College Loan Corporation Trust I
$1,300,000,000
Student Loan Asset-Backed Notes
Series 2003-2
UNDERWRITING AGREEMENT
October 3, 2003
UBS Securities LLC
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Citigroup Global Markets Inc.
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
College Loan
Corporation Trust I, a Delaware statutory trust (the "Company") proposes to
sell to UBS Securities LLC, Citigroup Global Markets Inc. and ▇▇▇▇▇▇▇, ▇▇▇▇▇
& Co. (the "Underwriters"), pursuant to the terms of this Underwriting
Agreement, $1,300,000,000 aggregate principal amount of the Company’s
Student Loan Asset-Backed Notes, Series 2003-2 (the "Notes") in the classes and
initial principal amounts set forth on Schedule A hereto. Deutsche Bank
Trust Company Americas, a national banking association, will act as eligible
lender trustee on behalf of the Company (the "Eligible Lender Trustee"). The
Notes will be issued under an Amended and Restated Indenture of Trust, dated as
of October 1, 2003 (as previously supplemented and amended, the "Base
Indenture"), and a related Fourth Supplemental Indenture of Trust, dated as of
October 1, 2003 (collectively with the Base Indenture, the "Indenture")
among the Company, the Eligible Lender Trustee and Deutsche Bank Trust Company
Americas, a New York banking corporation, as indenture trustee (the "Trustee").
Upon issuance, the Notes will be secured by, among other things, Financed
Student Loans (as defined in the Indenture) pledged to the Trustee and described
in the Prospectus (as defined in Section 3 below). The Financed Student
Loans will initially be serviced by ACS Education Services, Inc. ("ACS")
(formerly known as AFSA Data Corporation), Great Lakes Educational Services,
Inc. ("GLESI"), Nelnet, Inc. ("Nelnet") and Pennsylvania Higher Education
Assistance Agency ("PHEAA") (each a "Servicer" and collectively, the
"Servicers") pursuant to separate servicing agreements (each a "Servicing
Agreement" and collectively, the "Servicing Agreements"), between the applicable
Servicer and the Company.
Certain
of the Financed Student Loans were and will be originated by Bank One, National
Association, as eligible lender trustee (the "College Loan Eligible Lender
Trustee") for College Loan Corporation ("College Loan"), a
California corporation and the transferor to the Company. The Financed Student
Loans so originated will be sold to the Eligible Lender Trustee (as legal owner)
and the Company (as beneficial owner) pursuant to an Amended and Restated FFELP
Loan Purchase Agreement dated as of June 1, 2002 (the "Student Loan
Purchase Agreement") among College Loan, the College Loan Eligible Lender
Trustee, the Company and the Eligible Lender Trustee.
Administrative
services for the Company will be performed by College Loan (in its capacity as
administrator, the "Administrator"). Such services will be provided
pursuant to an Administration Agreement dated as of March 1, 2002 (the
"Administration Agreement") among the Company, Wilmington Trust
Company, as Delaware Trustee (the "Delaware Trustee"), the Trustee,
the Eligible Lender Trustee and the Administrator.
This
Agreement, the Indenture, the Student Loan Purchase Agreement, the Servicing
Agreements, the Administration Agreement, the Custody Agreements among the
applicable Servicer, the Issuer, the Eligible Lender Trustee and the Trustee,
the Amended and Restated Trust Agreement dated as of March 1, 2002 between
College Loan Special Purpose Corporation ("SPC") and the Delaware
Trustee and the FFELP Loan Purchase Agreement dated as of October 1, 2003
(the "Warehouse Student Loan Purchase Agreement") among College Loan
Warehouse LLC (the "Warehouse Seller"), Bank One, National
Association, as eligible lender trustee for the Warehouse Seller, College Loan
and the College Loan Eligible Lender Trustee, are collectively referred to
herein as the "Basic Documents."
Capitalized
terms used herein without definition shall have the meanings ascribed to them in
the Indenture or the Prospectus.
The
Company wishes to confirm as follows this agreement with the Underwriters in
connection with the purchase and resale of the Notes.
1. Agreements To Sell, Purchase and Resell.
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(a) The Company hereby agrees, subject to all the
terms and conditions set forth herein, to sell to each of the Underwriters and,
upon the basis of the representations, warranties and agreements of the Company
herein contained and subject to all the terms and conditions set forth herein,
each of the Underwriters severally and not jointly agrees to purchase from the
Company, such principal amount of each Series of the Notes at such respective
purchase prices as are set forth next to the name of each Underwriter on
Schedule A hereto. |
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(b)
It is understood that the Underwriters propose to offer the Notes for sale to
the public (which may include selected dealers) as set forth in the Prospectus. |
2. Delivery of the Notes and Payment
Therefor. Delivery to the Underwriters of and payment for the Notes shall be
made at the office of Stroock & Stroock & ▇▇▇▇▇ LLP, Miami, Florida, at 10:00
a.m., Eastern Time, on October 9, 2003 (the "Closing Date"). The place of such
closing and the Closing Date may be varied by agreement between the Underwriters
and the Company.
The
Notes will be delivered to the Underwriters against payment of the purchase
price therefor to the Company in Federal Funds, by wire transfer to an account
at a bank acceptable to the Underwriters, or such other form of payment as to
which the parties may agree. Unless otherwise agreed to by the Company and the
Underwriters, each Series of Notes will be evidenced by a single global security
in definitive form deposited with the Trustee as custodian for DTC and/or by
additional definitive securities, and will be registered, in the case of the
global Series of Notes, in the name of Cede & Co. as nominee of The
Depository Trust Company ("DTC"), and in the other cases, in such
names and in such denominations as the Underwriters shall request prior to
1:00 p.m., New York City time, no later than the business day
preceding the Closing Date. The Notes to be delivered to the Underwriters shall
be made available to the Underwriters in New York, New York, for
inspection and packaging not later than 9:30 a.m., New York City time,
on the business day next preceding the Closing Date.
