$1,036,000,000
COLLEGIATE FUNDING SERVICES EDUCATION LOAN TRUST 2003-B
UNDERWRITING AGREEMENT
November 19, 0000
Xxxx xx Xxxxxxx Securities LLC
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. Collegiate Funding of
Delaware, L.L.C. (the "Sponsor") has previously filed a registration statement
with the Securities and Exchange Commission relating to the issuance and sale
from time to time of up to $2 billion of student loan asset-backed notes.
Collegiate Funding Services, L.L.C., a Virginia limited liability company
("Collegiate Funding") owns the Sponsor directly. The Sponsor proposes to cause
Collegiate Funding Services Education Loan Trust 2003-B (the "Trust") to issue
and sell to Banc of America Securities LLC, X.X. Xxxxxx Securities Inc. and
Citigroup Global Markets Inc. (each, an "Underwriter" and collectively, the
"Underwriters") $249,000,000 principal amount of its Class A-1 Student Loan
Asset-Backed Notes, Series 2003-B (the "Class A-1 Notes"), $250,000,000
principal amount of its Class A-2 Student Loan Asset-Backed Notes, Series 2003-B
(the "Class A-2 Notes"), $97,000,000 principal amount of its Class A-3 Student
Loan Asset-Backed Notes, Series 2003-B (the "Class A-3 Notes"), $97,000,000
principal amount of its Class A-4 Student Loan Asset-Backed Notes, Series 2003-B
(the "Class A-4 Notes"), $97,000,000 principal amount of its Class A-5 Student
Loan Asset-Backed Notes, Series 2003-B (the "Class A-5 Notes"), $97,000,000
principal amount of its Class A-6 Student Loan Asset-Backed Notes, Series 2003-B
(the "Class A-6 Notes"), $97,000,000 principal amount of its Class A-7 Student
Loan Asset-Backed Notes, Series 2003-B (the "Class A-7 Notes"), $26,000,000
principal amount of its Class B-1 Student Loan Asset-Backed Notes, Series
2003-B-1 (the "Class B-1 Notes") and $26,000,000 principal amount of its Class
B-2 Student Loan Asset-Backed Notes, Series 2003-B-2 (the "Class B-2 Notes" and,
together with the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4
Notes, Class A-5 Notes, Class A-6 Notes, Class A-7 Notes and the Class B-2
Notes, the "Notes"). The Trust will be formed by the Sponsor pursuant to a trust
agreement, to be dated as of November 1, 2003, as amended by an Amended and
Restated Trust Agreement dated as of November 1, 2003 (as further amended and
supplemented from time to time, the "Trust Agreement"), between the Sponsor and
Wilmington Trust Company, as Delaware Trustee (the "Delaware Trustee"). The
assets of the Trust will include, among other things, a pool of student loans
(the "Initial Financed Student Loans") and all amounts collected thereunder on
and after the Closing Date, as defined below. Such Initial Financed Student
Loans will be acquired by the Trust from the Sponsor pursuant to a loan purchase
agreement, to be dated as of November 1, 2003 (as amended and supplemented from
time to time, the "Sponsor Student Loan Purchase Agreement"), among the Trust,
Collegiate Funding and the Sponsor. After the Closing Date, the Trust may
acquire additional student loans pursuant to the Sponsor Student Loan Purchase
Agreement (such additional Student Loans, together with the Initial Financed
Student Loans, being referred to herein, collectively, as the "Financed Student
Loans"). The Sponsor will acquire the Initial Financed Student Loans to be sold
pursuant to the Sponsor Student Loan Purchase Agreement from Collegiate Funding
Services Resources I, LLC (the "Seller") pursuant to a loan purchase agreement,
to be dated as of November 1, 2003 (as amended and supplemented from time to
time, the "Seller Student Loan Purchase Agreement"), among the Sponsor,
Collegiate Funding Services, L.L.C. and the Seller. The Financed Student Loans
to be sold to the Trust by the Sponsor after the Closing Date pursuant to the
Sponsor Student Loan Purchase Agreement will be originated by the Sponsor,
acting through an eligible lender trustee. The Financed Student Loans are to be
serviced by Collegiate Funding Master Servicing, L.L.C. (the "Master Servicer")
pursuant to a servicing agreement, to be dated as of November 1, 2003 (as
amended and supplemented from time to time, the "Master Servicing Agreement"),
among the Trust, the Master Servicer and the Indenture Trustee, as hereinafter
defined. In turn, the Master Servicer will enter into a servicing agreement, to
be dated as of November 1, 2003 (as amended and supplemented from time to time,
the "Sub-Servicing Agreement"), with CFS-SunTech Servicing LLC ("CFS-SunTech"
or, in its capacity as sub-servicer, the "Sub-Servicer") pursuant to which the
Sub-Servicer will service all of the Financed Student Loans on behalf of the
Master Servicer. The Financed Student Loans have been and will be originated
pursuant to a student loan origination and servicing agreement (the "Origination
Agreement"), between the Sponsor and CFS-SunTech, as originating agent (the
"Originating Agent") or a loan origination and servicing agreement (the "Seller
Origination Agreement") between the Seller and the Originating Agent. The Notes
will be issued pursuant to an indenture of trust, to be dated as of November 1,
2003 (as amended and supplemented from time to time, the "Indenture"), between
the Trust and U.S. Bank National Association, as indenture trustee (the
"Indenture Trustee") and as eligible lender trustee (the "Eligible Lender
Trustee"). In addition, pursuant to an administration agreement, to be dated as
of November 1, 2003 (as amended and supplemented from time to time, the
"Administration Agreement"), among the Trust, Collegiate Funding Portfolio
Administration, L.L.C. (the "Administrator") and the Indenture Trustee, the
Administrator will agree to perform certain administrative tasks on behalf of
the Trust. The Issuer and the Administrator will also enter into a Back-up
Administration Agreement, to be dated as of November 1, 2003 (the "Back-up
Administration Agreement"), with Lord SPV Securities Corporation (the "Back-up
Administrator"). The Trust will have the benefit of two interest LIBOR Swaps
issued pursuant to two ISDA Master Agreements and two Schedules in connection
therewith, all dated November 12, 2003 (collectively, the "LIBOR Swap
Agreement"), between the Trust and Bank of America, N.A., and JPMorgan Chase
Bank (collectively, the "LIBOR Swap Counterparties"). The Trust and the
Indenture Trustee will also enter into an investment agreement, dated as of the
Closing Date (the "Investment Agreement"), with an investment agreement provider
acceptable to the Rating Agencies and the Underwriters (the "Investment
Agreement Provider").
In
connection with the determination of the interest rates on the Class A-3
Notes, the Class A-4 Notes, the Class A-5 Notes, the Class A-6
Notes, the Class A-7 Notes, the Class B-1 Notes and the Class B-2
Notes (collectively, the “Auction Rate Notes”), the Trust and the
Indenture Trustee will enter into an auction agent agreement, to be dated as of
November 1, 2003 (as amended and supplemented from time to time, the
“Auction Agent Agreement”), with The Bank of New York, as auction
agent (the “Auction Agent”). The Auction Agent will, in turn, enter
into three broker-dealer agreements, each to be dated as of November 1,
2003 (each, as amended and supplemented from time to time, a “Broker-Dealer
Agreement”), with Banc of America Securities LLC (with respect to the
Class A-3 Notes, the Class A-5 Notes and the Class B-1 Notes),
X.X. Xxxxxx Securities Inc. (with respect to the Class A-4 Notes, the
Class A-6 Notes and the Class B-2 Notes) and Citigroup Global Markets
Inc. (with respect to the Class A-7 Notes). The Indenture Trustee will
enter into three market agent agreements, each to be dated as of
November 1, 2003 (each, as amended and supplemented from time to time, a
“Market Agent Agreement”), with Banc of America Securities LLC (with
respect to the Class A-3 Notes, the Class A-5 Notes and the
Class B-1 Notes), X.X. Xxxxxx Securities Inc. (with respect to the
Class A-4 Notes, the Class A-6 Notes and the Class B-2 Notes) and
Citigroup Global Markets Inc. (with respect to the Class A-7 Notes).
The
Indenture Trustee and the Eligible Lender Trustee have previously entered into a
joint sharing agreement, dated February 1, 2003 (as amended and
supplemented from time to time, the “Joint Sharing Agreement”), with
such other entities for which the Eligible Lender Trustee is an eligible lender
trustee (including the Trust) and uses the same eligible lender number for the
holding of student loans as it uses for the Financed Student Loans.
Capitalized
terms used and not otherwise defined herein shall have the meanings given them
in the Prospectus (as hereinafter defined) or, if not defined therein, as
defined in the Indenture. As used herein, the term “Basic Documents”
refers to this Agreement, the Trust Agreement, the Indenture, the Master
Servicing Agreement, the Sub-Servicing Agreement, the Origination Agreement, the
Seller Origination Agreement, the Administration Agreement, the Back-up
Administration Agreement, the Sponsor Student Loan Purchase Agreement, the
Seller Student Loan Purchase Agreement, the Guarantee Agreements, the LIBOR Swap
Agreement, the Investment Agreement, the Auction Agent Agreement, the
Broker-Dealer Agreements, the Market Agent Agreements, the Joint Sharing
Agreement, the eligible lender trust agreements previously entered into or to be
entered into between the Sponsor and the Trust, respectively, and U.S. Bank
National Association, as eligible lender trustee (collectively, the
“Eligible Lender Trust Agreements”), the custodian agreements
previously entered into or to be entered into among the Trust and the Sponsor,
respectively, and the Indenture Trustee and CFS-SunTech, as custodian (the
“Custodian”) (collectively, the “Custodian Agreements”) and
the letter of representations, given by the Trust and the Indenture Trustee to
The Depository Trust Company (“DTC”) in connection with the
registration of the Notes.
