THE NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-4 Student Loan Asset Backed Notes consisting of
EXHIBIT
1.1
$1,025,000,000
THE
NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-4
Student
Loan Asset Backed Notes
consisting
of
|
$
|
285,000,000
|
Class
A-1 Notes
|
|
$
|
256,000,000
|
Class
A-2 Notes
|
|
$
|
134,000,000
|
Class
A-3 Notes
|
|
$
|
200,000,000
|
Class
A-4 Notes
|
|
$
|
200,000,000
|
Class
A-IO Notes (initial notional amount)
|
|
$
|
52,000,000
|
Class
B Notes
|
|
$
|
51,000,000
|
Class
C Notes
|
|
$
|
47,000,000
|
Class
D Notes
|
UNDERWRITING
AGREEMENT
November
29, 2006
|
Xxxxxxx,
Xxxxx & Co.
00
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
|
X.X.
Xxxxxx Securities Inc.
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000,
|
Ladies
and Gentlemen:
The
National Collegiate Funding LLC, a Delaware limited liability company (“National
Collegiate Funding”), has authorized The National Collegiate Student Loan Trust
2006-4, a Delaware statutory trust (the “Trust”), to sell to Xxxxxxx, Xxxxx
& Co., X.X. Xxxxxx Securities Inc. and Greenwich Capital Markets, Inc. (each
an “Underwriter” and collectively, the “Underwriters”), pursuant to the terms of
this Underwriting Agreement (this “Agreement”), $1,025,000,000 aggregate
principal amount (and in the case of the A-IO Notes, $200,000,000 aggregate
notional amount) of the Trust’s Class A-1 Notes, Class A-2 Notes, Class A-3
Notes, Class A-4 Notes, Class A-IO Notes, Class B Notes, Class C Notes and
Class
D Notes (collectively, the “Offered Notes”) in the classes and aggregate
principal or reference amounts set forth on Schedule
A
hereto.
The Offered Notes will be issued under an Indenture, dated as of December 1,
2006 (the “Indenture”), between the Trust and U.S. Bank National Association, a
national banking association (“U.S. Bank”), as indenture trustee (the “Indenture
Trustee”). Upon issuance, the Offered Notes will be secured by, among other
things, Financed Student Loans (as defined in the Indenture) pledged to the
Indenture Trustee. The Financed Student Loans will be serviced by The
Pennsylvania Higher Education Assistance Agency (“PHEAA”) and one or more
additional third party servicers (each, a “Servicer” and collectively, the
“Servicers”) pursuant to the servicing agreements listed on Schedule
B
hereto
(collectively, the “Servicing Agreements”), which servicing agreements will be
assigned to the Trust by The First Marblehead Corporation (“FMC”), as of
December 7, 2006.
This
Agreement, along with (i) the note purchase agreements listed on Schedule
C
hereto
(collectively, the “Student Loan Purchase Agreement”), (ii) the Servicing
Agreements, (iii) the Indenture, (iv) the Administration Agreement dated as
of
December 7, 2006 among the Trust, Wilmington Trust Company (the “Trustee”), the
Indenture Trustee, National Collegiate Funding and First Marblehead Data
Services, Inc., (v) the Back-up Administration Agreement, dated as of December
7, 2006, among the Trust, the Trustee, the Indenture Trustee, National
Collegiate Funding and U.S. Bank, as the back-up administrator, (vi) the Deposit
and Sale Agreement dated as of December 7, 2006 (the “Deposit and Sale
Agreement”) between National Collegiate Funding and the Trust and (vii) the
Trust Agreement dated as of December 7, 2006, among National Collegiate Funding,
as Depositor, and XXXX, as Owners, and Wilmington Trust Company, as Trustee
are
collectively referred to as the “Basic Documents.”
Capitalized
terms used herein without definition shall have the meanings ascribed to them
in
the Indenture.
Agreements
to Sell and Purchase.
National
Collegiate Funding hereby agrees, subject to all the terms and conditions set
forth herein, to cause the Trust to sell to the Underwriters and, upon the
basis
of the representations, warranties and agreements of National Collegiate Funding
contained herein and subject to all the terms and conditions contained herein,
each Underwriter, severally and not jointly, agrees to purchase from the Trust,
such principal amount (or in the case of the Class A-IO Notes, reference amount)
of the Offered Notes set forth next to the name of such Underwriter on
Schedule
A
hereto
at such respective purchase prices as are set forth on Schedule
A
hereto.
Delivery
of the Offered Notes and Payment Therefor.
Delivery
to the Underwriters of and payment for the Offered Notes shall be made at the
office of Xxxxxxx Xxxxxxxx & Xxxx LLP at 10:00 a.m., New York City time on
December 7, 2006 (the “Closing Date”). The place of such closing and the Closing
Date may be varied by agreement between the Underwriters, National Collegiate
Funding and the Trust.
The
Offered Notes will be delivered to the Underwriters against payment of the
purchase price therefor to the Trust 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 National
Collegiate Funding and the Underwriters, each Class of Offered Notes will be
evidenced by a single global security in definitive form deposited with the
Indenture Trustee as custodian for The Depository Trust Company (“DTC”) and/or
by additional definitive securities, and will be registered, in the case of
the
global classes of Offered Notes, in the name of Cede & Co. as nominee of
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 Offered 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.
Representations
and Warranties of National Collegiate Funding.
National
Collegiate Funding represents and warrants to each of the Underwriters
that:
A
registration statement on Form S-3 (No 333-128413), including a prospectus
and such amendments thereto as may have been required to the date hereof,
relating to the Offered 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 within the three years prior to the Closing Date and is still
effective; such registration statement, as amended, and the prospectus relating
to the sale of the Offered Notes offered thereby constituting a part thereof,
as
from time to time amended or supplemented (including the base prospectus, any
prospectus supplement (the “Prospectus Supplement”) (including static pool
information deemed excluded pursuant to Regulation AB Item 1105(d)) filed with
the Commission pursuant to Rule 424(b) under the Act, the information deemed
to
be a part thereof pursuant to Rule 430A(b) under the Act, and the information
incorporated by reference therein) are respectively referred to herein as the
“Registration Statement” and the “Prospectus”; and the conditions to the use of
a registration statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, and the conditions of Rule 415 under the Act, have
been satisfied with respect to the Registration Statement. The Trust has
prepared a Free Writing Prospectus (as defined herein) that contains
substantially all information that will appear in the Prospectus Supplement
other than the Underwriting section (such Free Writing Prospectus, together
with
the base prospectus, the “Definitive Free Writing Prospectus”). The Trust will
prepare a term sheet containing the final terms for all classes of the Offered
Notes (except for the interest rates on the Offered Notes) together with
substantially all of the information that will appear in the Prospectus
Supplement including the Underwriting section (except for the allocation of
the
Offered Notes among the Underwriters) that is not included in the Definitive
Free Writing Prospectus (the “Term Sheet”) (the Definitive Free Writing
Prospectus and the Term Sheet shall be referred to as the “Pricing Information
Package”). The Pricing Information Package shall be provided to the Underwriters
for delivery to each investor prior to the time of Contract of Sale (as defined
herein).
On
the
applicable effective date of each part of the Registration Statement, the
Registration Statement and the Prospectus conformed in all respects to the
requirements of the Act, the rules and regulations thereunder (the “Rules and
Regulations”) and the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder (the “Trust Indenture Act”), and, 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 did not include or will not include any untrue statement of a material
fact
or omit to state any material fact required to be stated therein or necessary
to
make the statements therein not misleading; 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 National
Collegiate Funding by the Underwriters, specifically for use therein, which
is
limited to the information set forth in Section 11 of this Agreement. In
addition, the Pricing Information Package, as of the date of Contract of Sale
and as of the Closing Date, did not and will not contain an untrue statement
of
a material fact and did not and will not omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading.
The
Commission has not issued and, to the best knowledge of National Collegiate
Funding, is not threatening to issue any order preventing or suspending the
use
of the Registration Statement.
The
National Collegiate Funding is not, as of the first date upon which it delivers
the Definitive Free Writing Prospectus or as of the date of Contract of Sale,
an
Ineligible Issuer, as such term is defined in Rule 405 under the Act. Assuming
that the Notes are issued in accordance with the provisions of the Indenture and
distributed in accordance with the terms of this Agreement and as described
in
the Definitive Free Writing Prospectus and in the Prospectus, the Notes are
“asset backed securities” within the meaning of, and satisfy the requirements
for use of, Form S-3 under the Act.
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 National Collegiate Funding or its affiliates for the consummation
of
the transactions contemplated by this Agreement shall have been obtained, except
as otherwise provided in the Basic Documents.
The
Indenture has been duly and validly authorized by National Collegiate Funding
and, upon its execution and delivery by the Trust and assuming due
authorization, execution and delivery by the Indenture Trustee, will be a valid
and binding agreement of the Trust, enforceable in accordance with its
respective 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 Offered Notes.