3. Representations and Warranties of the
Company. The Company represents and warrants to each of the Underwriters
that:
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(a)
A registration statement on Form S-3 (No. 333-102791), including a prospectus
and such amendments thereto as may have been required to the date hereof,
relating to the Notes and the offering thereof from time to time in accordance
with Rule 415 under the Securities Act of 1933, as amended (the "Act"), has been
filed with the Securities and Exchange Commission (the "SEC" or the
"Commission") and such registration statement, as amended, has become effective;
such registration statement, as amended, and the prospectus relating to the sale
of the Notes offered thereby constituting a part thereof, as from time to time
amended or supplemented (including the base prospectus, any prospectus
supplement filed with the Commission pursuant to Rule 424(b) under the Act, the
information deemed to be a part thereof pursuant to Rule 430A(b) under the Act,
and the information incorporated by reference therein) are respectively referred
to herein as the "Registration Statement" and the "Prospectus" respectively; and
the conditions to the use of a registration statement on Form S-3 under the Act,
as set forth in the General Instructions to Form S-3, and the conditions of Rule
415 under the Act, have been satisfied with respect to the Registration
Statement.
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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 of the SEC
(the "Rules and Regulations") and the Trust Indenture Act of 1939, as amended,
and the rules and regulations thereunder (the "Trust Indenture Act"), and,
except with respect to information omitted pursuant to Rule 430A of the Act, did
not include any untrue statement of a material fact or, in the case of the
Registration Statement, omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and, in the
case of the Prospectus, omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and on the date of this Agreement and on the Closing Date,
the Registration Statement and the Prospectus will conform in all respects to
the requirements of the Act, the Rules and Regulations and the Trust Indenture
Act, and neither of such documents included or will include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that the foregoing does not apply to statements in or omissions from
the Registration Statement or the Prospectus based upon written information
furnished to the Company by the Underwriters, specifically for use therein.
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(c) The Commission has not issued and, to the best
knowledge of the Company, is not threatening to issue any order preventing or
suspending the use of the Registration Statement.
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(d)
As of the Closing Date, each consent, approval, authorization or order of, or
filing with, any court or governmental agency or body which is required to be
obtained or made by the Company or its affiliates for the consummation of the
transactions contemplated by this Agreement shall have been obtained, except as
otherwise provided in the Basic Documents.
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(e)
The Indenture has been duly and validly authorized by the Company and, upon its
execution and delivery by the Company and assuming due authorization, execution
and delivery by the Trustee, will be a valid and binding agreement of the
Company, enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights generally and conform in all material respects to the
description thereof in the Prospectus. The Indenture has been duly qualified
under the Trust Indenture Act with respect to the Notes.
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(f)
The Notes have been duly authorized by the Company and the Notes to be issued on
the Closing Date, when executed by the Company and authenticated by the Trustee
in accordance with the Indenture, and delivered to the Underwriters against
payment therefor in accordance with the terms hereof, will have been validly
issued and delivered, and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in accordance
with their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance or other similar laws relating to
or affecting creditors' rights generally and court decisions with respect
thereto, and the Notes will conform in all material respects to the description
thereof in the Prospectus.
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(g)
The Company is a statutory trust duly organized, validly existing and in good
standing under the laws of the State of Delaware with full power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus Supplement and as conducted on the date hereof, and
is duly registered and qualified to conduct its business and is in good standing
in each jurisdiction or place where the nature of its properties or the conduct
of its business requires such registration or qualification, except where the
failure so to register or qualify does not have a material adverse effect on the
condition (financial or other), business, prospects, properties, net worth or
results of operations of the Company.
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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
Company or any of its affiliates any brokerage or finder's fee or other fee or
commission as a result of any of the transactions contemplated by this
Agreement.
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(i)
There are no legal or governmental proceedings pending or threatened or, to the
knowledge of the Company contemplated, against the Company, or to which the
Company or any of its properties is subject, that are not disclosed in the
Prospectus and which, if adversely decided, would individually or in the
aggregate have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company, or would
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement and the other Basic Documents or otherwise
materially affect the issuance of the Notes or the consummation of the
transactions contemplated hereby or by the Basic Documents.
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(j)
Neither the offer, sale or delivery of the Notes by the Company nor the
execution, delivery or performance of this Agreement or the Basic Documents by
the Company, nor the consummation by the Company of the transactions
contemplated hereby or thereby (i) requires or will require any consent,
approval, authorization or other order of, or registration or filing with, any
court, regulatory body, administrative agency or other governmental body, agency
or official (except for compliance with the securities or Blue Sky laws of
various jurisdictions, the qualification of the Indenture under the Trust
Indenture Act and such other consents, approvals or authorizations as shall have
been obtained prior to the Closing Date) or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the
organizational documents of the Company; or (ii) conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under, in any
material respect, any agreement, indenture, lease or other instrument to which
the Company is a party or by which the Company or any of its respective
properties may be bound, or violates or will violate in any material respect any
statute, law, regulation or filing or judgment, injunction, order or decree
applicable to the Company or any of its respective properties, or will result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to the terms of any agreement or instrument to
which it is a party or by which it may be bound or to which any of its
properties is subject other than as contemplated by the Basic Documents.
