Exhibit 1.1
Form of Underwriting Agreement
College Loan Corporation Trust I
$[_____________]
Student Loan Asset-Backed Notes
Series [____]-[__]
UNDERWRITING AGREEMENT
[_________] [___], [____]
[Underwriter]
Ladies and Gentlemen:
College Loan Corporation Trust I, a Delaware statutory trust (the
“Company”) proposes to sell to [Underwriter] (the
“Underwriter” which term shall include you whether acting alone in the
sale of the Notes or as a member of an underwriting syndicate), pursuant to the
terms of this Underwriting Agreement, [$__________] aggregate principal amount
of the Company’s Student Loan Asset-Backed Notes, Series [____]-[__] (the
“Notes”) in the classes and initial principal amounts set forth on
Schedule A hereto. Deutsche Bank Trust Company Americas, a national banking
association, will act as eligible lender trustee on behalf of the Company (the
“Eligible Lender Trustee”). The Notes will be issued under an
Indenture of Trust, dated as of March 1, 2002, as may be amended from time
to time (the “Indenture”), among the Company, the Eligible Lender
Trustee and Deutsche Bank Trust Company Americas, a New York banking
corporation, as indenture trustee (the “Trustee”). Upon issuance, the
Notes will be secured by, among other things, Financed Student Loans (as defined
in the Indenture) pledged to the Trustee and described in the Prospectus (as
defined in Section 3 below). The Financed Student Loans will initially be
serviced by [________ (“___”),__________________ (“______”),
______________ (“_______”) and _________________
(“_______”)] (each a “Servicer” and collectively, the
“Servicers”) pursuant to separate servicing agreements (each a
“Servicing Agreement” and collectively, the “Servicing
Agreements”), each between the applicable Servicer and the Company.
Certain of the Financed Student Loans will be originated by [________________],
as eligible lender trustee (the “[___________] Eligible Lender
Trustee”) for [________________] ([“_______”]), a [__________]
corporation and the transferor to the Company. The Financed Student Loans so
originated will be sold to the Eligible Lender Trustee (as legal owner) and the
Company (as beneficial owner) pursuant to a [________________]dated as of [____
__, ____] (the “Student Loan Purchase Agreement”) among [__________],
the [__________] Eligible Lender Trustee, the Company and the Eligible Lender
Trustee.
Administrative services for the Company will be performed by College Loan
Corporation (“College Loan” and in its capacity as administrator, the
“Administrator”). Such services will be provided pursuant to an
Administration Agreement dated as of March 1, 2002, as may be amended from
time to time (the “Administration Agreement”) among the Company,
Wilmington Trust Company, as Delaware Trustee (the “Delaware
Trustee”), the Trustee, the Eligible Lender Trustee and the Administrator.
This Agreement, the Indenture, the Student Loan Purchase Agreement, the
Servicing Agreements, the Administration Agreement, one or more Custody
Agreements among the applicable Servicer, the Company, the Eligible Lender
Trustee and the Trustee, the Amended and Restated Trust Agreement dated as of
March 1, 2002 between College Loan Special Purpose Corporation
(“SPC”) and the Delaware Trustee [the __________ dated as of _______
__, ____ between/among ________, ________ and ________] and the [Auction Agent
Agreement dated as of ___________ _, ____ among the Trustee, the Company and
[________________] (the “Auction Agent”)], are collectively referred
to herein as the “Basic Documents.”
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Indenture or the Prospectus.
The Company wishes to confirm as follows this agreement with the Underwriter in
connection with the purchase and resale of the Notes.