2. Representations and Warranties of the
Sponsor and Collegiate Funding. The Sponsor and Collegiate Funding each
represent and warrant to and agree with the Underwriters that:
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(a)
A registration statement on Form S-3 (No. 333-102258), including a form of
prospectus and such amendments thereto as may have been required to the date
hereof, relating to the Notes and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the
"Act"), has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to the
Underwriters and excluding exhibits to such registration statement but including
all documents incorporated by reference in the prospectus contained therein, to
the Underwriters, have been declared effective by the Commission in such form;
no other document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed or transmitted for
filing with the Commission (other than prospectuses filed pursuant to Rule
424(b) ("Rule 424(b)") of the rules and regulations of the Commission (the
"Rules and Regulations") under the Act, each in the form heretofore delivered to
the Underwriters); and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission. The various parts of such
registration statement including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the registration
statement at the time such registration statement became effective (but
excluding the Form T-1 filed in connection therewith), each as amended at the
time such part of such registration statement became effective, is hereinafter
referred to as the "Registration Statement," and the prospectus included in such
Registration Statement, as supplemented to reflect the terms of the Notes as
first filed with the Commission after the date of this Agreement pursuant to and
in accordance with Rule 424(b), is hereinafter referred to as the "Prospectus,"
a "preliminary prospectus" means any form of prospectus, including any
prospectus supplement, relating to the Notes used prior to the date of this
Agreement that is subject to completion; the "Base Prospectus" means the base
prospectus to be dated on or about November 20, 2003, included in the
Prospectus; the "Prospectus Supplement" means the prospectus supplement to be
dated on or about November 20, 2003, included in the Prospectus. |
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(b)
On the effective date of the Registration Statement, the Registration Statement
and the Prospectus conformed in all respects to the requirements of the Act, the
Rules and Regulations and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the Rules and Regulations thereunder, and, except
with respect to information omitted pursuant to Rule 430A of the Act, did not
include any untrue statement of a material fact or, in the case of the
Registration Statement, omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and, in the
case of the Prospectus, omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and on the date of this Agreement and on the Closing Date,
the Registration Statement and the Prospectus will conform in all respects to
the requirements of the Act, the Rules and Regulations and the Trust Indenture
Act, and neither of such documents included or will include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that the foregoing does not apply to statements in or omissions from
the Registration Statement or the Prospectus based upon written information
furnished by the Underwriters (as described in Section 7(b) hereof),
specifically for use therein. |
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(c)
The Notes are "asset backed securities" within the meaning of, and satisfy the
requirements for use of, Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, and the conditions of Rule 415 of the Act have been
satisfied with respect to the Registration Statement. The Commission has not
issued and, to the best knowledge of the Company, is not threatening to issue
any order preventing or suspending the use of the Registration Statement. |
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(d)
The documents incorporated by reference in the Registration Statement and
Prospectus, when they become effective or hereafter become effective, or at the
time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the Trust Indenture Act
and the Rules and Regulations thereunder and none of such documents contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading. |
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(e)
Each of Collegiate Funding, the Sponsor, the Seller, the Master Servicer and the
Administrator is duly organized, validly existing and in good standing under the
laws of its respective jurisdiction of organization, is duly qualified to
transact business in each jurisdiction in which it is required to be so
qualified and has all necessary licenses, permits and consents to conduct its
business as currently conducted and as described in the Prospectus and to
perform its obligations under the Basic Documents except where the failure to be
so qualified or to have such licenses, permits or consents would not have a
material adverse affect on Collegiate Funding, the Sponsor, the Seller, the
Master Servicer or the Administrator, as applicable, or on its ability to
perform its obligations under the Basic Documents. |
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(f)
This Agreement and each of the other Basic Documents to which Collegiate
Funding, the Sponsor, the Seller, the Master Servicer or the Administrator is a
party has been duly authorized and, when executed and delivered by Collegiate
Funding, the Sponsor, the Seller, the Master Servicer or the Administrator, as
applicable, will constitute a valid and binding agreement of Collegiate Funding,
the Sponsor, the Seller, the Master Servicer and the Administrator,
respectively, enforceable against Collegiate Funding, the Sponsor, the Seller,
the Master Servicer and the Administrator, respectively, in accordance with its
terms, subject as to the enforcement of remedies (i) to applicable bankruptcy,
insolvency, reorganization, moratorium, and other similar laws affecting
creditors' rights generally; (ii) to general principles of equity (regardless of
and whether the enforcement of such remedies is considered in a proceeding in
equity or at law); and (iii) with respect to rights of indemnity under this
Agreement, to limitations of public policy under applicable securities laws. |
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(g)
None of Collegiate Funding, the Sponsor, the Seller, the Master Servicer or the
Administrator is in breach or violation of (i) its organizational documents or
(ii) any indenture, mortgage, deed or trust, lease, credit or security agreement
or other agreement or instrument to which it is a party or by which it or its
properties may be bound, or in violation of any applicable law, statute,
regulation or ordinance or any governmental body having jurisdiction over it,
except where such breach or violation would not have a material adverse affect
on Collegiate Funding, the Sponsor, the Seller, the Master Servicer or the
Administrator, as applicable, or in its ability to perform its obligations under
the Basic Documents. |
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(h)
Other than as contemplated by this Agreement or as disclosed in the Prospectus,
there is no broker, finder or other party that is entitled to receive from the
Sponsor, 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. |
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(i)
Neither the Sponsor nor any of its affiliates has entered into, nor will it
enter into, any contractual arrangement with respect to the distribution of the
Notes, except for this Agreement. |
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(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"). |
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(k)
As of the Closing Date (as defined below), the representations and warranties of
Collegiate Funding, the Sponsor, the Seller, the Master Servicer and the
Administrator, in each of their respective capacities under each of the Basic
Documents to which they are a party, will be true and correct in all material
respects as of the date of such representation or warranty was given and each
such representation and warranty is so incorporated herein by this reference. |
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(l)
The Trust's assignment of the Collateral to the Indenture Trustee pursuant to
the Indenture will vest in the Indenture Trustee, for the benefit of the
Noteholders, a first priority perfected security interest therein, subject to no
other outstanding Lien. |
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(m)
The Notes have been duly authorized on behalf of the Trust. The Notes, when duly
and validly executed, authenticated and delivered in accordance with the
Indenture, and delivered and paid for pursuant hereto, will constitute legally
valid and binding obligations of the Trust, entitled to the benefits of the
Indenture and enforceable in accordance with their terms, subject as to
enforceability to the effects of applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and similar laws now or
hereafter in effect relating to creditors' rights generally and subject to
general principles of equity (whether in a proceeding at law or in equity). |
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(n)
Neither the execution, delivery or performance of any of the Basic Documents by
Collegiate Funding, the Sponsor, the Seller, the Master Servicer or the
Administrator, nor the issuance, sale and delivery of the Notes, nor the
fulfillment of the terms of the Notes, will conflict with, or result in a
breach, violation or acceleration of, or constitute a default under, any term or
provision of the formation documents of Collegiate Funding, the Sponsor, the
Seller, the Master Servicer or the Administrator, any material indenture or
other material agreement or instrument to which Collegiate Funding, the Sponsor,
the Seller, the Master Servicer or the Administrator is a party or by which any
of them or their properties is bound or result in a violation of or contravene
the terms of any statute, order or regulation applicable to Collegiate Funding,
the Sponsor, the Seller, the Master Servicer or the Administrator of any court,
regulatory body, administrative agency, governmental body or arbitrator having
jurisdiction over Collegiate Funding, the Sponsor, the Seller, the Master
Servicer or the Administrator, or will result in the creation of any lien upon
any material property or assets of Collegiate Funding, the Sponsor, the Seller,
the Master Servicer or the Administrator (other than pursuant to the Basic
Documents). |
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(o)
Other than as disclosed in the Prospectus, there are no legal or governmental
proceedings pending to which Collegiate Funding, the Sponsor, the Seller, the
Master Servicer or the Administrator is a party or of which any of its
properties is the subject, which, if determined adversely to Collegiate Funding,
the Sponsor, the Seller, the Master Servicer or the Administrator, would
individually or in the aggregate have a material adverse effect on the financial
position, shareholders' equity or results of operations of any of them; and, to
the best of Collegiate Funding's and the Sponsor's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
others. |
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(p)
No consent, license, approval, authorization or order of or declaration or
filing with any governmental authority is required for the issuance of the Notes
or sale of the Notes or the consummation of the other transactions contemplated
by this Agreement or the other Basic Documents, except for state securities or
Blue Sky laws and except such as have been or will have been prior to the
Closing Date duly made or obtained. |
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(q)
Since the respective dates as of which information is given in the Registration
Statement and the Prospectus, as amended prior to the date hereof, there has not
been any material adverse change, or any development which could reasonably be
expected to result in a material adverse change, in or affecting the financial
position, shareholders' equity or results of operations of Collegiate Funding,
the Sponsor, the Seller, the Master Servicer or the Administrator, or Collegiate
Funding's, the Sponsor's, the Seller's, the Servicer's or the Administrator's
ability to perform its obligations under this Agreement or any of the other
Basic Documents to which it is a party. |
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(r)
Any taxes, fees and other governmental charges owed by Collegiate Funding, the
Sponsor, the Seller, the Master Servicer, the Administrator or the Trust due on
or prior to the Closing Date (including, without limitation, sales taxes) in
connection with the execution, delivery and issuance of this Agreement, the
other Basic Documents and the Notes have been or will have been paid at or prior
to the Closing Date, except for taxes, fees and other governmental charges in
respect of which the validity thereof will be contested in good faith by
appropriate proceedings. |
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(s)
Under generally accepted accounting principles, (i) the Seller will report its
transfer of the Financed Student Loans transferred by it to the Sponsor pursuant
to the Seller Student Loan Purchase Agreement as a sale of the Financed Student
Loans for financial accounting purposes and (ii) the Sponsor will report its
transfer of the Financed Student Loans to the Trust pursuant to the Sponsor
Student Loan Purchase Agreement as a sale of the Financed Student Loans for
financial accounting purposes (it being understood, however, that the sales
described in clauses (i) and (ii) may not be recognized for accounting purposes
due to the application of consolidated financial reporting). |
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(t)
Immediately prior to the transfer thereof by the Seller to the Sponsor, the
Seller will be the sole owner of all right, title and interest in, and will have
good and marketable title to, the Financed Student Loans to be transferred to
the Sponsor. Pursuant to the Seller Student Loan Purchase Agreement, the Seller
will transfer to the Sponsor ownership of the Financed Student Loans.