The
Offered Notes have been duly authorized by the Trust and the National Collegiate
Funding, respectively, and the Offered Notes to be issued on the Closing Date,
when executed by the Trust and authenticated by the Indenture 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 Trust or
National Collegiate Funding, as applicable, entitled to the benefits of the
Indenture and enforceable in accordance with its 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 Offered Notes and
the Basic Documents will conform in all material respects to the description
thereof in the Prospectus and the Pricing Information Package.
National
Collegiate Funding is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware with
full
power and authority to own, lease and operate its properties and to conduct
its
business as described in the Prospectus and as conducted on the date hereof,
and
is duly registered and qualified to conduct its business and is in good standing
in each jurisdiction or place where the nature of its properties or the conduct
of its business requires such registration or qualification, except where the
failure so to register or qualify does not have a material adverse effect on
the
condition (financial or other), business, properties, net worth or results
of
operations of National Collegiate Funding.
Other
than as contemplated by this Agreement or as disclosed in the Prospectus and
in
the Definitive Free Writing Prospectus, there is no broker, finder or other
party that is entitled to receive from National Collegiate Funding or any of
its
affiliates any brokerage or finder’s fee or other fee or commission as a result
of any of the transactions contemplated by this Agreement.
There
are
no legal or governmental proceedings pending or threatened or, to the knowledge
of National Collegiate Funding contemplated, against National Collegiate
Funding, or to which National Collegiate Funding or any of its properties is
subject, that are not disclosed in the Prospectus and in the Definitive Free
Writing 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 National Collegiate Funding,
or
would materially and adversely affect the ability of National Collegiate Funding
or the Trust to perform its obligations under this Agreement and the other
Basic
Documents or otherwise materially affect the issuance of the Offered Notes
or
the consummation of the transactions contemplated hereby or by the Basic
Documents.
Neither
the offer, sale or delivery of the Offered Notes by the Trust nor the execution,
delivery or performance of this Agreement or the other Basic Documents by
National Collegiate Funding or the Trust nor the consummation by National
Collegiate Funding or the Trust 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
National Collegiate Funding or the Trust 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
any of National Collegiate Funding or the Trust is a party or by which any
of
National Collegiate Funding or the Trust or any of their 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
any of National Collegiate Funding or the Trust or any of their respective
properties, or will result in the creation or imposition of any lien, charge
or
encumbrance upon any property or assets of any of National Collegiate Funding
or
the Trust 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.
National
Collegiate Funding has all requisite power and authority to execute, deliver
and
perform its obligations under this Agreement and the other Basic Documents
to
which it is a party; the execution and delivery of, and the performance by
National Collegiate Funding of its obligations under, this Agreement and the
other Basic Documents to which it is a party have been duly and validly
authorized by National Collegiate Funding and this Agreement and the other
Basic
Documents have been duly executed and delivered by National Collegiate Funding
and constitute the valid and legally binding agreements of National Collegiate
Funding, enforceable against National Collegiate Funding in accordance with
their respective terms, except as the enforcement hereof and thereof may be
limited by bankruptcy, insolvency, moratorium, fraudulent conveyance or other
similar laws relating to or affecting creditors’ rights generally and court
decisions with respect thereto and subject to the applicability of general
principles of equity, and except as rights to indemnity and contribution
hereunder and thereunder may be limited by Federal or state securities laws
or
principles of public policy.
National
Collegiate Funding’s assignment and delivery of Financed Student Loans to the
order of the Trustee on behalf of the Trust pursuant to the Deposit and Sale
Agreement will vest in the Trustee on behalf of Trust all of National Collegiate
Funding’s right, title and interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other
encumbrance.
The
Trust
is not, nor as a result of the issuance and sale of the Offered Notes as
contemplated hereunder will it become, subject to registration as an “investment
company” under the Investment Company Act of 1940, as amended.
The
representations and warranties made by National Collegiate Funding in any Basic
Document to which National Collegiate Funding is a party and made in any
Officer’s Certificate of the Trust will be true and correct at the time made and
on and as of the applicable Closing Date.
Since
the
initial effective date of the Registration Statement, no material adverse change
or any development involving a prospective material adverse change in, or
affecting particularly the business or properties of, National Collegiate
Funding has occurred.
None
of
the information related to the offering of the Offered Notes on (or hyperlinked
from) any website maintained or supported by National Collegiate Funding or
any
affiliate, including FMC’s website at xxx.xxxxxxxxxxxxxxx.xxx, includes or
constitutes a Free Writing Prospectus, other than a Permitted Free Writing
Prospectus, and FMC does not maintain or support any website other than
xxx.xxxxxxxxxxxxxxx.xxx. A “Permitted Free Writing Prospectus” shall include any
Free Writing Prospectus filed with the SEC in connection with the transactions
contemplated hereby and any “bona fide electronic road show” (as defined in Rule
433 under the Act), if any, related to the offering of the Offered Notes
contemplated hereby.
National
Collegiate Funding has filed each Free Writing Prospectus required to have
been
filed by it under the Act and the Rules and Regulations and it has done so
within the applicable periods of time required under the Act and the Rules
and
Regulations.
Offering
by Underwriters.
Each
Underwriter proposes to offer and/or solicit offers for the Offered Notes to
be
purchased by it for sale to the public as set forth in the Pricing Information
Package and in the Prospectus and each Underwriter agrees that all such offers,
solicitations and sales by it shall be made in compliance with all applicable
laws and regulations. Prior to November 13, 2006, none of the Underwriters
has
offered, pledged, sold, disposed of or otherwise transferred any Offered Note
or
any security backed by the Financed Student Loans, any interest in any Offered
Note or such security or any Financed Student Loan.
Each
Underwriter will enter into a Contract of Sale with an investor only after
delivery of the Pricing Information Package to such investor. For purposes
of
this Agreement, “Contract of Sale” shall have the same meaning as in Rule 159
under the Act and all Commission guidance relating to Rule 159. The Definitive
Free Writing Prospectus shall prominently set forth substantially the following
statement:
This
Definitive Free Writing Prospectus supersedes the information in any free
writing prospectus previously delivered in connection with this offering, to
the
extent that this Definitive Free Writing Prospectus is inconsistent with any
information in any free writing prospectus delivered in connection with this
offering.
Each
Underwriter may prepare and provide to investors certain Free Writing
Prospectuses (as defined below), subject to the following
conditions:
Unless
preceded or accompanied by a prospectus satisfying the requirements of Section
10(a) of the Act, an Underwriter shall not convey or deliver any Written
Communication (as defined herein) to any person in connection with the initial
offering of the Offered Notes, unless such Written Communication (i) is made
in
reliance on Rule 134 under the Act, (ii) constitutes a prospectus satisfying
the
requirements of Rule 430B under the Act, (iii) is the Definitive Free Writing
Prospectus or the Term Sheet, or (iv) both (A) constitutes a Free Writing
Prospectus used in reliance on Rule 164 and (B) includes only information that
is within the definition of either (x) “ABS Informational and Computational
Materials” as defined in Item 1100 of Regulation AB or (y) Permitted Additional
Materials (as defined herein). “Written Communication” has the same meaning as
that term is defined in Rule 405 under the Act.
Each
Underwriter shall comply with all applicable laws and regulations in connection
with the use of Free Writing Prospectuses, including but not limited to Rules
164 and 433 under the Act.
For
purposes hereof, “Free Writing Prospectus” shall have the meaning given such
term in Rules 405 and 433 under the Act. “Issuer Information” shall mean
information included in a Free Writing Prospectus that both (i) is within the
types of information specified in clauses (1) to (5) of footnote 271 of
Commission Release No. 33-8591 (Securities Offering Reform) as shown in
Exhibit
I
attached
hereto and (ii) has been either prepared by or reviewed and approved by,
National Collegiate Funding. Information contained in the Pricing Information
Package and each of the Press Releases of FMC dated November 13, 2006 and
November 27, 2006, respectively, shall be deemed to be approved by National
Collegiate Funding for purposes of the definition of Issuer Information and
consented to for purposes of the definition of Permitted Additional Materials.
“Underwriter Derived Information” shall refer to information of the type
described in clause (5) of such footnote 271 when prepared by an Underwriter.
“Permitted Additional Materials” shall mean information that is not ABS
Informational and Computational Materials and (A) that are referred to in
Section 4(c)(6), (B) that constitute price, yield, weighted average life,
subscription or allocation information, or a trade confirmation, or (C)
otherwise with respect to which National Collegiate Funding has provided written
consent to the Underwriter to include in a Free Writing Prospectus. As used
herein with respect to any Free Writing Prospectus, “Pool Information” shall
mean the information with respect to the characteristics of the Financed Student
Loans and administrative and servicing fees, as provided by or on behalf of
National Collegiate Funding to the Underwriter at the time most recent to the
date of such Free Writing Prospectus.
All
Free
Writing Prospectuses provided to investors, whether or not filed with the
Commission, shall bear a legend including substantially the following
statement:
The
National Collegiate Funding LLC has filed a registration statement (including
a
prospectus) with the SEC for the offering to which this communication relates.
Before you invest, you should read the prospectus in that registration statement
and other documents The National Collegiate Funding LLC has filed with the
SEC
for more complete information about The National Collegiate Funding LLC and
the
offering. You may get these documents for free by visiting XXXXX on the SEC
web
site at xxx.xxx.xxx. Alternatively, The National Collegiate Funding LLC, any
underwriter or any dealer participating in the offering will arrange to send
you
the base prospectus if you request it by calling toll-free at
0-000-000-0000.
