markets or any other substantial
national or international calamity or emergency if, in the sole judgment of
the Representative, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with the
public offering or the delivery of the Securities as contemplated by the
Registration Statement, as amended as of the date hereof or (vii) a material
disruption has occurred in securities settlement or clearance services in the
United States.
(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 Eligible Lender Trustee shall 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 Representative.
(e) The Representative shall have received an opinion of Xxxxxx
Xxxxxx Xxxxx & Xxxx, special counsel to the Depositor, the Seller, the
Servicer and the Administrator, dated the Closing Date, satisfactory in form
and substance to the Representative, to the effect that:
(i) The Servicer had at all relevant times, and now has, the power,
authority and legal right to service the Financed Student Loans
consistent with all applicable conditions, restrictions and
limitations of the federal Higher Education Act of 1965, as amended
(the "Higher Education Act").
(ii) This Agreement and the Letter Agreement are the legal, valid
and binding obligation of the Depositor and Xxxxx Fargo,
respectively.
(iii) The Basic Documents (other than the Letter Agreement and the
Trust Agreement) to which each of the Seller, the Trust, the
Servicer, the Administrator and the Depositor is a party are the
legal, valid and binding obligation of the Seller, the Servicer, the
Administrator, the Depositor and the Trust, enforceable against the
Seller, the Servicer, the Administrator, the Depositor and the Trust
in
11
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).
(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 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).
(v) To the best of such counsel's knowledge, there are no contracts
or documents of the Depositor which are required to be filed as
exhibits to the Registration Statement pursuant to the Act or the
Rules or Regulations which have not been so filed.
(vi) The Registration Statement became effective under the Act on
November __, 2001 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.
(vii) The Depositor 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, an "investment company" as defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act"), or a company "controlled by" an "investment company" within
the meaning of the Investment Company Act.
(viii) The Trust Agreement need not be qualified under the Trust
Indenture Act and the Trust is not required to register under the
Investment Company Act.
(ix) The Indenture has been duly qualified under the Trust Indenture
Act.
(x) The statements in the Prospectus Supplement under the headings
"Summary of Terms -- Tax Status," "Certain Federal Income Tax and
State Tax Consequences," "Summary of Terms -- ERISA Considerations,"
and "ERISA Considerations," and in the Base Prospectus under the
headings "Federal Income Tax Consequences" and "ERISA
Considerations," to the extent that they constitute statements of
matters of law or legal conclusions with respect thereto, have been
reviewed by such counsel and accurately describe the material
consequences to holders of the Notes under the Code and ERISA.
12
(xi) The Notes will be properly characterized as debt under federal
and [California State law] and the Trust will not be characterized
as an association (or publicly traded partnership) taxable as a
corporation under federal [or California state income and franchise
tax law].
(xii) 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 and the
applicable Rules and Regulations (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.
(xiii) No facts have come to their 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, and 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 the financial, statistical
or computational material included in or incorporated by reference
into the Registration Statement, the Prospectus or any amendment or
supplement thereto.
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 States of New York, California and Delaware.
(f) The Representative shall have received the opinion or opinions of
in-house counsel to the Depositor, the Seller, the Servicer and the
Administrator and/or such other counsel acceptable to the Representative and
counsel for the Underwriters, dated the Closing Date, satisfactory in form and
substance to the Representative and counsel for the Underwriters to the effect
that:
(i) The Depositor 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
13
upon transactions contemplated by the Basic Documents and its
business or the ownership of its property.
(ii) This Agreement has been duly authorized, executed and delivered
by the Depositor. The Basic Documents to which it is a party have
been duly authorized, executed and delivered by the Depositor.
(iii) The Depositor has full power and authority to sell and assign
the property to be sold and assigned to the Trust by it pursuant to
the Loan Sale Agreement and has duly authorized such sale and
assignment to the Trust by all necessary action.
(iv) The Depositor has duly authorized, executed and delivered the
written order to the Eligible Lender Trustee to execute and deliver
the Issuer Order to the Indenture Trustee.
(v) Neither the execution, delivery and performance by the Depositor
of the Basic Documents to which it is a party, nor the consummation
by the Depositor 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 Depositor, pursuant to the terms of
the formation documents of the Depositor or any statute, rule,
regulation or order of any governmental agency or body, or any court
having jurisdiction over the Depositor or its properties, or any
agreement or instrument known to me after due investigation to which
the Depositor is a party or by which the Depositor or any of its
properties is bound.
(vi) 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 this Agreement and each of the Basic Documents to which it is a
party by the Depositor.
(vii) To the best of the knowledge of such counsel, there are no
legal or governmental proceedings pending to which the Depositor is
a party or of which any property of the Depositor is the subject,
and no such proceedings are 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 this Agreement or
any of the Basic Documents or (ii) that could materially adversely
affect the ability of the Depositor to perform its obligations under
any of the Basic Documents to which either is a party.