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(k)
The Company has all requisite power and authority to execute, deliver and
perform its obligations under this Agreement and the other Basic Documents to
which it is a party; the execution and delivery of, and the performance by the
Company of its obligations under this Agreement and the other Basic Documents to
which it is a party have been duly and validly authorized by the Company and
this Agreement and the other Basic Documents have been duly executed and
delivered by the Company and constitute the valid and legally binding agreements
of the Company, enforceable against the Company in accordance with their
respective terms, except as the enforcement hereof and thereof may be limited by
bankruptcy, insolvency, moratorium, fraudulent conveyance or other similar laws
relating to or affecting creditors' rights generally and court decisions with
respect thereto and subject to the applicability of general principles of
equity, and except as rights to indemnity and contribution hereunder and
thereunder may be limited by federal or state securities laws or principles of
public policy.
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(l)
The assignment and delivery of Financed Student Loans by College Loan and the
College Loan Eligible Lender Trustee to the Company and the Eligible Lender
Trustee, and the assignment of the Financed Student Loans by the Company and the
Eligible Lender Trustee to the Trustee pursuant to the Indenture, will vest in
the Trustee, for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
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(m)
The Company is not, nor as a result of the issuance and sale of the Notes as
contemplated hereunder will it become, subject to registration as an "investment
company" under the Investment Company Act of 1940, as amended.
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(n)
The representations and warranties made by the Company in any Basic Document to
which the Company is a party and made in any Officer's Certificate of the
Company will be true and correct at the time made and on and as of the
applicable Closing Date.
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(o)
Since the date of the Prospectus, no material adverse change or any development
involving a prospective material adverse change in, or affecting particularly
the business or properties of, the Company has occurred.
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4. Agreements of the Company. The Company agrees
with each of the Underwriters as follows:
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(a)
The Company will prepare a supplement to the Prospectus setting forth the amount
of the Notes covered thereby and the terms thereof not otherwise specified in
the Prospectus, the price at which the Notes are to be purchased by the
Underwriters, either the initial public offering price or the method by which
the price at which the Notes are to be sold will be determined, the selling
concessions and reallowances, if any, and such other information as the
Underwriters and the Company deem appropriate in connection with the offering of
the Notes, and the Company will timely file such supplement to the prospectus
with the SEC pursuant to Rule 424(b) under the Act, but the Company will not
file any amendments to the Registration Statement as in effect with respect to
the Notes or any amendments or supplements to the Prospectus, unless it shall
first have delivered copies of such amendments or supplements to the
Underwriters, with reasonable opportunity to comment on such proposed amendment
or supplement or if the Underwriters shall have reasonably objected thereto
promptly after receipt thereof; the Company will immediately advise the
Underwriters or the Underwriters' counsel (i) when notice is received from the
SEC that any post-effective amendment to the Registration Statement has become
or will become effective; and (ii) of any order or communication suspending or
preventing, or threatening to suspend or prevent, the offer and sale of the
Notes or of any proceedings or examinations that may lead to such an order or
communication, whether by or of the SEC or any authority administering any state
securities or Blue Sky law, as soon as the Company is advised thereof, and will
use its best efforts to prevent the issuance of any such order or communication
and to obtain as soon as possible its lifting, if issued.
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(b)
If, at any time when the Prospectus relating to the Notes is required to be
delivered under the Act, any event occurs as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or
if it is necessary at any time to amend or supplement the Prospectus to comply
with the Act or the Rules and Regulations, the Company promptly will notify each
of the Underwriters of such event and will promptly prepare and file with the
SEC, at its own expense, an amendment or supplement to such Prospectus that will
correct such statement or omission or an amendment that will effect such
compliance. Neither the Underwriters' consent to, nor the Underwriters' delivery
of, any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6 hereof.
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(c)
The Company will immediately inform the Underwriters (i) of the receipt by the
Company of any communication from the SEC or any state securities authority
concerning the offering or sale of the Notes; and (ii) of the commencement of
any lawsuit or proceeding to which the Company is a party relating to the
offering or sale of the Notes.
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(d)
The Company will furnish to the Underwriters, without charge, copies of the
Registration Statement (including all documents and exhibits thereto or
incorporated by reference therein), the Prospectus, and all amendments and
supplements to such documents relating to the Notes, in each case in such
quantities as the Underwriters may reasonably request.
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(e)
No amendment or supplement will be made to the Registration Statement or
Prospectus which the Underwriters shall not previously have been advised or to
which it shall reasonably object after being so advised.
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(f)
The Company 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 Company 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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(g)
The Company 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 Company.
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(h)
To the extent, if any, that the rating or ratings provided with respect to the
Notes by the rating agency or agencies that initially rate the Notes is
conditional upon the furnishing of documents or the taking of any other actions
by the Company, the Company shall cause to be furnished such documents and such
other actions to be taken.
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(i)
So long as any of the Notes are outstanding, the Company will furnish to the
Underwriters (i) as soon as available, a copy of each document relating to the
Notes required to be filed with the SEC pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), or any order of the SEC thereunder;
and (ii) such other information concerning the Company as the Underwriters may
request from time to time.
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(j)
If this Agreement shall terminate or shall be terminated after execution and
delivery pursuant to any provisions hereof (otherwise than by notice given by
the Underwriters terminating this Agreement pursuant to Section 8 or Section 9
hereof) or if this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company to comply with the terms or
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
the Underwriters for all out of pocket expenses (including fees and expenses of
their counsel) reasonably incurred by it in connection herewith, but without any
further obligation on the part of the Company for loss of profits or otherwise.
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(k)
The net proceeds from the sale of the Notes hereunder will be applied
substantially in accordance with the description set forth in the Prospectus.