National
Collegiate Funding or any Underwriter shall have the right to require additional
specific legends or notations to appear on any Free Writing Prospectus, the
right to require changes regarding the use of terminology and the right to
determine the types of information appearing therein with the approval of,
in
the case of National Collegiate Funding, each Underwriter and, in the case
of
the Underwriters, National Collegiate Funding (which in either case shall not
be
unreasonably withheld).
Each
Underwriter shall deliver to National Collegiate Funding and its counsel prior
to the proposed date of first use thereof (i) any Free Writing Prospectus
prepared by that Underwriter that contains any Issuer Information (other than
a
Free Writing Prospectus that contains only preliminary terms of the Offered
Notes) and (ii) any Free Writing Prospectus prepared by that Underwriter that
contains only a description of the final terms of the Offered Notes after such
terms have been established for all classes of Offered Notes. To facilitate
filing to the extent required by this Agreement, all Underwriter Derived
Information shall be set forth in a document separate from the document
including Issuer Information. Notwithstanding the foregoing, the Underwriter
shall not be required to deliver any Free Writing Prospectus to National
Collegiate Funding to the extent that it does not contain substantive changes
from or additions to any Free Writing Prospectus previously approved by National
Collegiate Funding.
Subject
to the following sentence, all information provided by any Underwriter to
Bloomberg or Intex or similar entities to the extent constituting a Free Writing
Prospectus, shall be deemed for all purposes hereof to be a Free Writing
Prospectus. Each Underwriter may send the information contained in Bloomberg
screens and Intex, cdi files to potential investors in the Offered Notes. In
connection therewith, the Underwriter agrees that it shall not provide any
information constituting Issuer Information through the foregoing media unless
that information is or will be contained either in the Definitive Free Writing
Prospectus or in a Free Writing Prospectus delivered in compliance with Section
4(c)(5), above.
Each
Underwriter covenants with National Collegiate Funding that after the Prospectus
is available such Underwriter shall not distribute any written information
concerning the Offered Notes to a investor unless such information is preceded
or accompanied by the Prospectus or by notice to the investor that the
Prospectus is available for free by visiting XXXXX on the SEC website at
xxx.xxx.xxx. The use of written information in accordance with the preceding
sentence is not a Free Writing Prospectus and is not otherwise restricted or
governed in any way by this Agreement.
Each
Underwriter shall deliver to National Collegiate Funding, not less than one
business day prior to the required date of filing thereof, all information
included in a Free Writing Prospectus prepared by such Underwriter required
to
be filed with the Commission under the Act.
Each
Underwriter further agrees that (i) if the Prospectus is not delivered with
or
preceding delivery of the confirmation in reliance on Rule 172, it will include
in every confirmation sent out the notice required by Rule 173 informing the
investor that the sale was made pursuant to the Registration Statement and
that
the investor may request a copy of the Prospectus from such Underwriter; (ii)
if
a paper copy of the Prospectus is requested by a person who receives a
confirmation, such Underwriter shall deliver a paper copy of such Prospectus;
(iii) if an electronic copy of the Prospectus is delivered by an Underwriter
for
any purpose, such copy shall be the same electronic file containing the
Prospectus in the identical form transmitted electronically to such Underwriter
by or on behalf of National Collegiate Funding specifically for use by such
Underwriter pursuant to this Section 4(f). Each Underwriter further agrees
that
(i) if it delivers to an investor the Prospectus in .pdf format, upon such
Underwriter’s receipt of a request from the investor within the period for which
delivery of the Prospectus is required, such Underwriter will promptly deliver
or cause to be delivered to the investor, without charge, a paper copy of the
Prospectus and (ii) it will provide to National Collegiate Funding any Free
Writing Prospectuses, or portions thereof, prepared by it which National
Collegiate Funding is required to file with the Commission in electronic format
and will use reasonable efforts to provide to National Collegiate Funding such
Free Writing Prospectuses, or portions thereof, in either Microsoft Word® or
Microsoft Excel® format and not in .pdf format, except to the extent that
National Collegiate Funding, in its sole discretion, waives such
requirements.
Each
Underwriter hereby represents and agrees to the terms set forth in Exhibit
II
hereto
which are incorporated herein by reference.
Each
Underwriter shall maintain written or electronic records of the time and manner
that any disclosure materials (including the Prospectus, Prospectus Supplement,
Definitive Free Writing Prospectus, Term Sheet or any Free Writing Prospectus)
were conveyed to investors at or prior to the Contract of Sale to the extent
required by the Act. In addition, each of the Underwriters and National
Collegiate Funding shall, for a period of at least (3) three years after the
date hereof, maintain written and/or electronic records of any Free Writing
Prospectus used to the extent not filed with the Commission.
Agreements
of National Collegiate Funding.
National
Collegiate Funding agrees with each of the Underwriters as follows:
National
Collegiate Funding will prepare a supplement to the Prospectus setting forth
the
amount of the Offered Notes covered thereby and the terms thereof not otherwise
specified in the Prospectus, the price at which the Offered Notes are to be
purchased by the Underwriters, either the initial public offering price or
the
method by which the price at which the Offered Notes are to be sold will be
determined, the selling concessions and reallowances, if any, and such other
information as the Underwriters and National Collegiate Funding deem appropriate
in connection with the offering of the Offered Notes, and National Collegiate
Funding will timely file such supplement to the prospectus with the SEC pursuant
to Rule 424(b) under the Act, but National Collegiate Funding will not file
any
amendments to the Registration Statement as in effect with respect to the
Offered 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; National Collegiate Funding will immediately
advise the Underwriters or the Underwriters’ counsel (i) when notice is received
from the SEC that any post-effective amendment to the Registration Statement
has
become or will become effective and (ii) of any order or communication
suspending or preventing, or threatening to suspend or prevent, the offer and
sale of the Offered 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 National
Collegiate Funding is advised thereof, and will use its best efforts to prevent
the issuance of any such order or communication and to obtain as soon as
possible its lifting, if issued.
National
Collegiate Funding shall file any Free Writing Prospectus prepared by National
Collegiate Funding (including the Definitive Free Writing Prospectus and the
Term Sheet), and any Issuer Information contained in any Free Writing Prospectus
provided to it by each Underwriter under Section 4(c)(5), not later than the
date of first use of the Free Writing Prospectus, except that:
Any
Free
Writing Prospectus or portion thereof that contains only (A) a description
of
the final terms of the Offered Notes after such terms have been established
for
all classes of Offered Notes shall be filed by National Collegiate Funding
within two days of the later of the date such final terms have been established
for all classes of Offered Notes and the date of first use and (B) a description
of the terms of the Offered Notes that does not reflect the final terms after
they have been established for all classes of all Offered Notes is not required
to be filed; and
Notwithstanding
clause (1) above, any Free Writing Prospectus or portion thereof required to
be
filed that contains only information of a type included within the definition
of
ABS Informational and Computational Materials, shall be filed by National
Collegiate Funding within the later of two business days after the Underwriter
first provides this information to investors and the date upon which National
Collegiate Funding is required to file the Prospectus Supplement with the
Commission pursuant to Rule 424(b)(3) of the Act.
provided
further, that prior to such use of any Free Writing Prospectuses by National
Collegiate Funding, the Underwriter must comply with its obligations pursuant
to
Section 4(c) and that National Collegiate Funding shall not be required to
file
any Free Writing Prospectus that does not contain substantive changes from
or
additions to a Free Writing Prospectus previously filed with the Commission.
National Collegiate Funding will not disseminate to any potential investor
any
information relating to the Offered Notes that constitutes a “written
communication” within the meaning of Rule 405 under the Act, other than the
Pricing Information Package and the Prospectus unless National Collegiate
Funding has obtained the prior consent of the Underwriters.
If,
at
any time when the Prospectus relating to the Offered 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, National Collegiate Funding 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 7 hereof.
If,
subsequent to the Contract of Sale and at or prior to the Closing Date, National
Collegiate Funding determines or becomes aware or is advised by an Underwriter
that any Written Communication (including without limitation any Free Writing
Prospectus) or oral statement contains an untrue statement of material fact
or
omits to state a material fact necessary to make the statements, in light of
the
circumstances under which they were made, not misleading at the time that a
Contract of Sale was entered into with any investor, when considered in
conjunction with all information conveyed at the time of Contract of Sale,
National Collegiate Funding shall immediately notify the Underwriters and shall,
if requested by an Underwriter, prepare and deliver corrective information
approved by the Underwriters that corrects such misstatements or omissions
(“Corrective Information”) to the Underwriters. Each Underwriter dealing with an
investor who had received defective information shall deliver such Corrective
Information, to any person with whom a Contract of Sale was entered into by
that
Underwriter, and such information shall provide any such person with the
following:
adequate
disclosure of the contractual arrangement;
adequate
disclosure of the person’s rights under the existing Contract of Sale at the
time termination is sought;
adequate
disclosure of the new information that is necessary to correct the misstatements
or omissions in the information given at the time of the original Contract
of
Sale; and
a
meaningful ability to elect to terminate or not terminate the prior Contract
of
Sale and to elect to enter into or not enter into a new Contract of
Sale.