(viii) Each of the Servicer, the Seller, the Administrator and Xxxxx
Fargo has been duly organized and is validly existing as a national
association 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
14
transact business and is in good standing in each jurisdiction in
which its failure to qualify would have a material adverse effect
upon the business or the ownership of its property or the
transactions contemplated by the Basic Documents.
(ix) The Basic Documents to which it is a party have been duly
authorized, executed and delivered by the Servicer, the Seller, the
Administrator and Xxxxx Fargo.
(x) Each of the Servicer, the Seller, the Administrator and Xxxxx
Fargo has full corporate power and authority to enter into the Basic
Documents to which it is a party and has duly authorized entering
into such documents by all necessary corporate action.
(xi) Neither the execution, delivery and performance by any of the
Servicer, the Seller, the Administrator and Xxxxx Fargo of the Basic
Documents to which it is a party, nor the consummation by any of the
Servicer, the Seller, the Administrator or Xxxxx Fargo 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 any of the
Servicer, the Seller, the Administrator or Xxxxx Fargo, or by which
any of their properties is bound pursuant to the terms of the
certificate of incorporation or the by-laws of any of the Servicer,
the Seller, the Administrator or Xxxxx Fargo or any statute, rule,
regulation or order of any governmental agency or body, or any court
having jurisdiction over any of the Servicer, the Seller, the
Administrator or Xxxxx Fargo or its properties, or any agreement or
instrument known to me after due investigation to which the
Servicer, the Seller, the Administrator or Xxxxx Fargo is a party or
by which any of their properties is bound.
(xii) To the best of the knowledge of such counsel, there are no
legal or governmental proceedings pending to which any of the
Servicer, the Seller, the Administrator or Xxxxx Fargo is a party or
of which any property of the Servicer, the Seller, the Administrator
or Xxxxx Fargo is the subject, and no such proceedings are 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 this Agreement or any of the Basic Documents or
(ii) that could materially adversely affect the ability of the
Servicer, the Seller, the Administrator or Xxxxx Fargo to perform
its obligations under any of the Basic Documents to which either is
a party.
(xiii) 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 Seller, the Servicer,
the Administrator or Xxxxx Fargo, is necessary to be obtained or
accomplished by Seller, the Servicer, or the Administrator or Xxxxx
Fargo in connection with the execution, delivery and
15
performance of this Agreement and each of the Basic Documents to
which it is a party by the Seller, the Servicer, the Administrator
or Xxxxx Fargo.
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, the
General Corporation Law of the State of Delaware and the laws of the State of
California, Minnesota and South Dakota.
(g) The Representative shall have received the opinions of [Xxxxxx
Xxxxxx Xxxxx & Xxxx and/or Faegre & Xxxxxx] dated the Closing Date,
satisfactory in form and substance to the Representative and counsel for the
Underwriters to the effect that:
(i) The transfer of the Financed Student Loans and the proceeds
thereof by the Seller to the Depositor pursuant to the Loan Sale
Agreement constitutes either (i) a valid sale, transfer and
assignment of the Financed Student Loans and the proceeds thereof
from the Seller to the Depositor or (ii) the grant of a security
interest therein favor of the Depositor, which security interest has
attached. In either case the provisions of the Loan Sale Agreement
are sufficient to create a valid and enforceable security interest
in favor of the Depositor in the Seller's right, title and interest
in the Financed Student Loans and the proceeds thereof. Such
security interest in the Financed Student Loans and all identifiable
cash proceeds thereof will be perfected upon the filing of the
Seller's Financing Statements and the security interest of the
Depositor in the Financed Student Loans described in the Seller's
Financing Statements will have priority over all other security
interests in such Financed Student Loans.
(ii) Based solely upon the UCC Reports (x) there are no financing
statements on file which describe the Financed Student Loans as
collateral and naming the Seller as debtor in the office of the
[South Dakota or Washington, D.C.] Secretary of State and (y) there
are no notices of the filing of any tax liens or liens of the
Pension Benefit Guaranty Corporation ("PBGC") against the -----
Seller filed pursuant to Section 6323 of the Internal Revenue Code
or Section 408 of ERISA in the office of the [South Dakota or
Washington, D.C.] Secretary of State. Such office is the only office
having files which must be searched in order to determine whether
any security interests in the Financed Student Loans have been
perfected by filing and to determine the existence of any federal
tax liens or PBGC liens on such property.