1. Agreements To Sell, Purchase and Resell.
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(a) The Company hereby agrees, subject to all the terms and conditions set forth
herein, to sell to the Underwriter and, upon the basis of the representations,
warranties and agreements of the Company herein contained and subject to all the
terms and conditions set forth herein, the Underwriter agrees to purchase from
the Company, such principal amount of each Class of the Notes at such respective
purchase prices as are set forth next to the name of the Underwriter on Schedule
A hereto. |
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(b) It is understood that the Underwriter proposes to offer the Notes for sale
to the public (which may include selected dealers) as set forth in the
Prospectus. |
2. Delivery of the Notes and Payment
Therefor. Delivery to the Underwriter of and payment for the Notes shall be
made at the office of [_________________], [__________], [_________], at [_:00
_.m.], [__________] time, on [_______ ___, ____] (the "Closing Date"). The place
of such closing and the Closing Date may be varied by agreement between the
Underwriter and the Company.
The Notes will be delivered to the Underwriter against payment of the purchase
price therefor to the Company in Federal Funds, by wire transfer to an account
at a bank acceptable to the Underwriter, or such other form of payment as to
which the parties may agree. Unless otherwise agreed to by the Company and the
Underwriter, each Class of Notes will be evidenced by a single global security
in definitive form deposited with the Trustee as custodian for DTC and/or by
additional definitive securities, and will be registered, in the case of the
global Classes of Notes, in the name of Cede & Co. as nominee of The
Depository Trust Company (“DTC”), and in the other cases, in such
names and in such denominations as the Underwriter shall request prior to
[_:00 _.m.]., [__________] time, no later than the business day preceding
the Closing Date. The Notes to be delivered to the Underwriter shall be made
available to the Underwriter in [____________], [_________], for inspection and
packaging not later than [_:00 _.m.], [____________] time, on the business
day next preceding the Closing Date.
3. Representations and Warranties of the Company.
The Company represents and warrants to the Underwriter that:
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(a) A registration statement on Form S-3 (No. [__________]), including a
prospectus and such amendments thereto as may have been required to the date
hereof, relating to the Notes and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the
"Act"), has been filed with the Securities and Exchange Commission (the "SEC" or
the "Commission") and such registration statement, as amended, has become
effective; such registration statement, as amended, and the prospectus relating
to the sale of the Notes offered thereby constituting a part thereof, as from
time to time amended or supplemented (including the base prospectus, any
prospectus supplement filed with the Commission pursuant to Rule 424(b) under
the Act, the information deemed to be a part thereof pursuant to Rule 430A(b)
under the Act, and the information incorporated by reference therein) are
respectively referred to herein as the "Registration Statement" and the
"Prospectus" respectively; and the conditions to the use of a registration
statement on Form S-3 under the Act, as set forth in the General Instructions to
Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with
respect to the Registration Statement. |
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(b) On the effective date of the Registration Statement, the Registration
Statement and the Prospectus conformed in all respects to the requirements of
the Act, the rules and regulations of the SEC (the "Rules and Regulations") and
the Trust Indenture Act of 1939, as amended, and the rules and regulations
thereunder (the "Trust Indenture Act"), and, except with respect to information
omitted pursuant to Rule 430A of the Act, did not include any untrue statement
of a material fact or, in the case of the Registration Statement, omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading and, in the case of the Prospectus, omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and on the date
of this Agreement and on the Closing Date, the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act, the
Rules and Regulations and the Trust Indenture Act, and neither of such documents
included or will include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the foregoing does
not apply to statements in or omissions from the Registration Statement or the
Prospectus based upon written information furnished to the Company by the
Underwriter, specifically for use therein. |
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(c) The Commission has not issued and, to the best knowledge of the Company, is
not threatening to issue any order preventing or suspending the use of the
Registration Statement. |
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(d) As of the Closing Date, each consent, approval, authorization or order of,