After
the
preceding has been completed, the Corrective Information shall then be deemed
to
supplement the Definitive Free Writing Prospectus for all purposes of this
Agreement and the date of the Contract of Sale shall be deemed to be the date
that the new Contracts of Sale were entered into. To the extent that the
Underwriter incurs any costs to the investor in connection with any such
termination or reformation of a Contract of Sale, National Collegiate Funding
shall reimburse the Underwriter for such costs except to the extent that the
defective information was of a type described under Section 11.
National
Collegiate Funding will immediately inform the Underwriters (i) of the receipt
by National Collegiate Funding of any communication from the Commission or
any
state securities authority concerning the offering or sale of the Offered Notes,
and (ii) of the commencement of any lawsuit or proceeding to which National
Collegiate Funding is a party relating to the offering or sale of the Offered
Notes.
National
Collegiate Funding 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, the Pricing Information
Package, and all amendments and supplements to such documents relating to the
Offered Notes, in each case in such quantities as the Underwriters may
reasonably request.
No
amendment or supplement will be made to the Registration Statement, the Pricing
Information Package or Prospectus which the Underwriters shall not previously
have been advised or to which it shall reasonably object after being so
advised.
National
Collegiate Funding will cooperate with the Underwriters and with their counsel
in connection with the qualification of, or procurement of exemptions with
respect to, the Offered 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 National Collegiate Funding
be
obligated to qualify to do business in any jurisdiction where it is not now
so
qualified or to take any action which would subject it to service of process
in
suits, other than those arising out of the offering or sale of the Offered
Notes, in any jurisdiction where it is not now so subject.
National
Collegiate Funding consents to the use, in accordance with the securities or
Blue Sky laws of such jurisdictions in which the Offered Notes are offered
by
the Underwriters and by dealers, of the Prospectus furnished by National
Collegiate Funding.
To
the
extent, if any, that the rating or ratings provided with respect to the Offered
Notes by the rating agency or agencies that initially rate the Offered Notes
is
conditional upon the furnishing of documents or the taking of any other actions
by National Collegiate Funding, National Collegiate Funding shall cause to
be
furnished such documents and such other actions to be taken.
So
long
as any of the Offered Notes are outstanding, National Collegiate Funding will
furnish to the Underwriters (i) as soon as available, a copy of each document
relating to the Offered Notes required to be filed with the SEC pursuant to
the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any rule or
regulation thereunder, and (ii) such other information concerning National
Collegiate Funding as the Underwriters may request from time to
time.
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 9 or because of
the
occurrence of events specified in clauses (a) (ii), (iii) or (iv) of Section
10
hereof) or if this Agreement shall be terminated by the Underwriters because
of
any failure or refusal on the part of National Collegiate Funding to comply
with
the terms or fulfill any of the conditions of this Agreement, National
Collegiate Funding agrees to reimburse the Underwriters for all out-of-pocket
expenses (including fees and expenses of their counsel) reasonably incurred
by
it in connection herewith, but without any further obligation on the part of
National Collegiate Funding for loss of profits or otherwise.
The
net
proceeds from the sale of the Offered Notes hereunder will be applied
substantially in accordance with the description set forth in the
Prospectus.
Except
as
stated in this Agreement and in the Prospectus, National Collegiate Funding
has
not taken, nor will it take, directly or indirectly, any action designed to
or
that might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Offered Notes to facilitate the sale or resale
of the Offered Notes.
For
a
period from the date of this Agreement until the retirement of the Offered
Notes, the Trust will deliver to you the annual statements of compliance and
the
annual independent certified public accountants’ reports furnished to the
Indenture Trustee or National Collegiate Funding pursuant to the Servicing
Agreements as soon as such statements and reports are furnished to the Indenture
Trustee or National Collegiate Funding.
On
or
before the Closing Date, National Collegiate Funding shall mark its accounting
and other records, if any, relating to the Financed Student Loans and shall
cause the applicable Servicer to mark its computer records relating to the
Financed Student Loans to show the absolute ownership by the Trustee, of, and
the interest of the Trust in, the Financed Student Loans, and National
Collegiate Funding shall not take, or shall not permit any other person to
take,
any action inconsistent with the ownership of, and the interest of the Trust
in,
the Financed Student Loans, other than as permitted by the Basic
Documents.
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, National Collegiate
Funding will prepare, and file or transmit for filing with the Commission in
accordance with such Rule 430A and Rule 424(b) under the Act, copies of an
amended Prospectus containing all information so omitted.
As
soon
as practicable, but not later than 16 months after the date of this Agreement,
National Collegiate Funding will make generally available to its securityholders
an earnings statement covering a period of at least 12 months beginning after
the later of (i) the effective date of the Registration Statement, (ii) the
effective date of the most recent post-effective amendment to the Registration
Statement to become effective prior to the date of this Agreement and (iii)
the
date of the Trust’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.
National
Collegiate Funding will cooperate with the Underwriters in listing and
maintaining the Offered Notes on the Irish Stock Exchange.
National
Collegiate Funding acknowledges and agrees that:
the
Underwriters have been retained solely to act as underwriters in connection
with
the sale of the Offered Notes and that no fiduciary, advisory or agency
relationship between National Collegiate Funding and the Underwriters have
been
created in respect of any of the transactions contemplated by this Agreement,
irrespective of whether the Underwriters have advised or are advising National
Collegiate Funding on other matters;
the
prices of the Offered Notes set forth in this Agreement were established by
National Collegiate Funding following discussions and arms-length negotiations
with the Underwriters and National Collegiate Funding is capable of evaluating
and understanding and understands
and accepts the terms, risks and conditions of the transactions contemplated
by
this Agreement;
it
has been advised that the Underwriters and their affiliates are engaged in
a
broad range of transactions which may involve interests that differ from those
of National Collegiate Funding
and that the Underwriters have no obligation to disclose such interests and
transactions to National Collegiate Funding by virtue of any fiduciary, advisory
or agency relationship; and
it
waives, to the fullest extent permitted by law, any claims it may have against
the Underwriters for breach of fiduciary duty or alleged breach of fiduciary
duty and agrees that the
Underwriters shall have no liability (whether direct or indirect) to National
Collegiate Funding in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on behalf of or in right of National Collegiate
Funding, including stockholders, employees or creditors of National Collegiate
Funding.
Indemnification
and Contribution. 1)
National
Collegiate Funding agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and expenses (or
actions in respect thereof) arising out of or based upon any untrue statement
or
alleged untrue statement of a material fact contained in (i) 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, (ii) the Pricing
Information Package 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 or (iii) any Issuer
Information contained in a Free Writing Prospectus permitted under this
Agreement 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 National
Collegiate Funding 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 11 of this Agreement; provided,
however, that the indemnification contained in this paragraph (a) with respect
to any preliminary prospectus, the Pricing Information Package or Issuer
Information 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 Offered 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, the Pricing Information Package or Issuer Information was corrected
in Corrective Information which supersedes or supplements the Pricing
Information Package, and such Underwriter sold Offered Notes to that person
without sending or giving at or prior to the written confirmation of such sale
or of any reformation of contract of such sale, as applicable, a copy of any
Corrective Information which supersedes or supplements the Pricing Information
Package if National Collegiate Funding has furnished sufficient copies thereof
to such Underwriter at a time reasonably prior to the date such Offered Notes
were sold to such person. The foregoing indemnity agreement shall be in addition
to any liability which National Collegiate Funding may otherwise
have.
National
Collegiate Funding will indemnify and hold harmless each Underwriter against
any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out
of or are based upon failure of National Collegiate Funding, in its capacity
as
the depositor of the Trust, to maintain its status as an eligible issuer within
the meaning of Rule 405 under the Act as of the date hereof or as of the time
set forth in Rule 164(h)(2) of the Act or its failure to file, pursuant to
Rule
433 under the Act, any Free Writing Prospectus with the Commission no later
than
the date of first use of any Free Writing Prospectus, and the Term Sheet with
the Commission no later than the date of first use of the Term Sheet, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred.