(iii) The transfer of the Financed Student Loans (and the other
Trust Property including the Demand Note) and the proceeds thereof
by the Depositor to the Trust pursuant to the Loan Sale Agreement
constitutes either (i) a valid sale, transfer and assignment of the
Financed Student Loans (and the other Trust Property including the
Demand Note) and the proceeds thereof from Depositor to
16
the Trust or (ii) the grant of a security interest therein favor of
the Trust, which security interest has attached. In either case the
provisions of the Loan Sale Agreement are sufficient to create a
valid and enforceable security interest in favor of the Trust in
Depositor's right, title and interest in the Financed Student Loans
(and the other Trust Property including the Demand Note) and the
proceeds thereof. Such security interest in the Financed Student
Loans (and in the other Trust Property in which a security interest
may be perfected by filing) and all identifiable cash proceeds
thereof will be perfected upon the filing of the Depositor Financing
Statements and the security interest of the Trust in the Financed
Student Loans (and in the other Trust Property in which a security
interest may be perfected by filing) described in the Depositor
Financing Statements will have priority over all other security
interests in such Financed Student Loans (and in the other Trust
Property in which a security interest may be perfected by filing).
Such security interest in the Demand Note and all identifiable cash
proceeds thereof will be perfected upon the Trust's taking
possession of the Demand Note and the security interest of the Trust
in the Demand Note will have priority over all other security
interests in the Demand Note.
(iv) Based solely upon the UCC Reports (x) there are no financing
statements on file which describe the Financed Student Loans as
collateral and naming the Depositor as debtor in the office of the
[South Dakota or Delaware] Secretary of State and (y) there are no
notices of the filing of any tax liens or liens of the Pension
Benefit Guaranty Corporation ("PBGC") against the Depositor
filed in such offices pursuant to Section 6323 of the Internal
Revenue Code or Section 408 of ERISA. Such offices are the only
office having files which must be searched in order to determine
whether any security interests in the Financed Student Loans (and
the other Collateral that may be perfected by filing) have been
perfected by filing and to determine the existence of any federal
tax liens or PBGC liens on such property.
(v) The pledge of the Financed Student Loans (and the other
Collateral including the Demand Note) and the proceeds thereof by
the Trust to the Indenture Trustee pursuant to the Indenture
constitutes the grant of a security interest therein favor of the
Indenture Trustee, which security interest has attached. The
provisions of the Indenture are sufficient to create a valid and
enforceable security interest in favor of the Indenture Trustee in
Trust's right, title and interest in the Financed Student Loans (and
the other Collateral in which a security interest may be perfected
by filing) and the proceeds thereof. Such security interest in the
Financed Student Loans (and the other Collateral in which a security
interest may be perfected by filing) and all identifiable cash
proceeds thereof will be perfected upon the filing of the Trust
Financing Statements and the security interest of the Indenture
Trustee in the Financed
17
Student Loans (and the other Collateral that may be perfected by
filing) described in the Trust Financing Statements will have
priority over all other security interests in such Financed Student
Loans (and the other Collateral in which a security interest may be
perfected by filing) Such security interest in the Demand Note and
all identifiable cash proceeds thereof will be perfected upon the
Trust's taking possession of the Demand Note and the security
interest of the Trust in the Demand Note will have priority over all
other security interests in the Demand Note.
(vi) Based solely upon the UCC Reports (x) there are no financing
statements on file which describe the Financed Student Loans (and
the other Collateral including the Demand Note) as collateral and
naming the Trust as debtor in the office of the Delaware Secretary
of State and (y) there are no notices of the filing of any tax liens
or liens of the Pension Benefit Guaranty Corporation ("PBGC")
against Trust filed in such offices pursuant to Section 6323 of the
Internal Revenue Code or Section 408 of ERISA. Such offices
are the only office having files which must be searched in order to
determine whether any security interests in the Financed Student
Loans (and the other Collateral that may be perfected by filing)
have been perfected by filing and to determine the existence of any
federal tax liens or PBGC liens on such property.
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 States of New York, Delaware and South
Dakota.
(h) The Representative shall have received an opinion addressed to it
of Xxxxxx Xxxxxx Xxxxx & Xxxx, in its capacity as counsel to the Depositor,
dated the Closing Date, with respect to the creation of (x) a "true sale" with
respect to the transfers of the Financed Student Loans from the Seller to the
Depositor, (y) a "true sale" or a valid and binding security interest with
respect to the transfer of the Financed Student Loans from the Depositor to
the Trust and (z) non consolidation opinion between the Depositor and the
Seller. Such opinions shall be limited to the laws of the States of New York
and South Dakota and United States federal law.
(i) The Representative shall have received an opinion of
____________, counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for the
Underwriters, to the effect that:
(i) The Indenture Trustee has been duly organized as a ________ and
is validly existing and in good standing under the laws of the State
of New York.
(ii) The Indenture Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Indenture and
has taken all necessary action to authorize the execution, delivery
and performance by it of the Indenture.
(iii) Each of the Indenture and the Administration Agreement has
been duly executed and delivered by the Indenture Trustee and
constitutes a legal, valid and binding obligation of the Indenture
Trustee, enforceable against the Indenture
18
Trustee in accordance with its respective terms, except that such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting the
enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(iv) The Notes have been duly authenticated by the Indenture Trustee
in accordance with the terms of the Indenture.