or filing with, any court or governmental agency or body which is required to be
obtained or made by the Company or its affiliates for the consummation of the
transactions contemplated by this Agreement shall have been obtained, except as
otherwise provided in the Basic Documents. |
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(e) The Indenture has been duly and validly authorized by the Company and, upon
its execution and delivery by the Company and assuming due authorization,
execution and delivery by the Trustee, will be a valid and binding agreement of
the Company, enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights generally and conform in all material respects to the
description thereof in the Prospectus. The Indenture has been duly qualified
under the Trust Indenture Act with respect to the Notes. |
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(f) The Notes have been duly authorized by the Company and the Notes to be
issued on the Closing Date, when executed by the Company and authenticated by
the Trustee in accordance with the Indenture, and delivered to the Underwriter
against payment therefor in accordance with the terms hereof, will have been
validly issued and delivered, and will constitute valid and binding obligations
of the Company entitled to the benefits of the Indenture and enforceable in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, moratorium, fraudulent conveyance or other similar laws
relating to or affecting creditors' rights generally and court decisions with
respect thereto, and the Notes will conform in all material respects to the
description thereof in the Prospectus. |
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(g) The Company is a statutory trust duly organized, validly existing and in
good standing under the laws of the State of Delaware with full power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus Supplement and as conducted on the date hereof,
and is duly registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification, except
where the failure so to register or qualify does not have a material adverse
effect on the condition (financial or other), business, prospects, properties,
net worth or results of operations of the Company. |
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(h) Other than as contemplated by this Agreement or as disclosed in the
Prospectus, there is no broker, finder or other party that is entitled to
receive from the Company or any of its affiliates any brokerage or finder's fee
or other fee or commission as a result of any of the transactions contemplated
by this Agreement. |
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(i) There are no legal or governmental proceedings pending or threatened or, to
the knowledge of the Company contemplated, against the Company, or to which the
Company or any of its properties is subject, that are not disclosed in the
Prospectus and which, if adversely decided, would individually or in the
aggregate have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company, or would
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement and the other Basic Documents or otherwise
materially affect the issuance of the Notes or the consummation of the
transactions contemplated hereby or by the Basic Documents. |
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(j) Neither the offer, sale or delivery of the Notes by the Company nor the
execution, delivery or performance of this Agreement or the Basic Documents by
the Company, nor the consummation by the Company of the transactions
contemplated hereby or thereby (i) requires or will require any consent,
approval, authorization or other order of, or registration or filing with, any
court, regulatory body, administrative agency or other governmental body, agency
or official (except for compliance with the securities or Blue Sky laws of
various jurisdictions, the qualification of the Indenture under the Trust
Indenture Act and such other consents, approvals or authorizations as shall have
been obtained prior to the Closing Date) or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the
organizational documents of the Company; or (ii) conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under, in any
material respect, any agreement, indenture, lease or other instrument to which
the Company is a party or by which the Company or any of its respective
properties may be bound, or violates or will violate in any material respect any
statute, law, regulation or filing or judgment, injunction, order or decree
applicable to the Company or any of its respective properties, or will result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to the terms of any agreement or instrument to
which it is a party or by which it may be bound or to which any of its
properties is subject other than as contemplated by the Basic
Documents. |
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(k) The Company has all requisite power and authority to execute, deliver and
perform its obligations under this Agreement and the other Basic Documents to
which it is a party; the execution and delivery of, and the performance by the
Company of its obligations under this Agreement and the other Basic Documents to