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
National Collegiate Funding, such Underwriter or such controlling person shall
promptly notify the parties against whom indemnification is being sought (the
“indemnifying parties”), but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party under Sections 6(a), 6(b) and 6(d) hereof, except to the extent that
the
indemnifying party is materially prejudiced by such omission, and in no event
shall the omission so to notify relieve National Collegiate Funding from any
liability which it may otherwise have. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party). The applicable
Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action, suit or proceeding and to participate
in
the defense thereof, but the fees and expenses of such counsel shall be at
the
expense of such Underwriter or such controlling person unless (i) the
indemnifying parties have agreed in writing to pay such fees and expenses,
(ii)
the indemnifying parties have failed to assume the defense and employ counsel,
or (iii) the named parties to any such action, suit or proceeding (including
any
impleaded parties) include both the Underwriter or such controlling person
and
the indemnifying parties and the Underwriter or such controlling person shall
have been advised by its counsel that there may be one or more legal defenses
available to it which are different from or additional to or in conflict with
those available to the indemnifying parties and in the reasonable judgment
of
such counsel it is advisable for the Underwriter or such controlling person
to
employ separate counsel (in which case the indemnifying party shall not have
the
right to assume the defense of such action, suit or proceeding on behalf of
the
Underwriter or such controlling person). It is understood, however, that the
indemnifying parties shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions, suits
or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
each Underwriter and controlling persons not having actual or potential
differing interests with such Underwriter or among themselves, which firm shall
be designated in writing by such Underwriter, and that all such fees and
expenses shall be reimbursed on a monthly basis as provided in paragraph (a)
hereof. An indemnifying party will not, without the prior written consent of
the
indemnified party, settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding
in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to
such
claim or action) unless such settlement, compromise or consent (i) includes
an
unconditional release of each indemnified party from all liability arising
out
of such claim, action, suit or proceeding and (ii) does not include a statement
as to, or an admission of fault, culpability or a failure to act by or on behalf
of an indemnified party.
Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
National Collegiate Funding and each of its directors and officers, and any
person who controls National Collegiate Funding within the meaning of Section
15
of the Act or Section 20 of the Exchange Act, to the same extent as the
indemnity from National Collegiate Funding to the Underwriters set forth in
paragraph (a) hereof, but only (i) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
information furnished in writing by such Underwriter expressly for use in the
Registration Statement, the Prospectus, the Pricing Information Package, or
any
amendment or supplement thereto, or any related preliminary prospectus therein
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, it being understood that the only such
information furnished by any Underwriter consists of the information described
as such in Section 11 of this Agreement and (ii) arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained
in
any Free Writing Prospectus not constituting an “issuer free writing prospectus”
(as defined in Rule 433 (h)(1) under the Act) and used by such indemnifying
Underwriter, or arising out of or based upon any omission or alleged omission
to
state therein a material fact necessary in order to make the statements therein
not misleading (except to the extent such untrue statement or omission or
alleged untrue statement or omission in such Free Writing Prospectus (w) is
based upon or results from errors, mistakes or omissions in information provided
by National Collegiate Funding to the Underwriters, (x) is contained in the
Issuer Information, the Prospectus, the Registration Statement or the Pricing
Information Package, (y) is the information in a Free Writing Prospectus
consisting of (A) the underwriting syndicate, syndicate structure and status
of
the subscriptions for each class of Offered Notes (both for the issuance as
a
whole and for each Underwriter’s specific retention), (B) weighted average
lives, expected maturities and/or payment windows, and benchmarks for each
class
of Offered Notes, (C) expected or actual pricing parameters for each class
of
Offered Notes, (D) expected settlement and non offered notes and/or (E) pricing
prepayment speed and/or (z) is contained in any Free Writing Prospectus approved
by National Collegiate Funding). If any action, suit or proceeding shall be
brought against National Collegiate Funding, any of its directors or officers,
or any such controlling person based on the Registration Statement, the
Prospectus, the Pricing Information Package, 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 (d), such
Underwriter shall have the rights and duties given to National Collegiate
Funding by paragraph (c) above (except that if National Collegiate Funding
shall
have assumed the defense thereof the Underwriter shall have the option to assume
such defense but shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof, but the fees and expenses of
such counsel shall be at such Underwriter’s expense), and National Collegiate
Funding, its directors and officers, and any such controlling person shall
have
the rights and duties given to the Underwriters by paragraph (c) above. The
foregoing indemnity agreement shall be in addition to any liability which the
Underwriters may otherwise have.
If
the
indemnification provided for in this Section 6 is unavailable to an indemnified
party under paragraphs (a), (b) or (d) 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 National Collegiate
Funding on the one hand and the applicable Underwriter on the other hand from
the offering of the Offered 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 National Collegiate Funding on the one
hand
and the applicable Underwriter on the other in connection with the statements
or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by National Collegiate Funding on the one hand and an
Underwriter on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Offered Notes (before deducting
expenses) received by the Trust and National Collegiate Funding bear to the
total underwriting discounts and commissions received by such Underwriter.
The
relative fault of National Collegiate Funding on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the
omission or alleged omission to state a material fact relates to information
supplied by National Collegiate Funding on the one hand or by an Underwriter
on
the other hand and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
National
Collegiate Funding and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6 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 (e) 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 (e) 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 6, 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 Offered Notes underwritten by such Underwriter exceed the sum of the
amount of any damages which such Underwriter has otherwise been required to
pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission and the amount of any damages such Underwriter has been required to
pay
under the Indemnity Agreement dated as of the date hereof among FMC and the
Underwriters. 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 (f) to contribute are several in
proportion to their respective underwriting obligations.
Any
losses, claims, damages, liabilities or expenses for which an indemnified party
is entitled to indemnification or contribution under this Section 6 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 6 and the representations and warranties
of
National Collegiate Funding and the Underwriters set forth in this Agreement
shall remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of the Underwriters, National Collegiate
Funding or any person controlling any of them or their respective directors
or
officers, (ii) acceptance of any Offered Notes and payment therefor hereunder,
and (iii) any termination of this Agreement. A successor to the Underwriters,
National Collegiate Funding or any person controlling any of them or their
respective directors or officers, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
6.
Conditions
of the Underwriters’ Obligations.
The
obligations of the Underwriters hereunder to purchase the Offered Notes shall
be
subject to the accuracy of the representations and warranties on the part of
National Collegiate Funding contained herein as of the date hereof and as of
the
Closing Date, to the accuracy of the statements of National Collegiate Funding
made in any certificates delivered pursuant to the provisions hereof, to the
performance by National Collegiate Funding of its obligations hereunder and
to
the following additional conditions:
All
actions required to be taken and all filings required to be made by National
Collegiate Funding under the Act prior to the sale of the Offered 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 National Collegiate Funding or the Underwriters, shall be
contemplated by the Commission.
Subsequent
to the 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 National Collegiate Funding, any Servicer or FMC not contemplated
by the Registration Statement, the Pricing Information Package and the
Prospectus, which in the opinion of the Underwriters, would materially adversely
affect the market for the Offered Notes, (ii) any downgrading in the rating
of
any debt securities of trusts sponsored by National Collegiate Funding, any
Servicer or FMC by any nationally recognized statistical rating organization
or
any public announcement that any such organization has under surveillance or
review its rating of any debt securities of trusts sponsored by National
Collegiate Funding, any Servicer or FMC (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, the Pricing Information Package
or
Prospectus untrue or which, in the opinion of National Collegiate Funding and
its counsel or the Underwriters and their counsel, requires any amendment to
or
change in the Registration Statement, the Pricing Information Package 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, the Pricing Information
Package or Prospectus to reflect such event or development would, in the opinion
of the Underwriters, materially adversely affect the market for the Offered
Notes.
The
Administrator shall have delivered to you a certificate, signed by an authorized
signatory and dated the Closing Date, to the effect that the signer of such
certificate has carefully examined the Basic Documents, the Pricing Information
Package and the Prospectus and that to the best of such signer’s knowledge: (x)
the representations and warranties in the Basic Documents of the Trust are
true
and correct in all material respects at and as of the Closing Date with the
same
effect as if made on the Closing Date and (y) the Trust has complied with all
the agreements and satisfied all the conditions on its part to be performed
or
satisfied at or prior to the Closing Date.
National
Collegiate shall have delivered to you a certificate, signed by an authorized
signatory and dated the Closing Date, to the effect that the signer of such
certificate has carefully examined the Basic Documents, the Pricing Information
Package and the Prospectus and that to the best of such signer’s knowledge: (x)
the representations and warranties in the Basic Documents of National Collegiate
are true and correct in all material respects at and as of the Closing Date
with
the same effect as if made on the Closing Date and (y) National Collegiate
has
complied with all the agreements and satisfied all the conditions on its part
to
be performed or satisfied at or prior to the Closing Date.
You
shall
have received opinions addressed to you of Xxxxxxx Xxxxxxxx & Xxxx LLP and
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx & Xxxx LLP, in their capacity as counsel to the
Trust, FMC, National Collegiate Funding and the Administrator, dated the Closing
Date, in form and substance satisfactory to you and your counsel with respect
to
the status of the Trust, FMC and the Administrator, to each of the Basic
Documents to which FMC, the Administrator and the Trust is a party and to the
validity of the Offered Notes and such related matters as you shall reasonably
request. In addition, you shall have received opinions addressed to you of
Xxxxxxx Xxxxxxxx & Xxxx LLP in form and substance satisfactory to you and
your counsel, concerning “true sale”, “first perfected security interest” and
“non-consolidation”, and certain other issues with respect to the transfer of
the Financed Student Loans from each Loan Originator to National Collegiate
Funding, from National Collegiate Funding to the Trust and from the Trust to
the
Indenture Trustee.
You
shall
have received an opinion addressed to you of Xxxxxxx Xxxxxxxx & Xxxx LLP,
dated the Closing Date, in form and substance satisfactory to you and your
counsel to the effect that the statements in the Prospectus and the Pricing
Information Package under the headings “U.S. 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.