Immediately prior to the transfer thereof to the Trust, the Sponsor will be the
sole owner of all right, title and interest in, and will have good and
marketable title to, the Financed Student Loans. The assignment of the Financed
Student Loans, all documents and instruments relating thereto and all proceeds
thereof to the Trust, pursuant to the Sponsor Student Loan Purchase Agreement,
vests in the Indenture Trustee and the Eligible Lender Trustee, as appropriate,
on behalf of the Trust all interests which are purported to be conveyed thereby,
free and clear of any liens, security interests or encumbrances, other than
those contemplated by the Basic Documents. |
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(u)
Immediately upon the transfer of Financed Student Loans by the Seller to the
Sponsor pursuant to the Seller Student Loan Purchase Agreement, the Sponsor's
interest in such Financed Student Loans and the proceeds thereof shall be
perfected by the filing of UCC-1 financing statements naming the Seller and its
eligible lender trustee, as debtors, the Sponsor and its eligible lender
trustee, as secured parties, and the Indenture Trustee, as assignee (the "Seller
Financing Statements") in the offices specified in Schedule I and there shall be
no unreleased UCC financing statements filed against the Seller or its eligible
lender trustee in such Financed Student Loans other than the Seller Financing
Statements. If a court concludes that the transfer of such Financed Student
Loans from the Seller to the Sponsor is a sale, the interest of the Sponsor in
the Financed Student Loans and the proceeds thereof will be perfected upon the
filing of the Seller Financing Statements in the offices specified in Schedule
I. If a court concludes that such transfer is not a sale, the Seller Student
Loan Purchase Agreement and the transactions contemplated thereby shall
constitute a grant by the Seller to the Sponsor of a valid security interest in
the Financed Student Loans and the proceeds thereof, which security interest
will be perfected upon the filing of the Seller Financing Statements in the
office specified in Schedule I. No filing or other action, other than the filing
of the Seller Financing Statements in the offices specified in Schedule I and
any related continuation statements, is necessary to perfect and maintain the
interest or the security interest of the Sponsor in the Financed Student Loans
and the proceeds thereof against third parties. |
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(v)
Immediately upon the transfer of the Financed Student Loans by the Sponsor to
the Trust pursuant to the Sponsor Student Loan Purchase Agreement, the Trust's
interest in the Financed Student Loans and the proceeds thereof shall be
perfected by the filing of UCC-1 Financing Statements naming the Sponsor and its
eligible lender trustee, as debtors, the Trust and the Eligible Lender Trustee,
as secured parties, and the Indenture Trustee, as assignee (the "Sponsor
Financing Statements") in the offices specified in Schedule I and there shall be
no unreleased UCC financing statements filed against the Sponsor or its eligible
lender trustee in the Financed Student Loans other than the Sponsor Financing
Statements. If a court concludes that the transfer of the Financed Student Loans
from the Sponsor to the Trust is a sale, the interest of the Trust in the
Financed Student Loans and the proceeds thereof will be perfected upon the
filing of the Sponsor Financing Statements in the offices specified in Schedule
I. If a court concludes that such transfer is not a sale, the Sponsor Student
Loan Purchase Agreement and the transactions contemplated thereby constitute a
grant by the Sponsor to the Trust of a valid security interest in the Financed
Student Loans and the proceeds thereof, which security interest will be
perfected upon the filing of the Sponsor Financing Statements in the offices
specified in Schedule I. No filing or other action, other than the filing of the
Sponsor Financing Statements in the offices specified in Schedule I and any
related continuation statements, is necessary to perfect and maintain the
interest or the security interest of the Trust in the Financed Student Loans and
the proceeds thereof against third parties. |
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(w)
The Indenture and the transactions contemplated thereby constitute a grant by
the Trust and the Eligible Lender Trustee to the Indenture Trustee of a valid
security interest in the Collateral and the proceeds thereof, which security
interest will be perfected upon the filing of UCC-1 Financing Statements naming
the Trust and the Eligible Lender Trustee, as debtors, and the Indenture
Trustee, as secured party (the "Trust Financing Statements"), in the offices
specified in Schedule I and there shall be no unreleased UCC financing
statements filed against the Trust or the Eligible Lender Trustee in the
Collateral other than the Trust Financing Statements. No filing or other action,
other than the filing of the Trust Financing Statements and any related
continuation statements, is necessary to perfect and maintain the interest or
the security interest of the Indenture Trustee in the Collateral and the
proceeds thereof against third parties. |
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(x)
The Trust Agreement need not be qualified under the Trust Indenture Act. |
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(y)
The Indenture has been qualified under the Trust Indenture Act. |
3. Purchase, Sale and Delivery of the
Notes. On the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth, the Sponsor
agrees to cause the Trust to sell to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from the Trust, the principal
amount of each class of Notes set forth opposite the name of such Underwriter on
Schedule II hereto at a purchase price equal to the product of the "Price %" as
specified on Schedule III hereto for such class of Notes and the principal
amount of each class of Notes set forth opposite the name of such Underwriter on
Schedule II hereto. The Notes shall mature on the dates, and shall bear interest
at the respective rates, described in the Prospectus Supplement. For the periods
from the Closing Date through the ends of the respective Initial Auction
Periods, (a) the Class A-3 Notes, the Class A-5 Notes and the Class B-1 Notes
shall bear interest at rates not to exceed 3.00% per annum, to be agreed to by
the Sponsor and Banc of America Securities LLC; (b) the Class A-4 Notes, the
Class A-6 Notes and the Class B-2 Notes shall bear interest at rates not to
exceed 3.00% per annum, to be agreed to by the Sponsor and X.X. Xxxxxx
Securities Inc.; and (c) the Class A-7 Notes shall bear interest at rates not to
exceed 3.00% per annum, to be agreed to by the Sponsor and Citigroup Global
Markets Inc.
The
Sponsor will deliver the Notes to the Underwriters, against payment of the
purchase price to or upon the order of the Sponsor by wire transfer in federal
(same day) funds, at the office of Stroock & Stroock & Xxxxx
LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m.,
New York time on November 25, 2003, or at such other time not later
than seven full business days thereafter as the Underwriters and the Sponsor
agree in writing, such time being herein referred to as the “Closing
Date.” The Notes to be so delivered will be initially represented by one or
more Notes registered in the name of Cede & Co., the nominee of DTC.
The interests of beneficial owners of the Notes will be represented by book
entries on the records of DTC and participating members thereof. Definitive
Notes will be available only under the limited circumstances specified in the
Basic Documents.
4. Offering by Underwriters. It is
understood that the Underwriters propose to offer the Notes for sale to the
public (which may include selected dealers) on the terms set forth in the
Prospectus.
5. Covenants of the Sponsor. The Sponsor
covenants and agrees with the Underwriters that:
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(a)
The Sponsor will file the Prospectus in a form approved by the Underwriters with
the Commission pursuant to and in accordance with subparagraph (2) (or, if
applicable and if consented to by the Underwriters, subparagraph (5)) of Rule
424(b) no later than the second business day following the execution and
delivery of this Agreement. The Sponsor will advise the Underwriters promptly of
any such filing pursuant to Rule 424(b). |
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(b)
The Sponsor will advise the Underwriters promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus in connection with the
offering of the Notes and will not effect such amendment or supplementation
without the consent of the Underwriters, which consent shall not be unreasonably
withheld or delayed; and the Sponsor will advise the Underwriters promptly of
any amendment or supplementation of the Registration Statement or the Prospectus
in connection with the offering of the Notes and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued. |
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(c)
If, at any time when a prospectus relating to the Notes is required to be
delivered by an Underwriter or dealer, either (i) any event occurs as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or (ii) for any other reason it shall be
necessary to amend or supplement the Prospectus to comply with the Act, the
Sponsor promptly will notify the Underwriters of such event and promptly will
prepare, at its own expense, an amendment or supplement which will correct such
statement or omission. Neither the Underwriters' consent to, nor the
Underwriters' distribution of any amendment or supplement to the Prospectus
shall constitute a waiver of any of the conditions set forth in Section 6
hereof. |
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(d)
The Sponsor will, so long as delivery of a prospectus by an underwriter or
dealer is required by the Act, furnish to the Underwriters copies of any
preliminary prospectus, the Prospectus, the Registration Statement and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Underwriters reasonably request.
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(e)
The Sponsor will take all actions which are necessary to arrange for the
qualification of the Notes for offering and sale under the laws of such
jurisdictions as the Underwriters designate and will continue such
qualifications in effect so long as required under such laws for the
distribution of the Notes; provided, however, that in no event shall the Sponsor
be obligated to qualify as a foreign corporation or to execute a general or
unlimited consent or take any action that would subject it to service of process
in any such jurisdiction.