which it is a party have been duly and validly authorized by the Company and
this Agreement and the other Basic Documents have been duly executed and
delivered by the Company and constitute the valid and legally binding agreements
of the Company, enforceable against the Company in accordance with their
respective terms, except as the enforcement hereof and thereof may be limited by
bankruptcy, insolvency, moratorium, fraudulent conveyance or other similar laws
relating to or affecting creditors' rights generally and court decisions with
respect thereto and subject to the applicability of general principles of
equity, and except as rights to indemnity and contribution hereunder and
thereunder may be limited by federal or state securities laws or principles of
public policy. |
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(l) The assignment and delivery of Financed Student Loans by [__________] and
the [__________] Eligible Lender Trustee to the Company and the Eligible Lender
Trustee, and the assignment of the Financed Student Loans by the Company and the
Eligible Lender Trustee to the Trustee pursuant to the Indenture, will vest in
the Trustee, for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance. |
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(m) The Company is not, nor as a result of the issuance and sale of the Notes as
contemplated hereunder will it become, subject to registration as an "investment
company" under the Investment Company Act of 1940, as amended. |
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(n) The representations and warranties made by the Company in any Basic Document
to which the Company is a party and made in any Officer's Certificate of the
Company will be true and correct at the time made and on and as of the
applicable Closing Date. |
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(o) Since the date of the Prospectus, no material adverse change or any
development involving a prospective material adverse change in, or affecting
particularly the business or properties of, the Company has occurred. |
4. Agreements of the Company. The Company agrees
with the Underwriter as follows:
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(a) The Company will prepare a supplement to the Prospectus setting forth the
amount of the Notes covered thereby and the terms thereof not otherwise
specified in the Prospectus, the price at which the Notes are to be purchased by
the Underwriter, either the initial public offering price or the method by which
the price at which the Notes are to be sold will be determined, the selling
concessions and reallowances, if any, and such other information as the
Underwriter and the Company deem appropriate in connection with the offering of
the Notes, and the Company will timely file such supplement to the prospectus
with the SEC pursuant to Rule 424(b) under the Act, but the Company will not
file any amendments to the Registration Statement as in effect with respect to
the Notes or any amendments or supplements to the Prospectus, unless it shall
first have delivered copies of such amendments or supplements to the
Underwriter, with reasonable opportunity to comment on such proposed amendment
or supplement or if the Underwriter shall have reasonably objected thereto
promptly after receipt thereof; the Company will immediately advise the
Underwriter or the Underwriter's counsel (i) when notice is received from the
SEC that any post-effective amendment to the Registration Statement has become
or will become effective; and (ii) of any order or communication suspending or
preventing, or threatening to suspend or prevent, the offer and sale of the
Notes or of any proceedings or examinations that may lead to such an order or
communication, whether by or of the SEC or any authority administering any state
securities or Blue Sky law, as soon as the Company is advised thereof, and will
use its best efforts to prevent the issuance of any such order or communication
and to obtain as soon as possible its lifting, if issued. |
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(b) If, at any time when the Prospectus relating to the Notes is required to be
delivered under the Act, any event occurs as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or
if it is necessary at any time to amend or supplement the Prospectus to comply
with the Act or the Rules and Regulations, the Company promptly will notify the
Underwriter 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 Underwriter's consent to, nor the Underwriter's delivery of, any
such amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 6 hereof. |
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(c) The Company will immediately inform the Underwriter (i) of the receipt by
the Company of any communication from the SEC or any state securities authority
concerning the offering or sale of the Notes; and (ii) of the commencement of
any lawsuit or proceeding to which the Company is a party relating to the
offering or sale of the Notes. |
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(d) The Company will furnish to the Underwriter, without charge, copies of the
Registration Statement (including all documents and exhibits thereto or