You
shall
have received an opinion addressed to you of Xxxxxxx Xxxxxxxx & Xxxx LLP,
dated the Closing Date, in form and substance satisfactory to you and your
counsel with respect to the character of the Offered Notes for federal tax
purposes.
You
shall
have received from Xxxxxxx Xxxxxxxx & Xxxx LLP, a favorable opinion in form
reasonably satisfactory to you and dated the Closing Date:
with
respect to the Prospectus and the Pricing Information Package 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;
to
the
effect that no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States is required for the issuance of the Offered Notes and the sale of the
Offered Notes to you, or the consummation by the Trust of the other transactions
contemplated by the Basic Documents.
to
the
effect that nothing has come to their attention in the course of their
examination of the Registration Statement, the Pricing Information Package
and
the Prospectus or in their discussions or otherwise which would lead them to
believe that the Registration Statement, the Pricing Information Package and
the
Prospectus (except as to financial or statistical data contained therein and
the
information set forth under the headings “The Servicers” and “The Student Loan
Guarantor”) contained an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the Registration Statement, the
Pricing Information Package and the Prospectus not misleading.
You
shall
have received an opinion addressed to you of Stroock & Stroock & Xxxxx
LLP, in its capacity as your counsel, dated the Closing Date, in form and
substance satisfactory to you.
You
shall
have received an opinion addressed to you of Xxxxxxxx, Xxxxxx and Finger, P.A.,
counsel to the Trustee, in form and substance satisfactory to you and your
counsel.
You
shall
have received an opinion addressed to you of in-house counsel to PHEAA, in
form
and substance satisfactory to you and your counsel.
You
shall
have received an opinion addressed to you of in-house counsel to XXXX, in form
and substance satisfactory to you and your counsel.
You
shall
have received opinions addressed to you of Xxxxx Xxxxxxx, LLP, counsel to the
Indenture Trustee and the Back-up Administrator, dated the Closing Date and
in
form and substance satisfactory to you and your counsel.
You
shall
have received certificates addressed to you dated the Closing Date of any one
of
the Chairman of the Board, the President, any Executive Vice President, Senior
Vice President or Vice President, the Treasurer, any Assistant Treasurer, the
principal financial officer or the principal accounting officer of each of
PHEAA
and XXXX in which such officer shall state that, to the best of such officer’s
knowledge after reasonable investigation, that such officer has reviewed the
Prospectus and that the information therein regarding PHEAA, or XXXX, as
applicable, is fair and accurate in all material respects.
You
shall
have received evidence satisfactory to you that within ten days of the Closing
Date UCC-1 financing statements will be filed in the office of the Secretary
of
State of the State of Delaware and the Commonwealth of Massachusetts, reflecting
the grant of the security interest by the Trust in the Financed Student Loans
and the proceeds thereof to the Indenture Trustee.
All
the
representations and warranties of the Trust, FMC, National Collegiate Funding,
and the Administrator contained in this Agreement and the Basic Documents 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 an executive officer of FMC, National Collegiate Funding and the
Administrator to such effect.
National
Collegiate Funding and the Trust 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.
(i)
The
Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class
A-IO Notes shall be rated in the highest rating category of at least two of
the
following three rating agencies: Fitch, Inc. (“Fitch”), Standard & Poor’s
Ratings Services, a Division of the XxXxxx-Xxxx Companies, Inc. (“S&P) and
Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) (each of Fitch, S&P and Xxxxx’x,
a “Rating Agency” and collectively, the “Rating Agencies”), (ii) the Class B
Notes shall be rated in one of the two highest rating categories of at least
two
of the three Rating Agencies, (c) the Class C Notes shall be rated in one of
the
three highest rating categories of at least two of the three Rating Agencies
and
(d) the Class D Notes shall be rated in one of the four highest ratings
categories of at least two of the three Rating Agencies.
You
shall
have received certificates dated the Closing Date from officers of FMC, National
Collegiate Funding and the Administrator addressing such additional matters
as
you may reasonably request in form and substance satisfactory to you and your
counsel.
You
shall
have received such other opinions, certificates and documents as are required
under the Indenture as a condition to the issuance of the Offered
Notes.
You
shall
have received from each Servicer an officer’s certificate in form and substance
satisfactory to you and your counsel.
You
shall
have received a signed Indemnity Agreement from FMC in
form
and substance satisfactory to you and your counsel.
You
shall
have received from PricewaterhouseCoopers LLP, accountants to National
Collegiate Funding, a letter dated 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 in the Pricing Information Package and the Prospectus regarding
the
Financed Student Loans and setting forth the results of such specified
procedures.
You
shall
have received from PricewaterhouseCoopers LLP, accountants to XXXX, a letter
dated 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
in
the Pricing Information Package and the Prospectus regarding the unaudited
financial information of XXXX and setting forth the results of such specified
procedures.
You
shall
have received from the Indenture Trustee a certificate stating that any
information contained in the Statement of Eligibility and Qualification (Form
T-1), filed with the Registration Statement, is true, accurate and
complete.
If
any of
the conditions specified in this Section 7 shall not have been fulfilled in
all
material respects when and as provided in this Agreement, if National Collegiate
Funding is in breach of any covenants or agreements contained herein or if
any
of the opinions and certificates referred to above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in
form
and substance to you and your counsel, this Agreement and all your obligations
hereunder may be canceled by you at, or at any time prior to, the Closing Date
without liability of any party to any other party except as provided in Section
10(b). Notice of such cancellation shall be given to the National Collegiate
Funding in writing, or by telephone or facsimile transmission confirmed in
writing.
The
obligation of National Collegiate Funding to sell and to cause the Trust to
sell
the Offered Notes to you shall be subject to: (i) the accuracy of your
representations and warranties herein contained at and as of the Closing Date,
and (ii) your performance of all your obligations hereunder to be performed
at
or prior to the Closing Date.
Expenses.
National
Collegiate Funding agrees to pay or to otherwise cause the payment of the
following costs and expenses and all other costs and expenses incident to the
performance by it of its obligations hereunder: (i) the preparation, printing
or
reproduction of the Registration Statement, the Prospectus, the Pricing
Information Package and each amendment or supplement to any of them, this
Agreement, and each other Basic Document; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Registration Statement, the Prospectus,
the
Pricing Information Package 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 Offered Notes; (iii) the
preparation, printing, authentication, issuance and delivery of definitive
certificates for the Offered Notes; (iv) the printing (or reproduction) and
delivery of this Agreement, the preliminary and supplemental Blue Sky Memoranda
and all other agreements or documents printed (or reproduced) and delivered
in
connection with the offering of the Offered Notes; (v) qualification of the
Indenture under the Trust Indenture Act; (vi) the fees and disbursements of
(A)
the Trust’s counsel, (B) the Indenture Trustee and Back-up Administrator and
their counsel, (C) the Trustee and its counsel, (D) the Depository Trust Company
in connection with the book-entry registration of the Offered Notes, (E) KPMG
LLP and PricewaterhouseCoopers LLP; (vii) the fees charged by each of the rating
agencies for rating the Offered Notes, and (viii) the fees and expenses for
listing the Offered Notes on the Irish Stock Exchange.
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 National
Collegiate Funding, by notifying each of the Underwriters, or by the
Underwriters, by notifying National Collegiate Funding.
Any
notice under this Section 9 may be given by telecopy or telephone but shall
be
subsequently confirmed by letter.
Termination. 2)
This
Agreement shall be subject to termination in the Underwriters’ absolute
discretion by notice given to National Collegiate Funding prior to delivery
of
and payment for the Offered Notes, if prior to such time, (i) there shall have
occurred any adverse change, or any development involving a prospective adverse
change, in or affecting particularly the business, assets or properties of
National Collegiate Funding, XXXX, the Trust, or any of their affiliates; (ii)
trading of securities generally on the New York Stock Exchange or the American
Stock Exchange shall have been suspended or materially limited; (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; or (iv) there shall have occurred any material outbreak, escalation or
declaration of hostilities or other calamity or crisis or any material change
in
the financial, political, or economic conditions in the United States or
elsewhere, the effect of which on the financial markets of the United States
or
of the European Union is such as to make it, in the Underwriters’ judgment,
impracticable to market the Offered Notes on the terms and in the manner
contemplated in the Prospectus.
If
the
sale of the Offered Notes shall not be consummated because any condition to
your
obligations set forth in Section 7 is not satisfied or because of any refusal,
inability or failure on the part of National Collegiate Funding to perform
any
agreement herein or comply with any provision hereof other than by reason of
your default, National Collegiate Funding shall reimburse you for the reasonable
fees and expenses of your counsel and for such other out-of-pocket expenses
as
shall have been incurred by you in connection with this Agreement and the
proposed purchase of the Offered Notes, and upon demand National Collegiate
Funding shall pay the full amount thereof to you.
This
Agreement will survive delivery of and payment for the Offered Notes. The
provisions of Section 7 and this Section 10(c) shall survive the termination
or
cancellation of this Agreement.
Information
Furnished by the Underwriters.
The only
information furnished by or on behalf of an Underwriter as such information
is
referred to in Sections 3(b) and 6 hereof is the statements related to such
Underwriter set forth in the table and the second, third and fourth paragraphs
under the heading “Underwriting” in the Prospectus Supplement and the Pricing
Information Package.