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(f)
The Sponsor shall, at all times upon request of the Underwriters or their
advisors, or both, from the date hereof through the Closing Date, (i) make
available to the Underwriters or its advisors, or both, prior to acceptance of
its purchase, such information (in addition to that contained in the
Registration Statement and the Prospectus) concerning the offering, the Sponsor
and any other relevant matters as they possess or can acquire without
unreasonable effort or expense, including any and all documentation requested in
connection with its due diligence efforts regarding information in the
Registration Statement and the Prospectus and in order to evidence the accuracy
or completeness of any of the conditions contained in this Agreement and (ii)
provide the Underwriters or its advisors, or both, prior to acceptance of its
subscription, the reasonable opportunity to ask questions of Collegiate Funding,
the Sponsor, the Seller, the Master Servicer and the Administrator with respect
to such matters.
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(g)
Until the retirement of the Notes, the Sponsor will deliver to the Underwriters
the annual statements of compliance and the annual independent certified public
accountants' reports furnished to the Indenture Trustee or the Eligible Lender
Trustee pursuant to the Basic Documents, as soon as such statements and reports
are furnished to the Indenture Trustee or the Eligible Lender Trustee.
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(h)
So long as any of the Notes are outstanding, the Sponsor will furnish to the
Underwriters as soon as practicable after the end of the fiscal year, all
documents required to be distributed to Noteholders or filed with the Commission
on behalf of the Sponsor pursuant to the Exchange Act, or any order of the
Commission thereunder.
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(i)
On or before the Closing Date (or, in the case of Financed Student Loans to be
acquired after by the Trust from the Sponsor pursuant to the Sponsor Student
Loan Purchase Agreement after the Closing Date, on or before the date of such
acquisition), the Sponsor shall cause the computer records of the Sponsor, the
Seller, the Master Servicer, the Sub-Servicer, the Custodian, the Originating
Agent and the Administrator relating to the Financed Student Loans to show the
ownership by the Eligible Lender Trustee on behalf of the Trust of the Financed
Student Loans, and from and after the Closing Date (or such later date of
acquisition) none of the Sponsor, the Seller, the Master Servicer, the
Sub-Servicer, the Custodian, the Originating Agent or the Administrator shall
take any action inconsistent with the ownership by the Eligible Lender Trustee
on behalf of the Trust of such Financed Student Loans, other than as permitted
by the Master Servicing Agreement.
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(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 Sponsor, the Seller, the Master Servicer, the Sub-Servicer, the
Custodian, the Originating Agent or the Administrator on or prior to the Closing
Date, the Sponsor shall or shall cause the Sponsor, the Seller, the Master
Servicer, the Sub-Servicer, the Custodian, the Originating Agent or the
Administrator, as applicable, to furnish such documents and take any such other
actions. A copy of any such documents shall be provided to the Underwriters at
the time it is delivered to the rating agencies.
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(k)
The Sponsor will pay all expenses incident to the performance of its obligations
under this Agreement, including, with limitation, (i) the printing and filing of
the documents (including the Registration Statement and the Prospectus); (ii)
the preparation, issuance and delivery of the Notes to the Underwriters; (iii)
the fees and disbursements of Collegiate Funding's, the Sponsor's, the Seller's,
the Master Servicer's and the Administrator's counsel (including without
limitation, local counsel) and accountants; (iv) the qualification of the Notes
under state securities laws, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any blue sky or legal investment survey, if
any is requested; (v) the printing and delivery to the Underwriters of copies of
the Registration Statement and the Prospectus and each amendment thereto; (vi)
the reasonable expenses of the Underwriters (other than its counsel); (vii) the
fees and reasonable expenses of counsel to the Underwriters, (viii) any fees
charged by rating agencies for the rating of the Notes, (ix) the fees and
expenses of the Trust and its counsel; (x) the fees and expenses of the Delaware
Trustee, the Indenture Trustee and the Eligible Lender Trustee, and each of
their counsel; and (xi) any set-up fee charged by the LIBOR Swap Counterparties.
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(l)
The Sponsor will cause the Trust to make generally available to holders of
Notes, as soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Trust (which need not be
audited) complying with Section 11(a) of the Act (including, at the option of
the Sponsor, Rule 158).
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(m)
The Sponsor will cooperate with the Underwriters and with their counsel in
connection with the qualification of, or procurement of exemptions with respect
to, the Notes for offering and sale by the Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions as the Underwriters may
designate and will file such consents to service of process or other documents
necessary or appropriate in order to effect such qualification or exemptions;
provided that in no event shall the Sponsor be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to service of process in suits, other than those
arising out of the offering or sale of the Notes, in any jurisdiction where it
is not now so subject.
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(n)
The Sponsor consents to the use, in accordance with the securities or Blue Sky
laws of such jurisdictions in which the Notes are offered by the Underwriters
and by dealers, of the Prospectus furnished by the Sponsor.
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(o)
The net proceeds from the sale of the Notes hereunder will be applied
substantially in accordance with the description set forth in the Prospectus.
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(p)
Except as stated in this Agreement and in the Prospectus, the Sponsor has not
taken, nor will it take, directly or indirectly, any action designed to or that
might reasonably be expected to cause or result in stabilization or manipulation
of the price of the Notes to facilitate the sale or resale of the Notes.
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(q)
For the period beginning on the date of this Agreement and ending 90 days
hereafter, none of the Sponsor, Collegiate Funding or any entity affiliated,
directly or indirectly, with the Sponsor or Collegiate Funding will, without
prior written notice to the Underwriters, offer to sell or sell notes (other
than the Notes) collateralized by student loans; provided, however, that this
shall not be construed to prevent the sale of student loan applications or
student loans by Collegiate Funding.
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(r)
If, at the time the Registration Statement became effective, any information
shall have been omitted therefrom in reliance upon Rule 430A under the Act,
then, immediately following the execution of this Agreement, the Sponsor will
prepare, and file or transmit for filing with the Commission in accordance with
such Rule 430A and Rule 424(b) under the Act, copies of an amended Prospectus
containing all information so omitted.
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6. Conditions of the Obligations of the
Underwriters. The obligations of the Underwriters to purchase and pay for
the Notes will be subject to the accuracy, as of the date hereof and as of the
Closing Date, of the representations and warranties of Collegiate Funding and
the Sponsor herein, to the accuracy of the written statements of officers of
Collegiate Funding, the Sponsor, the Seller, the Master Servicer, the
Administrator, the Sub-Servicer, the Custodian, the Originating Agent, the
Delaware Trustee, the Indenture Trustee and the Eligible Lender Trustee made
pursuant to the provisions of this Section, to the performance by Collegiate
Funding and the Sponsor of their obligations hereunder and to the following
additional conditions precedent:
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(a)
The Underwriters shall have received a letter, of Ernst & Young, LLP, dated on
or prior to the date hereof, confirming that such accountants are independent
public accountants within the meaning of the Act, and substantially in the form
of the drafts to which the Underwriters have previously agreed and otherwise in
form and substance satisfactory to the Underwriters and counsel for the
Underwriters (i) regarding certain numerical information contained in the
Prospectus and (ii) relating to certain agreed-upon procedures.
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(b)
The Prospectus shall have been filed with the Commission in accordance with the
Act and Section 5(a) hereof. On or prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Sponsor, shall be contemplated by the Commission.
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(c)
Subsequent to the execution and delivery of this Agreement, there shall not have
occurred (i) any change, or any development involving a prospective change, in
or affecting the Financed Student Loans or particularly the business or
properties of the Trust, Collegiate Funding, the Sponsor, the Seller, the Master
Servicer, the Sub-Servicer, the Custodian, the Originating Agent, the
Administrator or the LIBOR Swap Counterparties, which, in the sole discretion of
the Underwriters, materially impairs the investment quality of the Notes; (ii)
any downgrading in the rating of any securities of Collegiate Funding, the
Sponsor, the Seller, the Master Servicer, the Sub-Servicer, the Custodian or the
Originating Agent, by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any such debt securities (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, American Stock Exchange, or
NASDAQ National Market, or any setting of minimum or maximum prices for trading
on such exchange; (iv) any banking moratorium declared by Federal or New York
authorities; (v) any outbreak or escalation of hostilities in which the United
States is involved, any declaration of war or national emergency by Congress,
any material disruption in the financial markets or any other substantial
national or international calamity or emergency if, in the sole judgment of the
Underwriters, the effect of any such outbreak, escalation, declaration, material
disruption, calamity or emergency makes it impractical or inadvisable to proceed
with the public offering or the delivery of the Notes as contemplated by the
Registration Statement, as amended as of the date hereof; (vi) a material
disruption has occurred in securities settlement or clearance services in the
United States; or (vii) any event or development which makes any statement made
in the Registration Statement or Prospectus untrue or which, in the opinion of
the Sponsor or Collegiate Funding and their counsel or the Underwriters and
their counsel, requires the filing of any amendment to or change in the
Registration Statement or Prospectus in order to state a material fact required
by any law to be stated therein or necessary in order to make the statements
therein not misleading, if amending or supplementing the Registration Statement
or Prospectus to reflect such event or development would, in the opinion of the
Representatives, materially adversely affect the market for the Notes.
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(d)
On the Closing Date, each of the Basic Documents and the Notes shall have been
duly authorized, executed and delivered by the parties thereto, shall be in full
force and effect and no default shall exist thereunder, and the Indenture
Trustee and the Underwriters shall each have received a fully executed copy
thereof or, with respect to the Notes, a conformed copy thereof. The Basic
Documents and the Notes shall be substantially in the forms heretofore provided
to the Underwriters.