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(l)
Except as stated in this Agreement and in the Prospectus, the Company 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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(m)
On or before the Closing Date, the Company shall mark its accounting and other
records, if any, relating to the Financed Student Loans and shall cause each
Servicer to mark their respective computer records relating to the Financed
Student Loans to show the absolute ownership by the Eligible Lender Trustee, as
eligible lender of, and the interest of the Company in, the Financed Student
Loans, and the Company shall not take, or shall permit any other person to take,
any action inconsistent with the ownership of, and the interest of the Company
in, the Financed Student Loans, other than as permitted by the Basic Documents.
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(n)
For the period beginning on the date of this Agreement and ending 90 days
hereafter, none of the Company and any entity affiliated, directly or
indirectly, with the Company will, without the prior written notice to the
Underwriters, offer to sell or sell notes (other than the Notes) collateralized
by FFELP Loans.
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(o)
If, at the time the Registration Statement became effective, any information
shall have been omitted therefrom in reliance upon Rule 430A under the 1933 Act,
then, immediately following the execution of this Agreement, the Company will
prepare, and file or transmit for filing with the Commission in accordance with
such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended
Prospectus containing all information so omitted.
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(p)
As soon as practicable, but not later than 16 months after the date of this
Agreement, the Company will make generally available to its securityholders an
earnings statement covering a period of at least 12 months beginning after the
later of (i) the effective date of the Registration Statement; (ii) the
effective date of the most recent post-effective amendment to the Registration
Statement to become effective prior to the date of this Agreement; and (iii) the
date of the Company's most recent Annual Report or Form 10-K filed with the
Commission prior to the date of this Agreement, which will satisfy the
provisions of Section 11(a) of the Act.
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5. Indemnification and Contribution.
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(a)
College Loan agrees to indemnify and hold harmless each of the Underwriters and
each person, if any, who controls an Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, liabilities and expenses (or actions in respect
thereof) arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
Prospectus, or in any amendment or supplement thereto, or any preliminary
prospectus, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission which
has been made therein or omitted therefrom in reliance upon and in conformity
with the information relating to an Underwriter furnished in writing to the
Company or College Loan by such Underwriter expressly for use therein, it being
understood that the only such information furnished by any Underwriter consists
of the information described as such in Section 10 of this Agreement; provided,
however, that the indemnification contained in this paragraph (a) with respect
to any preliminary prospectus shall not inure to the benefit of an Underwriter
(or to the benefit of any person controlling an Underwriter) on account of any
such loss, claim, damage, liability or expense arising from the sale of the of
Notes by an Underwriter to any person if the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in such
preliminary prospectus was corrected in the final Prospectus and such
Underwriter sold Notes to that person without sending or giving at or prior to
the written confirmation of such sale, a copy of the final Prospectus (as then
amended or supplemented but excluding documents incorporated by reference
therein) if the Company has previously furnished sufficient copies thereof to
such Underwriter at a time reasonably prior to the date such Notes are sold to
such person. The foregoing indemnity agreement shall be in addition to any
liability which College Loan or the Company may otherwise have.
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(b)
If any action, suit or proceeding shall be brought against an Underwriter or any
person controlling an Underwriter in respect of which indemnity may be sought
against College Loan, such Underwriter or such controlling person shall promptly
notify the parties against whom indemnification is being sought (the
"indemnifying parties"), but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party, except to the extent that the indemnifying party is materially prejudiced
by such omission. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party). The applicable Underwriter or any such
controlling person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless (i) the indemnifying parties have agreed in
writing to pay such fees and expenses; (ii) the indemnifying parties have failed
to assume the defense and employ counsel; or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both the
Underwriter or such controlling person and the indemnifying parties and the
Underwriter or such controlling person shall have been advised by its counsel
that there may be one or more legal defenses available to it which are different
from or additional to or in conflict with those available to the indemnifying
parties and in the reasonable judgment of such counsel it is advisable for the
Underwriter or such controlling person to employ separate counsel (in which case
the indemnifying party shall not have the right to assume the defense of such
action, suit or proceeding on behalf of the Underwriter or such controlling
person). It is understood, however, that the indemnifying parties shall, in
connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for each Underwriter
and controlling persons not having actual or potential differing interests with
such Underwriter or among themselves, which firm shall be designated in writing
by such Underwriter, and that all such fees and expenses shall be reimbursed on
a monthly basis as provided in paragraph (a) hereof. An indemnifying party will
not, without the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent (A) includes an unconditional
release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding; and (B) does not include a statement as to, or an
admission of fault, culpability or a failure to act by or on behalf of an
indemnified party.
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(c)
Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless College Loan and its directors and officers, and any person who
controls College Loan within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, to the same extent as the indemnity from College Loan to
the Underwriters set forth in paragraph (a) hereof, but only with respect to
information relating to such Underwriter furnished in writing by such
Underwriter expressly for use in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus
therein, it being understood that the only such information furnished by any
Underwriter consists of the information described as such in Section 10 of this
Agreement. If any action, suit or proceeding shall be brought against College
Loan, any of its directors or officers, or any such controlling person based on
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus and in respect of which indemnity
may be sought against an Underwriter pursuant to this paragraph (c), such
Underwriter shall have the rights and duties given to College Loan by paragraph
(b) above (except that if College Loan shall have assumed the defense thereof
the Underwriter shall have the option to assume such defense but shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at such
Underwriter's expense), and College Loan, its directors and officers, and any
such controlling person shall have the rights and duties given to the
Underwriters by paragraph (b) above. The foregoing indemnity agreement shall be
in addition to any liability which the Underwriters may otherwise have.