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.
(j) The Representative shall have received an opinion of ___________
counsel to the Eligible Lender Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for the
Underwriters, to the effect that:
(i) The Eligible Lender Trustee is a national banking association
duly incorporated or organized and validly existing under the laws
of the United States.
(ii) The Eligible Lender Trustee has the full corporate trust power
to accept the office of eligible lender trustee under the Trust
Agreement and to enter into and perform its obligations under the
Basic Documents to which it is a party.
(iii) The execution and delivery of the Basic Documents to which it
is a party, and the performance by the Eligible Lender Trustee of
its obligations under the Basic Documents to which it is a party
have been duly authorized by all necessary action of the Eligible
Lender Trustee and each has been duly executed and delivered by the
Eligible Lender Trustee.
(iv) The Basic Documents to which it is a party constitutes the
valid and binding obligations of the Eligible Lender Trustee
enforceable against the Eligible Lender Trustee in accordance with
their respective terms.
(v) The execution and delivery by the Eligible Lender Trustee of the
Basic Documents to which it is a party do not require any consent,
approval or authorization of, or any registration or filing with,
any applicable governmental authority.
(vi) Each of the Notes has been duly executed and delivered by the
Eligible Lender Trustee, on behalf of the Trust.
(vii) None of (x) the consummation by the Eligible Lender Trustee of
the transactions contemplated in the Basic Documents, (y) the
consummation by the
19
Trust of the transactions contemplated in the Basic Documents, or
(z) the fulfillment of the terms thereof by 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 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 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 Eligible Lender Trustee or any of its
subsidiaries, of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Eligible Lender Trustee or any of its subsidiaries
(viii) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or
the State of Delaware having jurisdiction over the banking or trust
powers of the Eligible Lender Trustee is required in connection with
the execution and delivery by the Eligible Lender Trustee of the
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 and
the laws of the States of New York and Delaware.
(k) The Representative shall have received an opinion of counsel to
Bank One acceptable to the Representative, dated the Closing Date and
satisfactory in form and substance to the Representative and its counsel, to
the effect that:
(i) Bank One is a national banking association duly incorporated or
organized and validly existing under the laws of the United States.
(ii) Each of the Basic Documents to which it is a party has been
duly authorized by all necessary action of Bank One and has been
duly executed and delivered by Bank One.
(iii) Each of the Basic Documents to which it is a party constitutes
a valid and binding obligation of Bank One enforceable against Bank
One in accordance with its terms, except (x) that enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights and (y) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
20
(iv) The execution and delivery by Bank One of each of the Basic
Documents to which it is a party does not require any consent,
approval or authorization of, or any registration or filing with,
any governmental authority having jurisdiction over Bank One.
(v) Bank One is an "eligible lender" as such term is defined in
Section 435(d) of the Higher Education Act for purposes of holding
legal title to the Financed Student Loans.
(l) The Representative 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.
(m) The Representative shall have received an opinion of counsel to
the Swap Counterparty, dated the Closing Date, in form and substance
satisfactory to the Representative and its counsel.
(n) The Representative 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 Representative and its
counsel, to the effect that:
(i) The Trust Agreement constitutes the valid and binding obligation
of the Eligible Lender Trustee, the Delaware Trustee, and the
Depositor, enforceable against the Eligible Lender Trustee, the
Delaware Trustee and the Depositor, in accordance with its terms
subject to (i) applicable bankruptcy, insolvency, moratorium,
receivership, reorganization, fraudulent conveyance and similar laws
relating to and affecting the rights and remedies of creditors
generally, and (ii) principles of equity (regardless of whether
considered and applied in a proceeding in equity or at law).
(ii) The Trust has been duly formed and is validly existing as a
business trust under the Business Trust Act of the State of Delaware
(the "Business Trust Act"). The Trust Agreement authorizes the Trust
to execute and deliver the Other Basic Documents to which it is a
party to issue the Notes and to grant the Collateral to the
Indenture Trustee as security for the Notes.
(iii) Except for the timely filing in the future of continuation
statements with respect to the financing statements, no other filing
is required in the State of Delaware in order to make effective the
lien of the Indenture. Insofar as Article 9 of the Delaware Uniform
Commercial Code, 6 Del. C. ss. 9-101 et seq. (the "UCC"), applies
(without regard to conflict of laws principles) and assuming that
the security interest in that portion of the Collateral that
consists of general intangibles and accounts, as defined under the
UCC, has been duly created and has attached, the Indenture Trustee
has a perfected security interest in such general intangibles and
accounts and the proceeds thereof and, assuming that the
21
UCC search accurately lists all of the financing statements filed
naming the Trust as debtor and describing any portion of the
Collateral consisting of such general intangibles and accounts and
the proceeds thereof, such security interest of the Indenture
Trustee will be prior to the security interest of all other
creditors of the Trust whose security interests are perfected solely
by filing UCC financing statements in the State of Delaware,
excluding purchase money security interests under ss.9-312 of the UCC
and temporarily perfected security interests in proceeds
under ss.9-306 of the UCC.