incorporated by reference therein), the Prospectus, and all amendments and
supplements to such documents relating to the Notes, in each case in such
quantities as the Underwriter may reasonably request. |
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(e) No amendment or supplement will be made to the Registration Statement or
Prospectus which the Underwriter shall not previously have been advised or to
which it shall reasonably object after being so advised. |
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(f) The Company will cooperate with the Underwriter and with their counsel in
connection with the qualification of, or procurement of exemptions with respect
to, the Notes for offering and sale by the Underwriter and by dealers under the
securities or Blue Sky laws of such jurisdictions as the Underwriter may
designate and will file such consents to service of process or other documents
necessary or appropriate in order to effect such qualification or exemptions;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to service of process in suits, other than those
arising out of the offering or sale of the Notes, in any jurisdiction where it
is not now so subject. |
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(g) The Company consents to the use, in accordance with the securities or Blue
Sky laws of such jurisdictions in which the Notes are offered by the Underwriter
and by dealers, of the Prospectus furnished by the Company. |
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(h) To the extent, if any, that the rating or ratings provided with respect to
the Notes by the rating agency or agencies that initially rate the Notes is
conditional upon the furnishing of documents or the taking of any other actions
by the Company, the Company shall cause to be furnished such documents and such
other actions to be taken. |
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(i) So long as any of the Notes are outstanding, the Company will furnish to the
Underwriter (i) as soon as available, a copy of each document relating to the
Notes required to be filed with the SEC pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), or any order of the SEC thereunder;
and (ii) such other information concerning the Company as the Underwriter may
request from time to time. |
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(j) If this Agreement shall terminate or shall be terminated after execution and
delivery pursuant to any provisions hereof (otherwise than by notice given by
the Underwriter terminating this Agreement pursuant to Section 8 or Section 9
hereof) or if this Agreement shall be terminated by the Underwriter because of
any failure or refusal on the part of the Company to comply with the terms or
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
the Underwriter for all out of pocket expenses (including fees and expenses of
their counsel) reasonably incurred by it in connection herewith, but without any
further obligation on the part of the Company for loss of profits or otherwise. |
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(k) The net proceeds from the sale of the Notes hereunder will be applied
substantially in accordance with the description set forth in the Prospectus. |
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(l) Except as stated in this Agreement and in the Prospectus, the Company has
not taken, nor will it take, directly or indirectly, any action designed to or
that might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Notes to facilitate the sale or resale of the
Notes. |
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(m) On or before the Closing Date, the Company shall ▇▇▇▇ its accounting and
other records, if any, relating to the Financed Student Loans and shall cause
each Servicer to ▇▇▇▇ their respective computer records relating to the Financed
Student Loans to show the absolute ownership by the Eligible Lender Trustee, as
eligible lender of, and the interest of the Company in, the Financed Student
Loans, and the Company shall not take, or shall permit any other person to take,
any action inconsistent with the ownership of, and the interest of the Company
in, the Financed Student Loans, other than as permitted by the Basic Documents. |
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(n) For the period beginning on the date of this Agreement and ending 90 days
hereafter, none of the Company and any entity affiliated, directly or
indirectly, with the Company will, without the prior written notice to the
Underwriter, offer to sell or sell notes (other than the Notes) collateralized
by FFELP Loans. |
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(o) If, at the time the Registration Statement became effective, any information
shall have been omitted therefrom in reliance upon Rule 430A under the 1933 Act,
then, immediately following the execution of this Agreement, the Company will
prepare, and file or transmit for filing with the Commission in accordance with
such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended
Prospectus containing all information so omitted. |
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(p) As soon as practicable, but not later than 16 months after the date of this