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(d)
If the indemnification provided for in this Section 5 is unavailable to an
indemnified party under paragraph (a) or (c) hereof in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by College Loan on
the one hand and the applicable Underwriter on the other hand from the offering
of the Notes; or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of College Loan on the one hand and the applicable Underwriter on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by College Loan on the
one hand and an Underwriter on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Notes (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriter. The relative fault of
College Loan on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by College Loan or the Company
on the one hand or by an Underwriter on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
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(e)
College Loan and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 5 were determined by a pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 5, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter with respect to the Notes underwritten
by such Underwriter exceed the sum of the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this paragraph
(e) to contribute are several in proportion to their respective underwriting
obligations.
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(f)
Any losses, claims, damages, liabilities or expenses for which an indemnified
party is entitled to indemnification or contribution under this Section 5 shall
be paid by the indemnifying party to the indemnified party as such losses,
claims, damages, liabilities or expenses are incurred. The indemnity and
contribution agreements contained in this Section 5 and the representations and
warranties of College Loan and the Underwriters set forth in this Agreement
shall remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of the Underwriters, College Loan or any
person controlling any of them or their respective directors or officers; (ii)
acceptance of any Notes and payment therefor hereunder; and (iii) any
termination of this Agreement. A successor to the Underwriters, College Loan or
any person controlling any of them or their respective directors or officers,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 5.
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6. Conditions of the Underwriters' Obligations.
The obligations of the Underwriters to purchase the Notes hereunder are subject
to the following conditions precedent:
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(a)
All actions required to be taken and all filings required to be made by the
Company under the Act prior to the sale of the Notes shall have been duly taken
or made. At and prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Company or the Underwriters, shall be contemplated by the Commission.
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(b)
Subsequent to the effective date of this Agreement, there shall not have
occurred (i) any change, or any development or event involving a prospective
change, in or affecting the condition (financial or other), business,
properties, net worth, or results of operations of the Company, the Servicers, a
Guarantee Agency or College Loan not contemplated by the Registration Statement,
which in the opinion of the Underwriters, would materially adversely affect the
market for the Notes; (ii) any downgrading in the rating of any debt securities
of the Company, the Servicers, a Guarantee Agency or College Loan by any
nationally recognized statistical rating organization or any public announcement
that any such organization has under surveillance or review its rating of any
debt securities of the Company, the Servicers, a Guarantee Agency or College
Loan (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating); or
(iii) any event or development which makes any statement made in the
Registration Statement or Prospectus untrue or which, in the opinion of the
Company and its counsel or the Underwriters and their counsel, requires the
filing of any amendment to or change in the Registration Statement or Prospectus
in order to state a material fact required by any law to be stated therein or
necessary in order to make the statements therein not misleading, if amending or
supplementing the Registration Statement or Prospectus to reflect such event or
development would, in the opinion of the Underwriters, materially adversely
affect the market for the Notes.
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(c)
You shall have received an opinion addressed to you of Stroock & Stroock & ▇▇▇▇▇
LLP, in its capacity as counsel to the Company, dated the Closing Date, in form
and substance satisfactory to you and your counsel with respect to the status of
the Company, to each Basic Document to which the Company is a party and to the
validity of the Notes and such related matters as you shall reasonably request.
In addition, you shall have received an opinion addressed to you of Stroock &
Stroock & ▇▇▇▇▇ LLP, in its capacity as counsel for the Company, in form and
substance satisfactory to you and your counsel, concerning "true sale,"
"non-consolidation" and creation of security interest and certain other issues
with respect to the transfer of the Financed Student Loans from College Loan and
the College Loan Eligible Lender Trustee to the Company and the Eligible Lender
Trustee, and from the Company and the Eligible Lender Trustee to the Trustee and
an opinion addressed to you of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger with respect to said
security interest being a first priority perfected security interest.
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(d)
You shall have received an opinion addressed to you of Stroock & Stroock & ▇▇▇▇▇
LLP, in its capacity as counsel for the Company, dated the Closing Date, in form
and substance satisfactory to you and your counsel to the effect that the
statements in the Prospectus under the headings "Federal Income Tax
Consequences" and "ERISA Considerations," to the extent that they constitute
statements of matters of law or legal conclusions with respect thereto, have
been prepared or reviewed by such counsel and are correct in all material
respects.
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(e)
You shall have received an opinion addressed to you of Stroock & Stroock & ▇▇▇▇▇
LLP, in its capacity as counsel for the Company, dated the Closing Date, in form
and substance satisfactory to you and your counsel with respect to the character
of the Notes for federal tax purposes.
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(f)
You shall have received an opinion addressed to you of ▇▇▇▇▇ ▇▇▇▇ LLP, in its
capacity as Underwriters' Counsel, dated the Closing Date, in form and substance
satisfactory to you.
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(g)
You shall have received an opinion addressed to you of Stroock & Stroock & ▇▇▇▇▇
LLP, in its capacity as counsel for the Company, dated the Closing Date in form
and substance satisfactory to you and your counsel with respect to the
Prospectus and the Registration Statement and certain matters arising under the
Trust Indenture Act of 1939, as amended, and the Investment Company Act of 1940,
as amended.
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(h)
You shall have received opinions addressed to you of The ▇▇▇▇▇▇▇ Firm, as
counsel to College Loan with respect to College Loan and of Stroock & Stroock &
▇▇▇▇▇ LLP and/or ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger as counsel to SPC, with respect to
SPC, each dated the Closing Date and satisfactory in form and substance to you
and your counsel, to the effect that:
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(i)
Each of College Loan and SPC is a corporation in good standing under the laws of
their respective state of organization; each having the full power and
authority, corporate and other, to own its properties and conduct its business,
as presently conducted by it, and to enter into and perform its obligations
under each of the Basic Documents to which it is a party.