(iv) Under ss. 3805(b) of the Business Trust Act, no creditor of the
Company 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.
(v) Under ss. 3805(c) of the Business Trust Act, and assuming that
the Loan Sale Agreement conveys good title to the Initial Financed
Student Loans to the Trust as a true sale and not as a security
arrangement, the Trust rather than the Depositor is the owner of the
Initial Financed Student Loans.
(vi) The Delaware Trustee is not required to hold legal title to the
Trust Estate in order for the Trust to qualify as a business trust
under the Business Trust Act.
(vii) The execution and delivery by the Eligible Lender Trustee or
the Delaware Trustee of the Trust Agreement and, on behalf of the
Trust, of the Basic Documents to which it is a party, do not require
any consent, approval or authorization of, or any registration of
filing with, any governmental authority of the State of Delaware,
except for the filing of the Certificate of Trust with the Secretary
of State.
(viii) Neither the consummation by the Eligible Lender Trustee or
the Delaware Trustee of the transactions contemplated in the Trust
Agreement or, on behalf of the Trust, the transactions contemplated
in the Basic Documents, nor the fulfillment of the terms thereof by
the Eligible Lender Trustee or the Delaware Trustee will conflict
with or result in a breach or violation of any law of the State of
Delaware.
(o) The Representative shall have received an opinion of counsel
acceptable to the Representative of Colorado Student Loan Program ("CSLP"),
dated the Closing Date, and in form and substance satisfactory to the
Representative and its counsel, to the effect that:
(i) CSLP has been duly incorporated and is validly existing as a
non-profit corporation in good standing under the laws of the State
of its incorporation with full power and authority (corporate and
other) to own its properties and conduct its business, as currently
conducted by it, and to enter into and perform its obligations under
its Guarantee Agreement (and the agreements with the Department
under Section 428 of the Higher Education Act to the extent relevant
22
to CSLP's obligations under such Guarantee Agreement), and had at
all relevant times, and now has, the power, authority and legal
right to guarantee the Financed Student Loans covered by such
Guarantee Agreement and to receive, subject to compliance with all
applicable conditions, restrictions and limitations of the Higher
Education Act and any rules and regulations thereunder and
interpretations thereof, reinsurance payments from the Department
with respect to claims paid by it on such Financed Student Loans.
(ii) CSLP is duly qualified to do business and is in good standing,
and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to qualify or to obtain such license
or approval would render CSLP's obligation under its Guarantee
Agreement to guarantee the Financed Student Loans covered thereby
unenforceable by or on behalf of the Trust.
(iii) The Guarantee Agreement (and its agreements with the
Department under Section 428 of the Higher Education Act to the
extent relevant to CSLP's obligations under such Guarantee
Agreement) have been duly authorized, executed and delivered by CSLP
and are the legal, valid and binding obligation of CSLP enforceable
against CSLP in accordance with their respective terms, except that
(x) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and (y) the remedy
of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(iv) None of the execution and delivery by CSLP of its Guarantee
Agreement, the consummation by CSLP of the transactions contemplated
therein, or the fulfillment of the terms thereof by CSLP will
conflict with, result in a breach, violation or acceleration of, or
constitute a default under, any terms or provision of the
organizational documents or bylaws of CSLP or of any indenture or
other agreement or instrument to which CSLP is a party or by which
CSLP is bound, or result in a violation of or contravene the terms
of any statute, order or regulation applicable to CSLP of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over CSLP.
(v) There are no actions, proceedings or investigations pending or,
to the best of such counsel's knowledge after due inquiry,
threatened against CSLP before or by any governmental authority that
might materially and adversely affect the performance by CSLP of its
obligations under, or the validity or enforceability of, its
Guarantee Agreement.
(vi) CSLP is a "guarantor" covered by the provisions of Section
432(o) of the Higher Education Act.
23
(p) The Representative shall have received an opinion of Xxxx,
Xxxxxxx & Xxxxxxxxx, special student loan counsel to the several Underwriters
or, in the case of (iii) below, special student loan counsel to the Eligible
Lender Trustee and Bank One, dated the Closing Date, and satisfactory in form
and substance to the Representative and its counsel, to the effect that:
(i) The Basic Documents, and the transactions contemplated by the
Basic Documents, conform in all material respects to the applicable
requirements of the Higher Education Act, and that, upon the due
authorization, execution and delivery of the Basic Documents and the
consummation of such transactions, the Financed Student Loans, legal
title to which will be held by the Eligible Lender Trustee on behalf
of the Trust, will qualify, subject to compliance with all
applicable origination and servicing requirements with respect
thereto, to receive all applicable federal assistance payments,
including federal reinsurance and federal interest subsidies and
special allowance payments, with respect thereto.