Default
by One of the Underwriters.
If any
of the Underwriters shall fail on the Closing Date to purchase the Offered
Notes
which it is obligated to purchase hereunder (the “Defaulted Securities”), the
remaining Underwriters (the “Non-Defaulting Underwriters”) shall have the right,
but not the obligation, within one (1) Business Day thereafter, to make
arrangements to purchase all, but not less than all, of the Defaulted Securities
upon the terms herein set forth; if, however, the Non-Defaulting Underwriters
shall have not completed such arrangements within such one (1) Business Day
period, then this Agreement shall terminate without liability on the part of
the
Non-Defaulting Underwriters.
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 National Collegiate Funding
shall have the right to postpone the Closing Date for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements.
Survival
of Representations and Warranties.
The
respective indemnities, agreements, representations, warranties and other
statements of National Collegiate Funding or its officers and of the
Underwriters set forth in or made pursuant to this Agreement 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,
National Collegiate Funding or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment
for the Offered Notes.
Miscellaneous.
Except
as otherwise provided in Sections 6, 9 and 10 hereof, notice given pursuant
to
any provision of this Agreement shall be in writing and shall be delivered
(i)
if to National Collegiate Funding, at The Prudential Tower, 000 Xxxxxxxx Xxxxxx,
00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000, Attention: Controller; with a
copy
to First Marblehead Corporation, The Prudential Tower, 000 Xxxxxxxx Xxxxxx,
00xx
Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000 Attn: Xxxxxxx Xxxxx, (ii) if to FMC,
at
The Prudential Tower, 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000-0000, Attention: Controller; with a copy to First Marblehead Corporation,
The Prudential Tower, 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000-0000 Attn: Xxxxxxx Xxxxx, and (iii) if to the Underwriters, to the address
of the respective Underwriter set forth above.
This
Agreement has been and is made solely for the benefit of the Underwriters,
National Collegiate Funding, the Trust, their respective directors, officers,
managers, trustees and controlling persons referred to in Section 6 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 Offered Notes in his status as such purchaser.
Applicable
Law; Counterparts.
This
Agreement will be governed by and construed in accordance with the laws of
the
State of New York applicable to contracts made to be performed within the State
of New York without giving effect to choice of laws or conflict of laws
principles thereof.
Waiver
of Jury Trial.
National
Collegiate Funding and each of the Underwriters hereby irrevocably waives,
to
the fullest extent permitted by applicable law, any and all right to trial
by
jury in any legal proceeding arising out of or relating to this Agreement or
the
transactions contemplated hereby.
This
Agreement may be executed in any number of counterparts, each of which shall
for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument.
[Signature
page follows]
Please
confirm the foregoing correctly sets forth the agreement between National
Collegiate Funding and the Underwriters.
|
Very
truly yours,
|
|||||||||||||
|
By:
|
GATE
Holdings, Inc.,
as
sole Member
|
||||||||||||
|
By:
|
/s/
Xxxx X. Xxxxxxxxx
|
||||||||||||
|
Name:
|
Xxxx
X. Xxxxxxxxx
|
||||||||||||
|
Title:
|
Vice
President
|
||||||||||||
|
Confirmed
as of the date first above mentioned:
|
|||||||||||||
|
XXXXXXX,
XXXXX & CO.
|
|||||||||||||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
||||||||||||
|
Name:
|
Xxxxxx
X. Xxxxxx
|
||||||||||||
|
Title:
|
Managing
Director
|
||||||||||||
|
X.X.
XXXXXX SECURITIES INC.
|
|||||||||||||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
||||||||||||
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
||||||||||||
|
Title:
|
Managing
Director
|
||||||||||||
|
GREENWICH
CAPITAL MARKETS, INC.
|
|||||||||||||
|
By:
|
/s/
Xxxxxxx X. Xxx
|
||||||||||||
|
Name:
|
Xxxxxxx
X. Xxx
|
||||||||||||
|
Title:
|
Managing
Director
|
||||||||||||
|
Accepted
and Agreed as to Section 6:
|
|||||||||||||
|
THE
FIRST MARBLEHEAD CORPORATION
|
|||||||||||||
|
By:
|
/s/
Xxxx X. Xxxxxxxxx
|
||||||||||||
|
Name:
|
Xxxx
X. Xxxxxxxxx
|
||||||||||||
|
Title:
|
Senior
Vice President
|
||||||||||||
SCHEDULE
A
|
Class
A-1
Notes
|
Class
A-2
Notes
|
Class
A-3
Notes
|
Class
A-4
Notes
|
Class
A-IO Notes (notional amount)
|
Class
B
Notes
|
Class
C
Notes
|
Class
D
Notes
|
Total
|
|
|
Xxxxxxx,
Xxxxx & Co.
|
$142,500,000
|
$128,000,000
|
$67,000,000
|
$100,000,000
|
50%
|
$26,000,000
|
$25,500,000
|
$23,500,000
|
$512,500,000
|
|
X.X.
Xxxxxx Securities Inc.
|
$71,250,000
|
$64,000,000
|
$33,500,000
|
$50,000,000
|
25%
|
$13,000,000
|
$12,750,000
|
$11,750,000
|
$256,250,000
|
|
Greenwich
Capital Markets, Inc.
|
$71,250,000
|
$64,000,000
|
$33,500,000
|
$50,000,000
|
25%
|
$13,000,000
|
$12,750,000
|
$11,750,000
|
$256,250,000
|
|
Total
|
$285,000,000
|
$256,000,000
|
$134,000,000
|
$200,000,000
|
100%
|
$52,000,000
|
$51,000,000
|
$47,000,000
|
$1,025,000,000
|
|
Price
to
Public
|
Discounts
and Commissions
|
Proceeds
to the Trust
|
|
|
Class
A-1 Notes
|
100.0000%
|
0.2100%
|
99.7900%
|
|
Class
A-2 Notes
|
100.0000%
|
0.2600%
|
99.7400%
|
|
Class
A-3 Notes
|
100.0000%
|
0.3000%
|
99.7000%
|
|
Class
A-4 Notes
|
100.0000%
|
0.3200%
|
99.6800%
|
|
Class
A-IO Notes
|
28.3018%
|
0.1557%
|
28.1461%
|
|
Class
B Notes
|
100.0000%
|
0.3700%
|
99.6300%
|
|
Class
C Notes
|
100.0000%
|
0.4100%
|
99.5900%
|
|
Class
D Notes
|
100.0000%
|
0.7000%
|
99.3000%
|
|
Total
|
$1,078,255,680
|
|
SCHEDULE
B
|
|
|
List
of Servicing Agreements
|
|
|
1.
|
Pennsylvania
Higher Education Assistance Agency, dated as of September 28,
2006.
|
|
2.
|
CFS-SunTech
Servicing LLC, dated as of March 26, 2004.
|
|
3.
|
Great
Lakes Educational Loan Services, Inc., dated as of May 1,
2003.
|
|
4.
|
EdFinancial
Services, LLC (f/k/a Educational Services of America, Inc.), dated
as of
February 1, 2004.
|
|
5.
|
Nelnet
Loan Services, Inc. (f/k/a UNIPAC Service Corporation), dated as
of August
1, 2001.
|
|
6.
|
ACS
Education Services, Inc., dated as of March 1, 2005.
|
|
SCHEDULE
C
|
|
Note
Purchase Agreements
|
Each
of
the Note Purchase Agreements, as amended or supplemented, was entered into
by
and between The First Marblehead Corporation and:
|
•
|
Bank
of America, N.A., dated April 30, 2001, for loans that were originated
under Bank of America’s BAGEL Loan Program, XXXX Alternative Loan Program
and ISLP Loan Program.
|
|
•
|
Bank
of America, N.A., dated June 30, 2006, for loans that were originated
under Bank of America’s BAGEL Loan Program, XXXX Alternative Loan Program
and ISLP Loan Program.
|
|
•
|
Bank
of America, N.A., dated June 30, 2003, for loans that were originated
under Bank of America’s Direct to Consumer Loan Program.
|
|
•
|
Bank
of America, N.A., dated April 1, 2006, for loans that were originated
under Bank of America’s Direct to Consumer Loan Program.
|
|
•
|
Charter
One Bank, N.A., dated as of December 29, 2003 for loans that were
originated under Charter One’s AAA Southern New England Bank Loan
Program.
|
|
•
|
Charter
One Bank, N.A., dated October 31, 2003, for loans that were originated
under Charter One’s AES EducationGAIN Loan Program.
|
|
•
|
Charter
One Bank, N.A., dated May 15, 2002, for loans that were originated
under
Charter One’s CFS Direct to Consumer Loan Program.
|
|
•
|
Charter
One Bank, N.A., dated June 30, 2003, for loans that were originated
under
Charter One’s Citibank Education Assistance Loan Program.
|
|
•
|
Charter
One Bank, N.A., dated July 1, 2002, for loans that were originated
under
Charter One’s College Loan Corporation Loan Program.