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(e)
The Underwriters shall have received an opinion of XxXxxxx Xxxx, dated the
Closing Date and satisfactory in form and substance to the Underwriters, to the
effect that:
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(i)
Each of Collegiate Funding, the Master Servicer and the Administrator has been
duly formed and is validly existing as a limited liability company in good
standing under the laws of its jurisdiction of organization, with full power and
authority to own its properties and conduct its business, and is duly qualified
to transact business and is in good standing in each jurisdiction in which its
failure to qualify would have a material adverse effect upon transactions
contemplated by the Basic Documents and its business or the ownership of its
property. |
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(ii)
Each of the Basic Documents to which Collegiate Funding, the Master Servicer or
the Administrator is a party is the legal, valid and binding obligation of
Collegiate Funding, the Master Servicer and the Administrator, as applicable,
enforceable against Collegiate Funding, the Master Servicer and the
Administrator in accordance with its terms. |
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(iii)
Neither the execution, delivery and performance by Collegiate Funding, the
Master Servicer or the Administrator, respectively, of the Basic Documents to
which it is a party, nor the consummation by Collegiate Funding, the Master
Servicer or the Administrator, as applicable, of the transactions contemplated
thereby, will conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the property or assets
of Collegiate Funding, the Master Servicer or the Administrator, as applicable,
pursuant to the terms of the formation documents of Collegiate Funding, the
Master Servicer or the Administrator, as applicable, or any statute, rule,
regulation or order of any governmental agency or body, or any court having
jurisdiction over Collegiate Funding, the Master Servicer or the Administrator,
as applicable, or its properties, or any agreement or instrument known to such
counsel after due investigation to which Collegiate Funding, the Master Servicer
or the Administrator, as applicable, is a party or by which Collegiate Funding,
the Master Servicer or the Administrator, as applicable, or any of its
properties is bound.
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(iv)
No authorization, license, approval, consent or order of, or filing with, any
court or governmental agency or authority is necessary in connection with the
execution, delivery and performance by Collegiate Funding, the Master Servicer
or the Administrator, respectively, of the Basic Documents to which it is a
party, except for those which have been obtained and except for those that may
be required under state securities or Blue Sky laws.
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(v)
There are no legal or governmental proceedings known to such counsel to be
pending to which Collegiate Funding, the Master Servicer or the Administrator is
a party or of which any property of Collegiate Funding, the Master Servicer or
the Administrator is the subject, nor are any such proceedings known to such
counsel to be threatened or contemplated by governmental authorities or
threatened by others (i) asserting the invalidity of all or any part of the
Basic Documents to which Collegiate Funding, the Master Servicer or the
Administrator is a party, or (ii) that could materially adversely affect the
ability of Collegiate Funding, the Master Servicer or the Administrator to
perform its obligations under Basic Documents to which it is a party.
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Such
opinion may contain such assumptions, qualifications and limitations as are
customary in opinions of this type and are reasonably acceptable to counsel to
the Underwriters. In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the federal law
of the United States of America (excluding federal securities and tax laws) and
the laws of the State of Virginia.
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(f)
The Underwriters shall have received an opinion of Stroock & Stroock & Xxxxx
LLP, special counsel to the Sponsor and the Seller, dated the Closing Date and
satisfactory in form and substance to the Underwriters, to the effect that:
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(i)
The Sponsor has been duly formed and is validly existing as a limited liability
company in good standing under the laws of its jurisdiction of organization,
with full power and authority to own its properties, conduct its business and
consummate the transactions contemplated by the Basic Documents to which it is a
party.
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(ii)
Each of the Basic Documents to which the Sponsor is a party is the legal, valid
and binding obligation of the Sponsor enforceable against the Sponsor in
accordance with its terms.
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(iii)
Each of the Basic Documents to which the Seller is a party is the legal, valid
and binding obligation of the Seller enforceable against the Seller in
accordance with its terms.
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(iv)
When the Notes have been duly executed, authenticated and delivered in
accordance with the Indenture and paid for pursuant to this Agreement, the Notes
will be validly issued and outstanding, entitled to the benefits of the
Indenture and enforceable in accordance with their terms.
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(v)
The Registration Statement is effective under the Act and, to the best of such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement or any part thereof or any amendment thereto has been
issued under the Act and no proceeding for that purpose has been instituted or
threatened by the Commission.
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(vi)
The Sponsor is not, and will not as a result of the offer and sale of the Notes
as contemplated in the Prospectus and this Agreement become, required to be
registered as an "investment company" as defined in the Investment Company Act
of 1940, as amended (the "Investment Company Act").
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(vii)
The Trust is not, and will not as a result of the offer and sale of the Notes as
contemplated in the Prospectus and this Agreement become, required to be
registered under the Investment Company Act.
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(viii)
The Indenture has been duly qualified under the Trust Indenture Act. |
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(ix)
The statements in the Prospectus Supplement under the headings "SUMMARY OF
TERMS--Federal income tax consequences," "Certain Federal Income Tax
Considerations," "Summary of Terms--ERISA considerations," and "ERISA
Considerations," and in the Base Prospectus under the headings "Federal Income
Tax Consequences," "ERISA Considerations" and "Description of the Federal Family
Education Loan Program," to the extent that they constitute statements of
matters of law or legal conclusions with respect thereto, have been reviewed by
such counsel and accurately describe the matters discussed therein.
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(x)
The Notes will be properly characterized as debt for federal income tax purposes
under federal income tax law and the Trust will not be characterized as an
association (or publicly traded partnership) taxable as a corporation under
federal income tax law.
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(xi)
The Registration Statement, as of its effective date, and the Prospectus as of
the date of this Agreement, and any amendment or supplement thereto, as of its
date, complied as to form in all material respects with the requirements of the
Act (except with respect to the financial statements, the exhibits, annexes and
other financial, statistical, numerical or portfolio data, economic conditions
or financial condition of the portfolio information included in or incorporated
by reference into the Registration Statement relating to the Notes, the
Prospectus or any amendment or supplement thereto).
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(xii)
No facts have come to such counsel's attention which cause them to believe that
the Registration Statement, as of its effective date, and the Prospectus, as of
the date of this Agreement, or any amendment or supplement thereto, as of its
date when it became effective, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or that the Prospectus on its
date contained or on the Closing Date contains, any untrue statement of a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that such
counsel need not express any view with respect to (A) the financial, statistical
or computational material included in or incorporated by reference into the
Registration Statement, the Prospectus or any amendment or supplement thereto;
or (B) statements in the Prospectus Supplement under the captions "The Student
Loan Operations of Collegiate Funding Services Education Loan Trust
2003-B--Description of CFS-SunTech Servicing LLC," "Information Relating to the
Guarantee Agencies--American Student Assistance," "--Great Lakes Higher
Education Guaranty Corporation" or "--Texas Guaranteed Student Loan Corporation"
or "LIBOR Derivative Product Agreements--Counterparties to the LIBOR Derivative
Product Agreements."
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Such
opinion may contain such assumptions, qualifications and limitations as are
customary in opinions of this type and are reasonably acceptable to counsel to
the Underwriters. In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the federal law
of the United States of America and the laws of the State of New York and
the General Corporation Law of the State of Delaware. In rendering such opinion,
such counsel may rely on the opinion of Xxxxxxxx, Xxxxxx & Finger for
certain matters relating to the laws of the State of Delaware.
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(g)
The Underwriters shall have received the opinion or opinions of in-house counsel
to the Sponsor, the Master Servicer and the Administrator and/or such other
counsel acceptable to the Underwriters and counsel for the Underwriters, dated
the Closing Date and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, to the effect that:
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(i)
The Sponsor is duly qualified to transact business and is in good standing in
each jurisdiction in which its failure to qualify would have a material adverse
effect upon transactions contemplated by the Basic Documents and its business or
ownership of its property.
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(ii)
Neither the execution, delivery and performance by the Sponsor of the Basic
Documents to which it is a party, nor the consummation by the Sponsor of the
transactions contemplated thereby, will conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of the Sponsor, pursuant to the terms of the limited
liability company agreement of, or any statute, rule, regulation or order of any
governmental agency or body, or any court known to such counsel to be applicable
to the Sponsor or its properties, or any agreement or instrument known to such
counsel to which the Sponsor is a party or by which any of its properties are
bound.
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(iii)
No authorization, license, approval, consent or order of, or filing with, any
court or governmental agency or authority, which has not been obtained or
accomplished by the Sponsor, is necessary to be obtained or accomplished by the
Sponsor in connection with the execution, delivery and performance of this
Agreement and each of other the Basic Documents to which it is a party, except
for those that may be required under state securities or Blue Sky laws.
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(iv)
There are no legal or governmental proceedings known to such counsel to be
pending to which the Sponsor, the Master Servicer or the Administrator is a
party or of which any property of the Sponsor, the Master Servicer or the
Administrator is the subject, nor are any such proceedings known to such counsel
to be threatened or contemplated by governmental authorities or threatened by
others (i) asserting the invalidity of all or any part of the Basic Documents or
(ii) that could materially adversely affect the ability of the Sponsor, the
Master Servicer or the Administrator to perform its obligations under the Basic
Agreements to which it is a party.
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Such
opinion may contain such assumptions, qualifications and limitations as are
customary in opinions of this type and are reasonably acceptable to counsel to
the Underwriters. In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the federal law
of the United States of America (excluding federal securities and tax laws).
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(h)
The Underwriters shall have received opinions of Stroock & Stroock & Xxxxx LLP
and Xxxxxxxx, Xxxxxx & Finger, each dated the Closing Date, satisfactory in form
and substance to the Underwriters and counsel for the Underwriters to the effect
that the Indenture Trustee has a valid and perfected, first priority security
interest in the Financed Eligible Loans under the Indenture.
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(i)
The Underwriters shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger,
special counsel to the Seller, dated the Closing Date, satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, to the effect
that:
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(i)
The Seller has been duly formed and is validly existing in good standing as a
limited liability company under the laws of the State of Delaware.
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(ii)
Under the Delaware Limited Liability Company Act, 6 Del. C.§ 18-101, et seq.
(the "LLC Act"), and the Seller's limited liability company agreement, the
Seller has all necessary limited liability company power and authority to
execute and deliver the Basic Documents to which it is a party and to perform
its obligations thereunder.