(ii) To the extent that the statements in the Prospectus purport to
summarize or describe provisions of the Higher Education Act, or
constitute statements of matters of law or legal conclusions with
respect to the Higher Education Act, such statements have been
prepared or reviewed by such counsel and accurately describe the
material consequences to holders of the Notes under the Higher
Education Act.
(iii) Such counsel has examined the Registration Statement and the
Prospectus, and nothing has come to such counsel's attention that
would lead such counsel to believe that, solely with respect to the
Higher Education Act and the student loan business, the Registration
Statement or the Prospectus or any amendment or supplement thereto
as of the respective dates thereof or on the Closing Date contains
an untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein not
misleading.
(iv) Each of the Eligible Lender Trustee and the Indenture Trustee
is an "eligible lender" as such term is defined in Section 435(d) of
the Higher Education Act for purposes of holding legal title to the
Financed Student Loans.
(v) Assuming that the Indenture Trustee continues to satisfy the
"primary consumer credit function" test of the Higher Education Act
and 34 C.F.R. Section 682.200 and the other applicable requirements
contained in the Higher Education Act and the regulations
promulgated thereunder, it will continue to be an "eligible lender"
under the Higher Education Act unless and until the Department or a
guaranty agency revokes such status pursuant to the procedures
contained in the Higher Education Act and the regulations
promulgated thereunder, assuming no material change in the Higher
Education Act or regulations of the Department, or the Department's
interpretations thereof, during such time.
24
(vi) CSLP is a private non-profit Family Federal Education Loan
Program ("FFELP") guaranty agency (a "Guaranty Agency") covered by
the provisions of Section 432(o) of the Higher Education Act. In the
event that the United States Secretary of Education (the
"Secretary") determines that a Guaranty Agency is unable to meet its
insurance obligations under Title IV-B of the Higher Education Act,
the Secretary is required by Section 432(o) of the Higher Education
Act to pay otherwise valid insurance claims submitted directly to
the Secretary by FFELP lenders on loans insured by such Guaranty
Agency in the full amount of the Guaranty Agency's insurance
obligation thereon and in accordance with insurance requirements no
more stringent than those of the Guaranty Agency.
(q) The Representative shall have received a certificate dated the
Closing Date of the Depositor, 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
Depositor, in which such officer shall state that, (i) the representations and
warranties of the Depositor contained in this Agreement and the Basic
Documents to which it is a party are true and correct, (ii) that the Depositor
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) since December 31, 2000, 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 Depositor has occurred.
(r) The Representative shall have received a certificate dated the
Closing Date of each of the Servicer and the Seller, 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 Servicer and the Seller, as applicable, in which such officer shall
state that (i) the representations and warranties of the Servicer and the
Seller, as applicable, contained in the Basic Documents to which it is a party
are true and correct, (ii) that the Servicer and the Seller, 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) since December 31, 2000, 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 Servicer and the Seller, as
applicable, has occurred.
(s) The Representative shall have received evidence satisfactory to
it and counsel for the Underwriters that, on or before the Closing Date, the
Depositor Financing Statements, the Seller Financing Statements and the Trust
Financing Statements shall have been submitted to the Eligible Lender Trustee
or Indenture Trustee, as the case may be, for filing in the appropriate filing
offices.
25
(t) The Class A-1 Notes and the Class A-2 Notes shall each be rated
"AAA" or its equivalent, in each case by Xxxxx'x, Fitch and S&P and the Class
B Notes shall be rated "A2" by Xxxxx'x and "A" by each of Fitch and S&P, and
neither corporation shall have placed the Notes under surveillance or review
with possible negative implications.
The Depositor will provide or cause to be provided to the
Representative such conformed copies of such of the foregoing opinions,
certificates, letters and documents as the Representative shall reasonably
request.
7. Indemnification and Contribution.
(a) The Depositor agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any and all losses, claims, damages or liabilities, joint or several,
to which such Underwriter or such controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or any amendment
thereto, the Base Prospectus, any preliminary prospectus or the
Prospectus Supplement or any amendment or supplement thereto, or
(ii) the omission or alleged omission to state in the Registration
Statement or any amendment thereto, the Base Prospectus, any
preliminary prospectus or the Prospectus Supplement or any amendment
or supplement thereto a material fact required to be stated therein
or necessary to make the statements therein not misleading,
and will reimburse, as incurred, each Underwriter and each such
controlling person for any legal or other costs or expenses reasonably
incurred by such Underwriter or such controlling person in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
however, that the Depositor will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
(i) any untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement or any amendment thereto, the Base
Prospectus, any preliminary prospectus, the Prospectus Supplement or any
amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Depositor by such Underwriter through the
Representative specifically for use therein and (ii) the failure of such
Underwriter to send or give to any purchaser, at or prior to the written
confirmation of the sale of Notes to such person, a copy of any amended or
supplemented Base Prospectus or Prospectus Supplement under circumstances
where the Depositor has furnished copies of such an amended or supplemented
Base Prospectus or Prospectus Supplement to the Underwriters in a reasonable
amount of time in advance of the purchase of Notes that were the subject of
loss, claim, damage or liability and the untrue statement or omission of
material fact contained in the prior Base Prospectus or Prospectus Supplement
was
26
corrected in the Base Prospectus or Prospectus Supplement, as so amended
or supplemented. The written information furnished by the Representative to
the Depositor consists solely of the information set forth in the [first
paragraph, second paragraph and the second sentence of the third paragraph]
under the heading "Underwriting" in the Prospectus Supplement (the
"Underwriters' Information"). The indemnity provided for in this Section 7
shall be in addition to any liability which the Depositor may otherwise have.