|
|
•
|
Charter
One Bank, N.A., dated December 1, 2003, for loans that were originated
under Charter One’s Custom Educredit Loan Program.
|
|
•
|
Charter
One Bank, N.A., dated May 10, 2004, for loans that were originated
under
Charter One’s EdFinancial Loan Program.
|
|
•
|
Charter
One Bank, N.A., dated September 15, 2003, for loans that were originated
under Charter One’s Extra Credit II Loan Program (North Texas Higher
Education).
|
|
•
|
Charter
One Bank, N.A., dated September 20, 2003, for loans that were originated
under Charter One’s M&I Alternative Loan Program.
|
|
•
|
Charter
One Bank, N.A., dated November 17, 2003, for loans that were originated
under Charter One’s National Education Loan Program.
|
|
•
|
Charter
One Bank, N.A., dated May 15, 2002, for loans that were originated
under
Charter One’s NextStudent Alternative Loan Program.
|
|
•
|
Charter
One Bank, N.A., dated March 26, 2004, for loans that were originated
under
Charter One’s NextStudent Private Consolidation Loan Program.
|
|
•
|
Charter
One Bank, N.A., dated March 25, 2004, for loans that were originated
under
Charter One’s Astrive and AstriveAlliance Education Loan
Programs.
|
|
•
|
Charter
One Bank, N.A., dated May 15, 2003, for loans that were originated
under
Charter One’s WAMU Alternative Student Loan Program.
|
|
•
|
Charter
One Bank, N.A., dated February 15, 2005, for loans that were originated
under Charter One’s Referral Loan Program (including loans in the UPromise
Alternative Loan Program, Collegiate Solutions Alternative Loan Program,
College Board Alternative Loan Program, Axiom Alternative Loan Program,
and ThinkFinancial Alternative Loan Program).
|
|
•
|
Citizens
Bank of Rhode Island, dated April 30, 2004, for loans that were originated
under Citizens Bank of Rhode Island’s Alternative Loan Program, Compass
Bank Alternative Loan Program, FinanSure Alternative Loan Program,
Navy
Federal Alternative Loan Program, and Xanthus Alternative Loan
Program.
|
|
•
|
Citizens
Bank of Rhode Island, dated October 1, 2002, for loans that were
originated under Citizens Bank of Rhode Island’s Penn State Undergraduate
Loan Program.
|
|
•
|
First
National Bank Northeast, dated August 1, 2001, for loans that were
originated under First National Bank Northeast’s Nelnet Undergraduate
Alternative Loan Program.
|
|
•
|
GMAC
Bank, dated May 30, 2003, for loans that were originated under GMAC
Bank’s
Alternative Loan Program
|
|
•
|
HSBC
Bank USA, National Association, dated April 17, 2002, as amended
on June
2, 2003 and August 1, 2003, for loans that were originated under
the HSBC
Loan Program.
|
|
•
|
The
Huntington National Bank, dated May 20, 2003, for loans that were
originated under The Huntington National Bank’s Huntington Bank Education
Loan Program.
|
|
•
|
JPMorgan
Chase Bank, N.A,, (successor to Bank One, N.A.), dated May 1, 2002,
for
loans that were originated under Bank One’s CORPORATE ADVANTAGE Loan
Program, EDUCATION ONE Loan Program, and Campus One Loan
Program.
|
|
•
|
KeyBank,
dated May 12, 2006, for loans that were originated under KeyBank’s Private
Education Loan Program.
|
|
•
|
Manufacturers
and Traders Trust Company, dated April 29, 2004, for loans that were
originated under Manufacturers and Traders Trust Company’s Alternative
Loan Program.
|
|
•
|
National
City Bank, dated November 13, 2002, for loans that were originated
under
National City Bank’s National City Loan Program.
|
|
•
|
National
City Bank, dated July 21, 2006, for loans that were originated under
National City Bank’s Referral Loan Program, including the Astute Private
Loan Program.
|
|
•
|
PNC
Bank, N.A., dated April 22, 2004, for loans that were originated
under PNC
Bank’s Alternative Conforming Loan Program, Brazos Alternative Loan
Program, Edvisors Alternative Loan Program, GE Money Bank Alternative
Loan
Prorgam, Old National Bank Alternative Loan Program, Regions Bank
Alternative Loan Program, and Varsity Group Alternative Loan
Program.
|
|
•
|
Sovereign
Bank, dated April 30, 2004, for loans that were originated under
Sovereign
Bank’s Alternative Loan Program.
|
|
•
|
SunTrust
Bank, dated March 1, 2002, for loans that were originated under SunTrust
Bank’s SunTrust Alternative Loan Program.
|
|
•
|
TCF
National Bank, dated July 22, 2005, for loans that were originated
under
TCF National Bank’s Alternative Loan Program.
|
|
•
|
U.S.
Bank, N.A., dated May 1, 2005, for loans that were originated under
U.S
Bank’s Alternative Loan Program.
|
EXHIBIT
I
ISSUER
INFORMATION*
In
the
case of asset-backed issuers certain information comprehended within the
definition of ABS informational and computational material is analogous to
the
term of securities and is therefore issuer information. For example, we would
expect that the following categories of such material, which are derived from
the definition of ABS informational and computational materials, are generally
issuer information:
(1) Structural
information-factual
information regarding the asset-backed securities being offered and the
structure and basic parameters of the securities, such as the number of classes,
seniority, payment priorities, terms of payment, the tax, ERISA or other legal
conclusions of counsel, and descriptive information relating to each class
(e.g., principal amount, coupon, minimum denomination, price or anticipated
price, yield, weighted average life, credit enhancements, anticipated ratings,
and other similar information relating to the proposed structure of the
offering);
(2) Collateral
information-factual
information regarding the pool assets underlying the asset-backed securities,
including origination, acquisition and pool selection criteria, information
regarding any prefunding or revolving period applicable to the offering,
information regarding significant obligors, data regarding the contractual
and
related characteristics of the underlying pool assets (e.g., weighted average
coupon, weighted average maturity, delinquency and loss information and
geographic distribution) and other factual information concerning the parameters
of the asset pool appropriate to the nature of the underlying assets, such
as
the type of assets comprising the pool and the programs under which the loans
were originated;
(3) Key
parties information-identification
of key parties to the transaction, such as servicers, trustees, depositors,
sponsors, originators and providers of credit enhancement or other support,
including information about any such party;
(4) Static
pool data-static
pool data, as referenced in Item 1105 of Regulation AB [17 CFR 229.1105], such
as for the sponsor’s and/or servicer’s portfolio, prior transactions or the
asset pool itself; and
(5) Issuer
computational material-to
the
extent that the information is provided by the issuer, depositor, affiliated
depositor, or sponsor, statistical information displaying for a particular
class
of asset-backed securities the yield, average life, expected maturity, interest
rate sensitivity, cash flow characteristics, total rate of return, option
adjusted spread or other financial or statistical information related to the
class or classes under specified prepayment, interest rate, loss or other
hypothetical scenarios. (Where such information is prepared by an underwriter
or
dealer, it is not issuer information, even when derived from issuer
information.)
__________________________________
* *
Footnote 271 from Securities Offering Reform adopting release (SEC Release
No.
33-8591); bold headings added for convenience of reference.
EXHIBIT
II
European
Economic Area
In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a Relevant Member State), each
Underwriter severally has represented and agreed that with effect from and
including the date on which the Prospectus Directive is implemented in that
Relevant Member State (the Relevant Implementation Date) it has not made and
will not make an offer of notes to the public in that Relevant Member State
prior to the publication of a prospectus in relation to the notes which has
been
approved by the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, all in accordance with the
Prospectus Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of notes to the public in that
Relevant Member State at any time:
|
(a)
|
to
legal entities which are authorized or regulated to operate in the
financial markets or, if not so authorized or regulated, whose corporate
purpose is solely to invest in
securities;
|
|
(b)
|
to
any legal entity which has two or more of (1) an average of at least
250
employees during the last financial year; (2) a total balance sheet
of
more than €43,000,000 and (3) an annual net turnover of more than
€50,000,000, as shown in its last annual or consolidated accounts;
or
|
|
(c)
|
in
any other circumstances which do not require the publication by the
Trust
of a prospectus pursuant to Article 3 of the Prospectus
Directive.
|
For
the
purposes of this provision, the expression an “offer of notes to the public” in
relation to any notes in any Relevant Member State means the communication
in
any form and by any means of sufficient information on the terms of the offer
and the notes to be offered so as to enable an investor to decide to purchase
or
subscribe the notes, as the same may be varied in that Member State by any
measure implementing the Prospectus Directive in that Member State and the
expression Prospectus Directive means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
United
Kingdom
Each
Underwriter severally has represented and agreed that:
|
(a)
|
it
has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement
to
engage in investment activity (within the meaning of Section 21 of
the
Financial Services and Markets Act) received by it in connection
with the
issue or sale of the notes in circumstances in which Section 21(1)
of the
Financial Services and Markets Act does not apply to the Issuer;
and
|
|
(b)
|
it
has complied and will comply with all applicable provisions of the
Financial Services and Markets Act with respect to anything done
by it in
relation to the notes in, from or otherwise involving the United
Kingdom.
|