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(iii)
Under the LLC Act and the Seller's limited liability company agreement, the
execution and delivery by the Seller of the Basic Documents to which it is a
party, and the performance by the Seller of its obligations thereunder, have
been duly authorized by all necessary limited liability company action on the
part of the Seller.
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(iv)
The execution and delivery by the Seller of the Basic Documents to which it is a
party, and the performance by the Seller of its obligations thereunder, do not
violate (A) any Delaware law, rule or regulation, or (B) the Seller's limited
liability company certificate or the Seller's limited liability company
agreement.
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(v)
No authorization, consent, approval or order of any Delaware court or any
Delaware governmental or administrative body is required solely in connection
with the execution and delivery by the Seller of the Basic Documents to which it
is a party or the performance by the Seller of its obligations thereunder.
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(vi)
The security interest granted by the Seller to the Sponsor in the Financed
Student Loans is perfected under Delaware Law.
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(j)
The Underwriters shall have received opinions of Stroock & Stroock & Xxxxx LLP,
in its capacity as counsel to the Sponsor, dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, with respect to the creation of a "true sale" with respect to the
transfer of the Financed Student Loans from the Seller to the Sponsor and
nonconsolidation of (i) the Seller and the Sponsor and (ii) Collegiate Funding
and the Sponsor. Such opinions shall be limited to the laws of the State of New
York and United States federal law.
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(k)
The Underwriters shall have received an opinion of Stroock & Stroock & Xxxxx
LLP, in its capacity as counsel to the Sponsor, dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, with respect to the creation of a "true sale" or perfected
security interest with respect to the transfer of the Financed Student Loans
from the Sponsor to the Trust and nonconsolidation of the Sponsor and the Trust.
Such opinion shall be limited to the laws of the States of New York and United
States federal law.
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(l)
The Underwriters shall have received an opinion of counsel to the Indenture
Trustee and the Eligible Lender Trustee, dated the Closing Date and satisfactory
in form and substance to the Underwriters and counsel for the Underwriters, to
the effect that:
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(i)
Each of the Indenture Trustee and the Eligible Lender Trustee has been duly
organized as a national banking association and is validly existing and in good
standing under the laws of the United States.
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(ii)
Each of the Indenture Trustee and the Eligible Lender Trustee has the requisite
power and authority to execute, deliver and perform its obligations under the
Indenture and each other Basic Document to which it is a party and has taken all
necessary action to authorize the execution, delivery and performance by it of
the Indenture and each such Basic Document. |
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(iii)
The Eligible Lender Trustee has the full corporate trust power to accept the
office of eligible lender trustee under the Sponsor Student Loan Purchase
Agreement and the Indenture. |
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(iv)
Each of the Indenture and each other Basic Document to which it is a party has
been duly executed and delivered by the Indenture Trustee and the Eligible
Lender Trustee, as applicable, and constitutes a legal, valid and binding
obligation of the Indenture Trustee and the Eligible Lender Trustee, enforceable
against the Indenture Trustee and the Eligible Lender Trustee in accordance with
its respective terms. |
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(v)
The Notes have been duly authenticated and delivered by the Indenture Trustee in
accordance with the terms of the Indenture. |
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(vi)
The execution and delivery by the Indenture Trustee and the Eligible Lender
Trustee of the Indenture and each other Basic Document 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. |
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(vii)
None of (A) the consummation by the Indenture Trustee or the Eligible Lender
Trustee of the transactions contemplated in the Basic Documents, (B) the
consummation by the Trust of the transactions contemplated in the Basic
Documents; or (C) the fulfillment of the terms thereof by the Indenture Trustee,
the Eligible Lender Trustee or the Trust, as the case may be, will conflict
with, result in a breach or violation of, or constitute a default under any law
or the Articles of Association, Bylaws or other organizational documents of the
Indenture Trustee or the Eligible Lender Trustee or the terms of any indenture
or other agreement or instrument known to such counsel after due investigation
and to which the Indenture Trustee or the Eligible Lender Trustee or any of its
subsidiaries is a party or by which it or any of them is bound or any judgment,
order or decree known to such counsel to be applicable to the Indenture Trustee
or the Eligible Lender Trustee or any of its subsidiaries, of any court,
regulatory body, administrative agency, governmental body or arbitrator having
jurisdiction over the Indenture Trustee or the Eligible Lender Trustee or any of
its subsidiaries.
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(viii)
The Eligible Lender Trustee is an "eligible lender" for purposes of the FFELP
Program in its capacity as eligible lender trustee with respect to the Financed
Student Loans.
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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.
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(m)
The Underwriters shall have received an opinion of counsel to the Delaware
Trustee, dated the Closing Date and satisfactory in form and substance to the
Underwriters and its counsel, to the effect that:
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(i)
The Delaware Trustee is duly incorporated and is validly existing and in good
standing as a banking corporation under the laws of the State of Delaware and
has the power and authority to execute, deliver and perform its obligations
under the Trust Agreement.
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(ii)
The Trust Agreement has been duly authorized, executed and delivered by the
Delaware Trustee. |
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(iii)
Neither the execution, delivery and performance by the Delaware Trustee of the
Trust Agreement, nor the consummation of any of the transactions by the Delaware
Trustee contemplated thereby, requires the consent or approval of, the
withholding of objection on the part of, the giving of notice to, the filing,
registration or qualification with, or the taking of any other action in respect
of, any governmental authority or agency under the laws of the State of Delaware
or the federal laws of the United States of America governing the trust powers
of the Delaware Trustee.
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(iv)
Neither the execution, delivery and performance by the Delaware Trustee of the
Trust Agreement, nor the consummation of any of the transactions by the Delaware
Trustee contemplated thereby, is in violation of the charter or bylaws of the
Delaware Trustee or of the laws of the State of Delaware or of the federal laws
of the United States of America governing the trust powers of the Delaware
Trustee or, to our knowledge, without independent investigation, of any
indenture, mortgage, bank credit agreement, note or bond purchase agreement,
long-term lease, license or other agreement or instrument to which it is a party
or by which it is bound or, to our knowledge, without independent investigation,
of any judgment or order applicable to the Delaware Trustee.
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Such
opinion may contain such assumptions, qualifications and limitations as are
customary in opinions of this type and are reasonably acceptable to counsel to
the Underwriters. In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the laws of the
State of Delaware.
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(n)
The Underwriters shall have received copies of each opinion of counsel delivered
to the Rating Agencies, together with a letter addressed to the Underwriters,
dated the Closing Date, to the effect that the Underwriters may rely on each
such opinion to the same extent as though such opinion was addressed to each as
of its date.
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(o)
The Underwriters shall have received opinions of counsel to the LIBOR Swap
Counterparties, each dated the Closing Date, in form and substance satisfactory
to the Underwriters and their counsel.
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(p)
The Underwriters shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger,
special Delaware counsel for the Trust, dated the Closing Date, in form and
substance satisfactory to the Underwriters and their counsel, to the effect
that:
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(i)
The Trust has been duly formed and is validly existing as a statutory trust
under the Delaware Statutory Trust Act, 12 Del. C.§ 3801, et seq. (the
"Trust Act"), and has the power and authority under the Trust Agreement and the
Trust Act to execute, deliver and perform its obligations under the Basic
Documents to which it is a party.
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(ii)
Each of the Basic Documents to which the Trust is a party has been duly
authorized, executed and delivered by the Trust.
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(iii)
The Trust Agreement is the legal, valid and binding obligation of Delaware
Trustee and the Sponsor, enforceable against the Delaware Trustee and the
Sponsor in accordance with its terms.
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(iv)
Neither the execution, delivery and performance by the Trust of the Basic
Documents to which it is a party, nor the consummation by the Trust of any of
the transactions contemplated thereby, requires the consent or approval of, the
withholding of objection on the part of, the giving of notice to, the filing,
registration or qualification with, or the taking of any other action in respect
of, any governmental authority or agency of the State of Delaware, other than
the filing of the Certificate of Trust and UCC financing statements with the
Secretary of State.
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(v)
Neither the execution, delivery and performance by the Trust of the Basic
Documents to which it is a party, nor the consummation by the Trust of the
transactions contemplated thereby, is in violation of the Trust Agreement or of
any law, rule or regulation of the State of Delaware applicable to the Trust.
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(vi)
Under § 3805(b) of the Trust Act, no creditor of any Certificateholder shall
have any right to obtain possession of, or otherwise exercise legal or equitable
remedies with respect to, the property of the Trust except in accordance with
the terms of the Trust Agreement.
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(vii)
Under the Trust Act, the Trust is a separate legal entity and, assuming that the
Sponsor Student Loan Purchase Agreement conveys good title to the Trust property
to the Trust as a true sale and not as a security arrangement, the Trust rather
than the Certificateholders will hold whatever title to the Trust property as
may be conveyed to it from time to time pursuant to the Sponsor Student Loan
Purchase Agreement, except to the extent that the Trust has taken action to
dispose of or otherwise transfer or encumber any part of the Trust property.
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(viii)
Under § 3805(c) of the Trust Act, except to the extent otherwise provided in
the Trust Agreement, a Certificateholder (including the Sponsor in its capacity
as such) has no interest in specific Trust property.
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(ix)
Under § 3808(a) and (b) of the Trust Act, the Trust may not be terminated or
revoked by any Certificateholder, and the dissolution, termination or bankruptcy
of any Certificateholder shall not result in the termination or dissolution of
the Trust, except to the extent otherwise provided in the Trust Agreement.