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(ii)
The Basic Documents to which College Loan is a party have been authorized,
executed and delivered by appropriate officers acting for and on behalf of
College Loan. Assuming authorization, execution and delivery by appropriate
officers acting for and on behalf of the other parties thereto, each such
agreement is legal, valid and binding upon College Loan, enforceable against
College Loan in accordance with their respective terms, except (A) the
enforceability thereof may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights; and (B) remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
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(iii)
Neither the execution and delivery by College Loan of the Basic Documents to
which it is a party, nor the consummation by College Loan of the transactions
contemplated therein nor the fulfillment of the terms thereof by College Loan
will conflict with, result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the articles of
incorporation, as amended, or bylaws, as amended, of College Loan or of any
indenture or other agreement or instrument to which College Loan is a party or
by which College Loan is bound, or result in a violation of or contravene the
terms of any California or federal statute, order or regulation applicable to
College Loan of any California or federal court, regulatory body, administrative
agency or governmental body having jurisdiction over College Loan.
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(iv)
There are no actions, proceedings or investigations pending or, to the best of
such counsel's knowledge, threatened against College Loan before or by any
governmental authority that might materially and adversely affect the
performance by College Loan of its obligations under, or the validity or
enforceability of, the Basic Documents to which it is a party.
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(v)
No authorization, approval or other action by, and no notice to or filing with,
any California or federal governmental authority or regulatory body is required
for the due execution, delivery and performance by College Loan of the Basic
Documents to which it is a party.
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(vi)
The information contained in the Prospectus with respect to College Loan and its
operations and business and with respect to the student loan business of College
Loan is true and correct in all material respects, and does not contain an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements contained therein, in light of the circumstances under
which they were made, not misleading.
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(i)
You shall have received an opinion addressed to you of counsel to the Trustee
and the Eligible Lender Trustee, dated the Closing Date and in form and
substance satisfactory to you and your counsel, to the effect that:
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(i)
Each of them is a banking corporation duly organized and validly existing under
the laws of the State of New York.
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(ii)
Each of them has the full corporate trust power to accept the office of trustee
under the Basic Documents to which they are a party and to enter into and
perform their obligations under the Basic Documents to which they are a party
and, additionally, in the case of the Trustee, the Market Agent Agreement
(collectively, the "Trustee Documents" and the "Eligible Lender Trustee
Documents," as the case may be).
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(iii)
The execution and delivery by the Trustee and the Eligible Lender Trustee of the
Trustee Documents and the Eligible Lender Trustee Documents, respectively, and
the performance by such parties of their obligations thereunder, have been duly
authorized by all necessary action and each has been duly executed and delivered
by the Trustee and the Eligible Lender Trustee.
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(iv)
The Trustee Documents and the Eligible Lender Trustee Documents constitute valid
and binding obligations of the Trustee and the Eligible Lender Trustee
enforceable against such party.
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(v)
The Trustee and the Eligible Lender Trustee, respectively, is an "eligible
lender" for purposes of the FFELP Program in its capacity as trustee with
respect to Financed Student Loans.
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(j)
You shall have received certificates addressed to you dated the Closing Date of
officials of the Company in which such officers shall state that, to the best of
their knowledge after reasonable investigation, (i) the representations and
warranties of the Company contained in the respective Basic Documents to which
the Company is a party are true and correct in all material respects, that the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied under such agreements at or prior to the
Closing Date; (ii) that they have reviewed the Prospectus and that the
information therein is true and correct in all material respects; and (iii)
since the date set forth in such certificate, except as may be disclosed in the
Prospectus, no material adverse change or any development involving a
prospective material adverse change, in or affecting particularly the business
or properties of the Company has occurred.
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(k)
You shall have received certificates addressed to you dated the Closing Date of
officials of College Loan in which such officers shall state that, to the best
of their knowledge after reasonable investigation, (i) the representations and
warranties of College Loan contained in the respective Basic Documents to which
College Loan is a party are true and correct in all material respects, that
College Loan has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied under such agreements at or prior to the
Closing Date; (ii) that they have reviewed the Prospectus and that the
information therein regarding College Loan and the Basic Documents to which it
is a party is fair and accurate in all material respects; and (iii) since the
date set forth in such certificate, except as may be disclosed in the
Prospectus, no material adverse change or any development involving a
prospective material adverse change in, or affecting particularly the business
or properties of College Loan has occurred.
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(l)
You shall have received evidence satisfactory to you that, on or before the
Closing Date, UCC-1 financing statements have been or are being filed in the
office of the Secretary of State of the State of Delaware reflecting the grant
of the security interest by the Company and the Eligible Lender Trustee in the
Financed Student Loans and the proceeds thereof to the Trustee.
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(m)
You shall have received a certificate addressed to you dated the Closing Date
from a responsible officer acceptable to you of the Eligible Lender Trustee and
the College Loan Eligible Lender Trustee in form and substance satisfactory to
you and your counsel and to which shall be attached each Guarantee Agreement.
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(n)
The Underwriters shall have received on the Closing Date from Price
WaterhouseCoopers a letter dated on or before the Closing Date, and in form and
substance satisfactory to the Underwriters, to the effect that they have carried
out certain specified procedures, not constituting an audit, with respect to
certain information regarding the Financed Student Loans and setting forth the
results of such specified procedures.
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(o)
All the representations and warranties of the Company contained in this
Agreement and the Basic Documents to which it is a party and of College Loan in
the Basic Documents to which it is a party shall be true and correct in all
material respects on and as of the date hereof and on and as of the Closing Date
as if made on and as of the Closing Date and the Underwriters shall have
received a certificate, dated the Closing Date and signed by officers of the
Company and such entities to the effect set forth in this Section.
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(p)
The Company shall not have failed at or prior to the Closing Date to have
performed or complied with any of its agreements herein contained and required
to be performed or complied with by it hereunder at or prior to the Closing
Date.