The Depositor will not, without the prior written consent of the
Representative, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action, suit or proceeding in respect of
which indemnification may be sought hereunder (whether or not the
Representative or any person who controls the Representative is a party to
such claim, action, suit or proceeding), unless such settlement, compromise or
consent (i) includes an unconditional release of all of the Underwriters and
such controlling persons from all liability arising out of such claim, action,
suit or proceeding and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Depositor, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls the
Depositor within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act against any losses, claims, damages or liabilities to
which the Depositor or any such director, officer or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment
thereto, the Base Prospectus, any preliminary prospectus or the Prospectus
Supplement or any amendment or supplement thereto or (ii) the omission or the
alleged omission to state in the Registration Statement or any amendment
thereto, the Base Prospectus any preliminary prospectus or the Prospectus
Supplement or any amendment or supplement thereto a material fact required to
be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with the Underwriters' Information, and,
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Depositor or any such director, officer or controlling person in connection
with investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or any action in
respect thereof. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(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 paragraph (a) or (b) of this Section 7, such person (for
purposes of this paragraph (c), the "indemnified party") shall, promptly after
receipt by such party of notice of the commencement of such action, notify the
person against whom such indemnity may be sought (for purposes of this
paragraph (c), the "indemnifying party"), but the failure to notify an
indemnifying party shall not relieve the indemnifying party from any liability
which it may have under this Section 7
27
except to the extent that it has been materially prejudiced by such failure
and, provided further, that the failure to notify any indemnifying party shall
not relieve the indemnifying party from any liability which it may have to any
indemnified party other than under this Section 7. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party; provided, however, that
if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably
concluded that there may be one or more legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense of any such action and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated in writing by the
Representative in the case of paragraph (a) of this Section 7, representing
the indemnified parties under such paragraph (a) who are parties to such
action or actions), or (ii) the indemnifying party does not promptly retain
counsel satisfactory to the indemnified party, or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. All fees and expenses reimbursed pursuant
to this paragraph (c) shall be reimbursed as they are incurred. After such
notice from the indemnifying party to such indemnified party, the indemnifying
party will not be liable for the costs and expenses of any settlement of such
action effected by such indemnified party without the consent of the
indemnifying party.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 7 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in
28
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Depositor on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total proceeds from such offering (before deducting expenses) received by the
Depositor bear to the total underwriting discounts and commissions received by
the Underwriters (the "Spread"). The relative fault of the parties 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 Depositor or the
Underwriters, the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any
other equitable considerations appropriate in the circumstances. The Depositor
and the Underwriters agree that it would not be equitable if the amount of
such contribution were determined by pro rata or per capita allocation (even
if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take into account the equitable
considerations referred to above in this paragraph (d). Notwithstanding any
other provision of this paragraph (d), no Underwriter shall be obligated to
make contributions hereunder that in the aggregate exceed the Spread with
respect to the Securities purchased by such Underwriter under this Agreement,
less the aggregate amount of any damages that such Underwriter has otherwise
been required to pay in respect of the same or any substantially similar
claim, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations, and not
joint, and contributions among Underwriters shall be governed by the
provisions of the Representative's Master Agreement Among Underwriters. For
purposes of this paragraph (d), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Depositor, each officer of the Depositor
who signed the Registration Statement and each person, if any, who controls
the Depositor within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, shall have the same rights to contribution as
the Depositor.
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 Representative for the
purchase of such Securities by other persons (who may include one or more of
the non-defaulting Underwriters, including the Representative), 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
Representative 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
29
default occurs is more than ten percent of the aggregate principal amount of
Securities to be purchased, and arrangements satisfactory to the
Representative and the Depositor 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
Depositor, except as provided in Section 9. In any such case either the
Representative or the Depositor 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. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Depositor or its officers and of the Underwriters set forth in or made
pursuant to this Agreement or contained in certificates of officers of the
Depositor 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 Depositor or any of
their respective representatives, officers or directors or 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
Depositor shall remain responsible for the expenses to be paid or reimbursed
by the Depositor pursuant to Section 5(k) and the respective obligations of
the Depositor, the Depositor 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), (v) and (vi) of Section 6(c) or a
default by the Underwriters pursuant to Section 8), the Depositor will
reimburse the Underwriters for all out-of-pocket expenses reasonably incurred
by it in connection with the offering of the Notes.