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(q)
The Underwriters shall have received an opinion of counsel to CFS-SunTech, dated
the Closing Date and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, to the effect that:
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(i)
CFS-SunTech has been duly formed and is validly existing as a limited liability
company in good standing under the laws of its jurisdiction of organization,
with full power and authority to own its properties and conduct its business,
and is duly qualified to transact business and is in good standing in each
jurisdiction in which its failure to qualify would have a material adverse
effect upon transactions contemplated by the Basic Documents and its business or
the ownership of its property.
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(ii)
The Sub-Servicing Agreement, the Custodian Agreements, the Seller Origination
Agreement and the Origination Agreement have been duly authorized, executed and
delivered by CFS-SunTech.
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(iii)
The Sub-Servicing Agreement, the Custodian Agreements, the Seller Origination
Agreement and the Origination Agreement are the legal, valid and binding
obligations of CFS-SunTech enforceable against CFS-SunTech in accordance with
its terms.
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(iv)
Neither the execution, delivery and performance by CFS-SunTech of the
Sub-Servicing Agreement, the Custodian Agreements, the Seller Origination
Agreement or the Origination Agreement, nor the consummation by CFS-SunTech of
the transactions contemplated thereby, will conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of CFS-SunTech, pursuant to the terms of the formation
documents of CFS-SunTech or any statute, rule, regulation or order of any
governmental agency or body, or any court having jurisdiction over CFS-SunTech
or its properties, or any agreement or instrument known to such counsel after
due investigation to which CFS-SunTech is a party or by which CFS-SunTech or any
of its properties is bound.
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(v)
No authorization, license, approval, consent or order of, or filing with, any
court or governmental agency or authority is necessary in connection with the
execution, delivery and performance of the Sub-Servicing Agreement, the
Custodian Agreements, the Seller Origination Agreement or the Origination
Agreement.
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(vi)
There are no legal or governmental proceedings known to such counsel to be
pending to which CFS-SunTech is a party or of which any property of CFS-SunTech
is the subject, nor are any such proceedings known to such counsel to be
threatened or contemplated by governmental authorities or threatened by others
(i) asserting the invalidity of all or any part of the Sub-Servicing Agreement,
the Custodian Agreements, the Seller Origination Agreement or the Origination
Agreement or (ii) that could materially adversely affect the ability of
CFS-SunTech to perform its obligations under the Sub-Servicing Agreement, the
Custodian Agreements, the Seller Origination Agreement or the Origination
Agreement.
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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.
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(r)
The Underwriters shall have received an opinion of counsel to the Investment
Agreement Provider, dated the Closing Date, in form and substance satisfactory
to the Underwriters and their counsel.
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(s)
The Underwriters shall have received a certificate dated the Closing Date of the
Sponsor, executed by any two of the Chairman of the Board, the President, any
Executive Vice President, Senior Vice President or Vice President, the
Treasurer, any Assistant Treasurer, the Secretary, the principal financial
officer or the principal accounting officer of the Sponsor, in which such
officer shall state that, (i) the representations and warranties of the Sponsor
contained in this Agreement and the other Basic Documents to which it is a party
are true and correct in all material respects, (ii) that the Sponsor has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under such agreements at or prior to the Closing Date,
and (iii) except as may be disclosed in the Prospectus or in such certificate,
no material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or properties of the
Sponsor has occurred.
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(t)
The Underwriters shall have received a certificate dated the Closing Date of
Collegiate Funding, executed by any two of the Chairman of the Board, the
President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the Secretary, the principal
financial officer or the principal accounting officer of Collegiate Funding, in
which such officer shall state that, (i) the representations and warranties of
Collegiate Funding contained in this Agreement are true and correct in all
material respects, (ii) that Collegiate Funding has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied under such
agreements at or prior to the Closing Date, and (iii) except as may be disclosed
in the Prospectus or in such certificate, no material adverse change, or any
development involving a prospective material adverse change, in or affecting
particularly the business or properties of Collegiate Funding has occurred.
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(u)
The Underwriters shall have received a certificate dated the Closing Date of
each of the Master Servicer and the Administrator, executed by any two of the
Chairman of the Board, the President, any Executive Vice President, Senior Vice
President or Vice President, the Treasurer, any Assistant Treasurer, the
Secretary, the principal financial officer or the principal accounting officer
of the Master Servicer and the Administrator, as applicable, in which such
officer shall state that (i) the representations and warranties of the Master
Servicer and the Administrator, as applicable, contained in the Basic Documents
to which it is a party are true and correct in all material respects, (ii) that
the Master Servicer and the Administrator, as applicable, have complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
under such agreements at or prior to the Closing Date and (iii) except as may be
disclosed in the Prospectus or in such certificate, no material adverse change,
or any development involving a prospective material adverse change, in or
affecting particularly the business or properties of the Master Servicer and the
Administrator, as applicable, has occurred.
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(v)
The Underwriters shall have received a certificate of a responsible officer of
CFS-SunTech, dated the Closing Date, in form and substance satisfactory to the
Underwriters and their counsel.
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(w)
The Underwriters shall have received a certificate of a responsible officer of
the Auction Agent, dated the Closing Date, in form and substance satisfactory to
the Underwriters and their counsel.
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(x)
The Underwriters shall have received evidence satisfactory to it and counsel for
the Underwriters that, on or before the Closing Date, the Sponsor Financing
Statements, the Seller Financing Statements and the Trust Financing Statements
shall have been submitted for filing in the appropriate filing offices.
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(y)
The Underwriters shall have received written evidence satisfactory to them and
counsel for the Underwriters that the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, the Class A-5 Notes, the Class A-6 Notes
and the Class A-7 Notes shall each be rated "Aaa" by Xxxxx'x and "AAA" by S&P,
and the Class B-1 Notes and Class B-2 Notes shall be rated at least "A2" by
Xxxxx'x and at least "A" by S&P, and neither corporation shall have placed the
Notes under surveillance or review with possible negative implications.
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(z)
The Underwriters shall have received certificates dated the Closing Date from
each Guarantee Agency, satisfactory to the Underwriters and counsel for the
Underwriters, certifying as to certain information with respect to each such
Guarantee Agency contained in the Prospectus.
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The
Sponsor will provide or cause to be provided to the Underwriters such conformed
copies of such of the foregoing opinions, certificates, letters and documents as
the Underwriters shall reasonably request.
7. Indemnification and
Contribution.
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(a)
The Sponsor and Collegiate Funding, jointly and severally, agree to indemnify
and hold harmless the Underwriters and each person, if any, who controls the
Underwriters within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and the respective affiliates, officers,
directors and employees of the Underwriters and each such person, against any
losses, claims, damages or liabilities, joint or several, to which the
Underwriters or such controlling person and the respective affiliates, officers,
directors and employees of the Underwriters and each such person may become
subject, under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or arising out of or based
upon the omission or alleged omission to state therein a material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading; except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to the Underwriters
furnished to the Sponsor in writing by the Underwriters expressly for use
therein; provided, however, that the indemnification contained in this paragraph
7(a) with respect to any Preliminary Prospectus shall not inure to the benefit
of an Underwriter (or to the benefit of any person controlling an Underwriter)
on account of any such loss, claim, damage or liability arising from the sale of
the of Notes by an Underwriter to any person if the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact contained in
such Preliminary Prospectus was corrected in the Prospectus and such Underwriter
sold Notes to that person without sending or giving at or prior to the written
confirmation of such sale, a copy of the Prospectus (as then amended or
supplemented but excluding documents incorporated by reference therein) if
Collegiate Funding has previously furnished sufficient copies thereof to such
Underwriter at a time reasonably prior to the date such Notes are sold to such
person.
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(b)
Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the Sponsor and Collegiate Funding and their directors, officers and
each Person, if any, who controls the Sponsor or Collegiate Funding within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Sponsor to the
Underwriters set forth in paragraph 7(a) above, but only with reference to
information relating to such Underwriter furnished to the Sponsor in writing by
such Underwriter expressly for use in any Preliminary Prospectus or the
Prospectus or any amendments or supplements thereto. The written information
furnished by the Underwriters to the Sponsor consists solely of the information
set forth in the second paragraph (excluding the first sentence thereof), the
first sentence of the fifth paragraph and the eighth paragraph under the heading
"Plan of Distribution" in the Prospectus Supplement (the "Underwriters'
Information").
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(c)
In case any proceeding (including any governmental investigation) shall be
instituted involving any Person in respect of which indemnity may be sought
pursuant to Section 7(a) or 7(b) above, such Person (the "Indemnified Party")
shall promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Party") in writing; provided, however, that the failure to notify
the Indemnifying Party shall not relieve the Indemnifying Party from any
liability which it may have under this Section 7 except to the extent that it
has been materially prejudiced by such failure and, provided further, that the
failure to notify the Indemnifying Party shall not relieve the Indemnifying
Party from any liability which it may have to the Indemnified Party otherwise
than under this Section 7. The Indemnifying Party, upon request of the
Indemnified Party, shall retain counsel satisfactory to the Indemnified Party to
represent the Indemnified Party and any others the Indemnifying Party may
designate in such proceeding and shall pay the reasonable fees and disbursements
of such counsel related to such proceeding. In any such proceeding, an
Indemnified Party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel, (ii) the named parties to any such
proceeding (including any impleaded parties) include both the Indemnifying Party
and the Indemnified Party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them, or (iii) the Indemnifying Party fails to retain counsel as provided in the
preceding sentence. It is understood that the Indemnifying Party shall not, in
respect of the legal expenses of any Indemnified Party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such Indemnified Parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Underwriters, in the case of parties indemnified pursuant to
Section 7(a) above, and by the Sponsor or Collegiate Funding, in the case of
parties indemnified pursuant to Section 7(b) above. The Indemnifying Party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party
from and against any loss or liability by reason of such settlement or judgment.
No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened proceeding
in respect of which any Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such settlement (i) does not include a statement as to or admission of, fault,
culpability or a failure to act by or on behalf of any such Indemnified Party,
and (ii) includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such proceeding.