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(q)
The Underwriters shall have received by instrument dated the Closing Date (at
the option of the Underwriters), in lieu of or in addition to the legal opinions
referred to in this Section 6, the right to rely on opinions provided by such
counsel and all other counsel under the terms of the Basic Documents.
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(r)
Each class of Series 2003-2A Notes shall be rated "AAA," "AAA" and "Aaa,"
respectively, by Fitch, Inc. ("Fitch"), Standard & Poor's Ratings Service, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies ("S&P"), and ▇▇▇▇▇'▇ Investors Service,
Inc. ("▇▇▇▇▇'▇"), and that neither Fitch, S&P nor Moody's have placed the Notes
under surveillance or review with possible negative implications.
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(s)
The issuance of the Notes shall not have resulted in a reduction or withdrawal
by S&P or Moody's of the current rating of any outstanding notes issued by the
Company pursuant to the Indenture.
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(t)
You shall have received evidence satisfactory to you of the completion of all
actions necessary to effect the transfer of the Financed Student Loans as
described in the Prospectus and the recordation thereof on the Servicers'
computer systems.
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(u)
You shall have received certificates addressed to you dated the Closing Date
from officers of the Company and others addressing such additional matters as
you may reasonably request in form and substance satisfactory to you and your
counsel.
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(v)
You shall have received certificates addressed to you dated the initial Closing
Date of the Guarantee Agencies to the effect that (i) the information in the
Prospectus with respect to the applicable Guarantee Agency is true and correct
and is fair and accurate in all material respects; and (ii) that since the date
of the Prospectus, no material adverse change in or affecting the business or
properties of the applicable Guarantee Agency has occurred.
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(w)
You shall have received certificates addressed to you dated the initial Closing
Date of officials of each of ACS and GLESI in which such officers shall state
that, to the best of their knowledge after reasonable investigation, (i) the
representations and warranties of the applicable Servicer contained in the
Servicing Agreement to which it is a party are true and correct in all material
respects, that such Servicer 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 initial Closing Date; (ii) that they have reviewed the Prospectus
and that the information therein regarding the applicable Servicer is fair and
accurate in all material respects; and (iii) since the date set forth in such
certificate, except as may be disclosed in the Prospectus, no material adverse
change or any development involving a prospective material adverse change in, or
affecting particularly the business or properties of the applicable Servicer,
has occurred.
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(x)
You shall have received such other opinions (including an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇), certificates and documents as are required under the Indenture
as a condition to the issuance of the Notes.
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The
Company will provide or cause to be provided to you such conformed copies of
such of the foregoing opinions, notes, letters and documents as you reasonably
request.
7. Expenses. The Company agrees to pay or
to otherwise cause the payment of the following costs and expenses and all other
costs and expenses incident to the performance by it of its obligations
hereunder: (a) the preparation, printing or reproduction of the Registration
Statement, the Prospectus and each amendment or supplement to any of them, this
Agreement, and each other Basic Document; (b) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, the Prospectus and all
amendments or supplements to, and preliminary versions of, any of them as may be
reasonably requested for use in connection with the offering and sale of the
Notes; (c) the preparation, printing, authentication, issuance and delivery of
definitive certificates for the Notes; (d) the printing (or reproduction) and
delivery of this Agreement, the preliminary and supplemental Blue Sky Memoranda
and all other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Notes; (e) qualification of the Indenture
under the Trust Indenture Act; (f) the qualification of the Notes for offer and
sale under the securities or Blue Sky laws of the several states as provided in
Section 3(h) hereof (including the reasonable fees, expenses and disbursements
of counsel relating to the preparation, printing or reproduction, and delivery
of the preliminary and supplemental Blue Sky Memoranda and such qualification);
(g) the fees and disbursements of (i) the Company's counsel, (ii) the Trustee
and its counsel, (iii) the Delaware Trustee and its counsel, (iv) the Depository
Trust Company in connection with the book-entry registration of the Notes, (v)
the SEC, and (vi) Price Waterhouse Coopers, accountants for the Company and
issuer of the agreed upon procedures letter; and (h) the fees charged by S&P,
Fitch and Moody's for rating the Notes.
8. Effective Date of Agreement. This
Agreement shall be deemed effective as of the date first above written upon the
execution and delivery hereof by all the parties hereto. Until such time as this
Agreement shall have become effective, it may be terminated by the Company, by
notifying each of the Underwriters, or by the Underwriters, by notifying the
Company.
Any
notice under this Section 8 may be given by facsimile or telephone but
shall be subsequently confirmed by letter.
9. Termination of Agreement. This Agreement
shall be subject to termination in the absolute discretion of the Underwriters,
without liability on the part of the Underwriters to the Company, by notice to
the Company, if prior to the Closing Date (a) trading in securities generally on
the New York Stock Exchange, American Stock Exchange or the Nasdaq National
Market shall have been suspended or materially limited; (b) a general moratorium
on commercial banking activities in New York shall have been declared by either
federal or state authorities; or (c) there shall have occurred any outbreak or
escalation of hostilities or other international or domestic calamity, crisis or
change in political, financial or economic conditions, the effect of which is
such as to make it, in the judgment of the Underwriters, impracticable or
inadvisable to commence or continue the offering of the Notes on the terms set
forth in the Prospectus, as applicable, or to enforce contracts for the resale
of the Notes by the Underwriters. Notice of such termination may be given to the
Company by facsimile or telephone and shall be subsequently confirmed by
letter.
10. Information Furnished by the
Underwriters. The statements set forth in the second, fourth and seventh
paragraphs and the table under the heading "Plan of Distribution" in the
Prospectus Supplement constitute the only information furnished by or on behalf
of the Underwriters as such information is referred to in Sections 3(b) and 5
hereof.