10. 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
Representative at 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX, 00000,
attention: Xxx Xxxxxxxxx (fax # (000) 000-0000) and if sent to the Depositor
when delivered to Sixth and Marquette Avenue, Minneapolis, Minnesota 55479,
Attention: Xxxx X. Xxxxxxxxx, Senior Counsel (Fax # (000) 000-0000).
11. 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 right or obligations hereunder.
12. 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.
30
13. 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.
14. Representation of Underwriters. The Representative will act for
the several Underwriters in connection with the transactions described in this
Agreement, and any action taken by Representative under this Agreement will be
binding upon all the Underwriters.
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 Depositor and the
Underwriters in accordance with its terms.
Very truly yours,
XXXXX FARGO STUDENT LOANS
RECEIVABLES, LLC
By:__________________________
Name:
Title:
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of
the date first written above.
XXXXXXX XXXXX XXXXXX INC.
By:____________________________
Name:
Title:
Acting on behalf of itself and as the
Representative of the Several
Underwriters
32
SCHEDULE I
OFFICES
For the Seller: Washington, D.C. Secretary of State
For the Depositor: Delaware Secretary of State
For the Trust: Delaware Secretary of State
I-1
SCHEDULE II
Initial Principal Initial Principal Initial Principal
Balance of Balance of Balance of
Underwriter Class A-1 Notes Class A-2 Notes Class B Notes
----------- --------------- --------------- -------------
Xxxxxxx Xxxxx Xxxxxx Inc. $__________ $__________ $__________
---------------------- $---------- $---------- $----------
---------------------- $---------- $---------- $----------
II-1
SCHEDULE III
Original
Principal Investor
Security Balance $ Price % Price % Rate %
-------- --------- ------- ------- ------
Class A-1 Notes $__________ __________% __________% _____%
Class A-2 Notes $__________ __________% __________% _____%
Class B Notes $__________ __________% __________% _____%
Total Price to Public: $____________
Total Price to Depositor: $____________
Underwriting Discounts
and Commissions: $____________
III-1
EXHIBIT A
A-1
November __, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
as Representative of the several Underwriters
named in Schedule II hereto
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Underwriting Agreement for Xxxxx Fargo Student Trust 2001-1,
dated November __, 2001 the "Underwriting Agreement") between
Xxxxx Fargo Student Loans Receivables, LLC (the "Depositor"),
and Xxxxxxx Xxxxx Xxxxxx Inc., as representative (the
"Representative") of the several underwriters (the
"Underwriters").
Dear Ladies and Gentlemen:
Pursuant to the Underwriting Agreement, the Depositor has undertaken
certain financial obligations with respect to the indemnification of the
Underwriters with respect to the Registration Statement, and the Prospectus
described in the Underwriting Agreement. Any financial obligations of the
Depositor under the Underwriting Agreement, whether or not specifically
enumerated in this paragraph, are hereinafter referred to as the "Joint and
Several Obligations;" provided, however, that "Joint and Several Obligations"
shall mean only the financial obligations of the Depositor under the
Underwriting Agreement (including the payment of money damages for a breach of
any of the Depositor's obligations under the Underwriting Agreement, whether
financial or otherwise) but shall not include any obligations not relating to
the payment of money.
As a condition of its execution of the Underwriting Agreement, the
Underwriters have required the undersigned, Xxxxx Fargo Bank South Dakota,
National Association ("Xxxxx Fargo"), the parent of the Depositor, to
acknowledge its joint and several liability with the Depositor for the payment
of the Joint and Several Obligations under the Underwriting Agreement.
Now, therefore, the Underwriters and Xxxxx Fargo do hereby agree
that:
1. Xxxxx Fargo hereby agrees to be absolutely and unconditionally
jointly and severally liable with the Depositor to the Underwriters for the
payment of the Joint and Several Obligations under the Underwriting Agreement.
2. Xxxxx Fargo may honor its obligations hereunder either by direct
payment of any Joint and Several Obligations or by causing any Joint and
Several Obligations to be paid to the Underwriters by the Depositor or another
affiliate of Xxxxx Fargo.
Capitalized terms used herein and not defined herein shall have their
respective meanings as set forth in the Underwriting Agreement.
Very truly yours,
XXXXX FARGO BANK SOUTH DAKOTA,
NATIONAL ASSOCIATION],
By:_____________________
Name:
Title:
XXXXXXX XXXXX XXXXXX INC.
By:________________________
Name:
Title:
2