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(d)
To the extent the indemnification provided for in Section 7(a) or 7(b) above is
unavailable to an Indemnified Party or is insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying Party
under such paragraph, in lieu of indemnifying such Indemnified Party thereunder,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Sponsor and
Collegiate Funding on the one hand and an Underwriter on the other hand from the
offering of the Notes or (ii) if the allocation provided by clause 7(d)(i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 7(d)(i) above but
also the relative fault of the Sponsor or Collegiate Funding on the one hand and
of an Underwriter on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Sponsor and Collegiate Funding on the one hand and an Underwriter on the
other hand in connection with the offering of the Notes shall be deemed to be in
the same respective proportions as the net proceeds from the offering of the
Notes (before deducting expenses) received by the Sponsor and the total
discounts and commissions received by such Underwriter, in each case as set
forth in the Prospectus, bear to the aggregate offering price of the Notes. The
relative fault of the Sponsor and Collegiate Funding on the one hand and of an
Underwriter on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Sponsor, Collegiate Funding or by an Underwriter and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
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(e)
The Sponsor, Collegiate Funding and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 7(d) above. The
amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages and liabilities referred to in Section 7(d) shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount of its underwriting compensation. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.
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8. Default of Underwriter. If, at the
Closing, any one or more of the Underwriters shall fail or refuse to purchase
Securities that it has or they have agreed to purchase hereunder on such date,
and the aggregate principal amount of Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is ten
percent or less of the aggregate principal amount of Securities to be purchased
on such date, the other Underwriters may make arrangements satisfactory to the
Underwriters for the purchase of such Securities by other persons (who may
include one or more of the non-defaulting Underwriters, including the
Underwriters), but if no such arrangements are made by the Closing Date, the
other Underwriters shall be obligated severally in the proportions that the
principal amount of Securities set forth opposite their respective names in
Schedule II hereto bears to the aggregate principal amount of Securities set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Underwriters may specify, to purchase the Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date. If, at the Closing, any Underwriter or Underwriters
shall fail or refuse to purchase Securities and the aggregate principal amount
of Securities with respect to which such default occurs is more than ten percent
of the aggregate principal amount of Securities to be purchased, and
arrangements satisfactory to the Underwriters and the Sponsor for the purchase
of such Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Sponsor, except as provided in Section 10. In any such case,
either the Underwriters or the Sponsor shall have the right to postpone the
Closing, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 8. Any action taken under this Section 8 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
9. Computational Materials.
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(a)
It is understood that the Underwriters may prepare and provide to prospective
investors certain Computational Materials (as defined below) in connection with
the offering of the Notes, subject to the following conditions:
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(i)
The Underwriters shall comply with all applicable laws and regulations in
connection with the use of Computational Materials including the No-Action
Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx Acceptance
Corporation I, Xxxxxx, Peabody & Co. Incorporated and Xxxxxx Structured Asset
Corporation, as made applicable to other issuers and underwriters by the
Commission in response to the request of the Public Securities Association dated
May 24, 1994, and the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (collectively, the "Xxxxxx/PSA
Letters").
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(ii)
As used herein, "Computational Materials" and the term "ABS Term Sheets" shall
have the meanings given such terms in the Xxxxxx/PSA Letters, but shall include
only those Computational Materials that have been prepared or delivered to
prospective investors by or at the direction of an Underwriter.
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(iii)
Each Underwriter shall provide the Sponsor with representative forms of all
Computational Materials prior to their first use, to the extent such forms have
not previously been approved by the Sponsor for use by such Underwriter. Each
Underwriter shall provide to the Sponsor, for filing on Form 8-K as provided in
Section 9(b), copies of all Computational Materials that are to be filed with
the Commission pursuant to the Xxxxxx/PSA Letters. Each Underwriter may provide
copies of the foregoing in a consolidated or aggregated form. All Computational
Materials described in this subsection (a)(iii) must be provided to the Sponsor
not later than 10:00 a.m., New York time, one business day before filing thereof
is required pursuant to the terms of this Agreement.
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(iv)
If an Underwriter does not provide the Computational Materials to the Sponsor
pursuant to subsection (a)(iii) above, such Underwriter shall be deemed to have
represented, as of the applicable Closing Date, that it did not provide any
prospective investors with any information in written or electronic form in
connection with the offering of the Notes that is required to be filed with the
Commission in accordance with the Xxxxxx/PSA Letters.
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(v)
In the event of any delay in the delivery by an Underwriter to the Sponsor of
all Computational Materials required to be delivered in accordance with
subsection (a)(iii) above, the Sponsor shall have the right to delay the release
of the Prospectus to investors or to such Underwriter, to delay the Closing Date
and to take other appropriate actions in each case as necessary in order to
allow the Sponsor to comply with its agreement set forth in Section 9(b) to file
the Computational Materials by the time specified therein.
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(b)
The Sponsor shall file the Computational Materials (if any) provided to it by
the Underwriter under Section 9(a)(iii) with the Commission pursuant to a
Current Report on Form 8-K no later than 5:30 p.m., New York time, on the date
required pursuant to the Xxxxxx/PSA Letters. |
10. Survival of Representations and
Obligations. The respective indemnities, agreements, representations,
warranties and other statements of the Sponsor and Collegiate Funding and their
respective officers and of the Underwriters set forth in or made pursuant to
this Agreement or contained in certificates of officers of the Sponsor or
Collegiate Funding submitted pursuant hereto shall remain operative and in full
force and effect, regardless of any investigation or statement as to the results
thereof, made by or on behalf of the Underwriters, the Sponsor, Collegiate
Funding or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Notes. If
for any reason the purchase of the Notes by the Underwriters is not consummated,
the Sponsor shall remain responsible for the expenses to be paid or reimbursed
by the Sponsor pursuant to Section 5(k) hereof and the respective obligations of
the Sponsor, Collegiate Funding and the Underwriters pursuant to Section 7 shall
remain in effect. If for any reason the purchase of the Notes by the
Underwriters is not consummated (other than because of a failure to satisfy the
conditions set forth in items (iii), (iv) and (v) of Section 6(c) or a default
by the Underwriters pursuant to Section 8), the Sponsor will reimburse the
Underwriters for all out-of-pocket expenses reasonably incurred by it in
connection with the offering of the Notes.
11. Notices. Any written request, demand,
authorization, direction, notice, consent or waiver shall be personally
delivered or mailed certified mail, return receipt requested (or in the form of
telex or facsimile notice, followed by written notice as aforesaid) and shall be
deemed to have been duly given upon receipt, if sent to the Underwriters, when
delivered to the Underwriters at X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxx (Fax # (000)
000-0000), Banc of America Securities LLC, 000 X. Xxxxx Xxxxxx, 12th Floor,
NC1-005-12-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxxxxxx X. Xxxxx
(Fax # (000) 000-0000) and Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx (Fax # (000)
000-000-0000) and if sent to the Sponsor when delivered to 000 Xxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxxxxxx, General Counsel (Fax # (000) 000-0000).
12. Successors. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any fight or obligations
hereunder.
13. Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
Agreement.
14. Applicable Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New York
without regard to the choice of law provisions thereof. The Sponsor and
Collegiate Funding hereby submit to the non-exclusive jurisdiction of the
federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
If
the foregoing is in accordance with your understanding of our agreement, kindly
sign and return to us one of the counterparts hereof, whereupon it will become a
binding agreement among the Sponsor and the Underwriters in accordance with its
terms.
| |
Very truly yours,
COLLEGIATE FUNDING OF DELAWARE, L.L.C.
By
Name
Title
COLLEGIATE FUNDING SERVICES, L.L.C.
By
Name
Title
|
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the date
first written above.
BANC OF AMERICA SECURITIES LLC
By
Name
Title
X.X. XXXXXX SECURITIES INC.
By
Name
Title
|
CITIGROUP GLOBAL MARKETS INC.
By
Name
Title
|
SCHEDULE I
OFFICES
For the Seller:
For the Sponsor:
For the Trust: |
Delaware Secretary of State
Delaware Secretary of State
Delaware Secretary of State |
SCHEDULE II
Initial
Initial Initial Principal Initial
Principal Principal Balance of Principal
Balance of Balance of Class A-3 Balance of
Underwriter Class A-1 Notes Class A-2 Notes Notes Class A-4 Notes
Banc of America Securities LLC $99,600,000 $100,000,000 $97,000,000 $ -0-
X.X. Xxxxxx Securities Inc. $99,600,000 $100,000,000 $ -0- $97,000,000
Citigroup Global Markets Inc. $49,800,000 $ 50,000,000 $ -0- $ -0-
Initial
Initial Initial Principal Initial Initial
Principal Principal Balance of Principal Principal
Balance of Balance of Class A-7 Balance of Balance of
Underwriter Class A-5 Notes Class A-6 Notes Notes Class B-1 Notes Class B-2 Notes
Banc of America Securities LLC $97,000,000 $ -0- $ -0- $26,000,000 $ -0-
X.X. Xxxxxx Securities Inc. $ -0- $97,000,000 $ -0- $ -0- $26,000,000
Citigroup Global Markets Inc. $ -0- $ -0- $97,000,000 $ -0- $ -0-
SCHEDULE III
Security Original Principal Balance $ Price %
Class A-1 Notes $249,000,000 0.200%
Class A-2 Notes 250,000,000 0.340%
Class A-3 Notes 97,000,000 0.290%
Class A-4 Notes 97,000,000 0.290%
Class A-5 Notes 97,000,000 0.290%
Class A-6 Notes 97,000,000 0.290%
Class A-7 Notes 97,000,000 0.290%
Class B-1 Notes 26,000,000 0.375%
Class B-2 Notes 26,000,000 0.375%
--------------
Total $1,036,000,000
Total Purchase Price: $1,033,050,500