11. Default by One of the Underwriters. If
any of the Underwriters shall fail on the Closing Date to purchase the Notes
which it is obligated to purchase hereunder (the "Defaulted Notes"), the
remaining Underwriter (the "Non-Defaulting Underwriter") shall have the right,
but not the obligation, within one Business Day thereafter, to make arrangements
to purchase all, but not less than all, of the Defaulted Notes upon the terms
herein set forth; if, however, the Non-Defaulting Underwriter shall have not
completed such arrangements within such one Business Day period, then this
Agreement shall terminate without liability on the part of the Non-Defaulting
Underwriter.
No
action taken pursuant to this Section shall relieve any defaulting Underwriter
from liability in respect of its default.
In
the event of any such default which does not result in a termination of this
Agreement, either the Non-Defaulting Underwriters or the Company shall have the
right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
12. Computational Materials.
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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 Company's 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance
Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇ 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 27, 1994, and the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (collectively, the "▇▇▇▇▇▇/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 ▇▇▇▇▇▇/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 Company with representative forms of all
Computational Materials prior to their first use, to the extent such forms have
not previously been approved by the Company for use by such Underwriter. Each
Underwriter shall provide to the Company, for filing on Form 8-K as provided in
Section 12(b), copies of all Computational Materials that are to be filed with
the Commission pursuant to the ▇▇▇▇▇▇/PSA Letters. Each Underwriter may provide
copies of the foregoing in a consolidated or aggregated form. All Computational
Materials described in this paragraph (iii) must be provided to the Company not
later than 10:00 a.m., New York City 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 Company
pursuant to paragraph (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 ▇▇▇▇▇▇/PSA Letters.
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(v)
In the event of any delay in the delivery by an Underwriter to the Company of
all Computational Materials required to be delivered in accordance with
subparagraph (iii) above, the Company 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 Company to comply with its agreement set forth in Section 12(b) to
file the Computational Materials by the time specified therein.
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(b)
The Company shall file the Computational Materials, if any, provided to it by
the Underwriter under Section 12(a)(iii) with the Commission pursuant to a
Current Report on Form 8-K no later than 5:30 p.m., New York time, on the date
required pursuant to the ▇▇▇▇▇▇/PSA Letters.
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13. Survival of Representations and
Warranties. The respective indemnities, agreements, representations,
warranties and other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement or contained in
notes of officers of the Company 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 Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the
Notes.
14. Miscellaneous. Except as otherwise
provided in Sections 5, 8 and 9 hereof, notice given pursuant to any provision
of this Agreement shall be in writing and shall be delivered (a) if to the
Company or College Loan, at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇ with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Stroock
& Stroock & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and (b) if to
the Underwriters, to the address of the respective Underwriter set forth above
with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
This
Agreement has been and is made solely for the benefit of the Underwriters, the
Company, their respective directors, officers, managers, trustees and
controlling persons referred to in Section 5 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in
this Agreement shall include a purchaser from an Underwriter of any of the Notes
in his status as such purchaser.
15. Applicable Law; Counterparts. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed within the
State of New York without giving effect to the choice of laws or conflict of
laws principles thereof.
The
Company hereby submits 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.
This
Agreement may be signed in various counterparts which together constitute one
and the same instrument. If signed in counterparts, this Agreement shall not
become effective unless at least one counterpart hereof or thereof shall have
been executed and delivered on behalf of each party hereto.
16. Liability of Wilmington Trust Company.
Wilmington Trust Company acts solely as the Delaware Trustee hereunder and not
in its individual capacity. All persons having any claim against the Company or
the Delaware Trustee by reason of this Agreement shall look only to the Trust
Estate for payment or satisfaction thereof.
Please
confirm that the foregoing correctly sets forth the agreement between the
Company and the Underwriters.
| |
Very truly yours,
COLLEGE LOAN CORPORATION TRUST I
By: COLLEGE LOAN CORPORATION, as
Issuer Administrator
By /s/ ▇▇▇▇ ▇▇▇▇
COLLEGE LOAN CORPORATION
By /s/ ▇▇▇▇ ▇▇▇▇
|
Confirmed as of the date first
above mentioned.
UBS SECURITIES LLC
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Name ▇▇▇▇▇▇▇ ▇▇▇▇
Title Director
|
UBS SECURITIES LLC
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title Director
|
CITIGROUP GLOBAL MARKETS INC.
By /s/ ▇▇▇ ▇▇▇▇▇▇
Name ▇▇▇ ▇▇▇▇▇▇
Title Director
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
/s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
SCHEDULE A
Notes UBS Securities Citigroup Global ▇▇▇▇▇▇▇, ▇▇▇▇▇ Total
LLC Markets Inc. & Co.
Series 2003-2A-1 $160,000,000 $160,000,000 $ 25,000,000 $ 345,000,000
Series 2003-2A-2 $298,400,000 $298,400,000 $ 50,000,000 $ 646,800,000
Series 2003-2A-3 $141,600,000 $141,600,000 $ 25,000,000 $ 308,200,000
------------ ------------ ------------ ---------------
Total $600,000,000 $600,000,000 $100,000,000 $1,300,000,000
SCHEDULE B
Terms of the Notes
Final Price to Underwriting Proceeds to
Series Interest Rate Maturity Date Public Discount Issuer
2003-2A-1 3-month LIBOR plus 0.03% 07/25/2008 100% 0.19% $ 344,344,500
2003-2A-2 3-month LIBOR plus 0.14% 01/25/2012 100% 0.22% $ 645,377,040
2003-2A-3 3-month LIBOR plus 0.20% 07/25/2013 100% 0.245% $ 307,444,910
--------------
Total $1,297,166,450