Agreement, the Company will make generally available to its securityholders an
earnings statement covering a period of at least 12 months beginning after the
later of (i) the effective date of the Registration Statement; (ii) the
effective date of the most recent post-effective amendment to the Registration
Statement to become effective prior to the date of this Agreement; and (iii) the
date of the Company's most recent Annual Report or Form 10-K filed with the
Commission prior to the date of this Agreement, which will satisfy the
provisions of Section 11(a) of the Act. |
5. Indemnification and Contribution.
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(a) College Loan agrees to indemnify and hold harmless the Underwriter and each
person, if any, who controls the Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages, liabilities and expenses (or actions in respect thereof)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Prospectus, or in
any amendment or supplement thereto, or any preliminary prospectus, or arising
out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading and will reimburse the Underwriter for any legal or other
expenses reasonably incurred by the 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
the Underwriter furnished in writing to the Company or College Loan by the
Underwriter expressly for use therein, it being understood that the only such
information furnished by the Underwriter consists of the information described
as such in Section 10 of this Agreement; provided, however, that the
indemnification contained in this paragraph (a) with respect to any preliminary
prospectus shall not inure to the benefit of the Underwriter (or to the benefit
of any person controlling the Underwriter) on account of any such loss, claim,
damage, liability or expense arising from the sale of the of Notes by the
Underwriter to any person if the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such preliminary
prospectus was corrected in the final Prospectus and the Underwriter sold Notes
to that person without sending or giving at or prior to the written confirmation
of such sale, a copy of the final Prospectus (as then amended or supplemented
but excluding documents incorporated by reference therein) if the Company has
previously furnished sufficient copies thereof to the Underwriter at a time
reasonably prior to the date such Notes are sold to such person. The foregoing
indemnity agreement shall be in addition to any liability which College Loan or
the Company may otherwise have. |
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(b) If any action, suit or proceeding shall be brought against the Underwriter
or any person controlling an Underwriter in respect of which indemnity may be
sought against College Loan, such Underwriter or such controlling person shall
promptly notify the parties against whom indemnification is being sought (the
"indemnifying parties"), but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party, except to the extent that the indemnifying party is materially prejudiced
by such omission. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party). The 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 the 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 the Underwriter and
controlling persons not having actual or potential differing interests with the
Underwriter or among themselves, which firm shall be designated in writing by
the Underwriter, and that all such fees and expenses shall be reimbursed on a
monthly basis as provided in paragraph (a) hereof. An indemnifying party will
not, without the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent (A) includes an unconditional
release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding; and (B) does not include a statement as to, or an
admission of fault, culpability or a failure to act by or on behalf of an
indemnified party. |
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(c) The Underwriter agrees to indemnify and hold harmless College Loan and its
directors and officers, and any person who controls College Loan within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the indemnity from College Loan to the Underwriter set forth in
paragraph (a) hereof, but only with respect to information relating to the
Underwriter furnished in writing by the Underwriter expressly for use in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus therein, it being understood that the only
such information furnished by the Underwriter consists of the information
described as such in Section 10 of this Agreement. If any action, suit or
proceeding shall be brought against College Loan, any of its directors or
officers, or any such controlling person based on the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus and in respect of which indemnity may be sought against
the Underwriter pursuant to this paragraph (c), the Underwriter shall have the
rights and duties given to College Loan by paragraph (b) above (except that if
College Loan shall have assumed the defense thereof the Underwriter shall have
the option to assume such defense but shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof, but the
fees and expenses of such counsel shall be at the Underwriter's expense), and
College Loan, its directors and officers, and any such controlling person shall
have the rights and duties given to the Underwriter by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which the
Underwriter may otherwise have. |
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(d) If the indemnification provided for in this Section 5 is unavailable to an
indemnified party under paragraph (a) or (c) hereof in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by College Loan on
the one hand and the Underwriter on the other hand from the offering of the
Notes; or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
College Loan on the one hand and the Underwriter on the other in connection with
the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by College Loan on the one hand and an
Underwriter on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by the Underwriter. The relative fault of College Loan on the one hand
and the Underwriter on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by College Loan or the Company on the one hand or by the
Underwriter on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. |
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(e) College Loan and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 5 were determined by a pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 5, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by the Underwriter with respect
to the Notes underwritten by the Underwriter exceed the sum of the amount of any
damages which the Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriter's obligations in
this paragraph (e) to contribute are several in proportion to their respective
underwriting obligations. |
|
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 5 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 5 and the
representations and warranties of College Loan and the Underwriter 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 Underwriter, College Loan
or any person controlling any of them or their respective directors or officers;
(ii) acceptance of any Notes and payment therefor hereunder; and (iii) any
termination of this Agreement. A successor to the Underwriter, College Loan or
any person controlling any of them or their respective directors or officers,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 5. |
6. Conditions of the Underwriter's
Obligations. The obligations of the Underwriter to purchase the Notes
hereunder are subject to the following conditions precedent:
|
(a) All actions required to be taken and all filings required to be made by the
Company under the Act prior to the sale of the Notes shall have been duly taken
or made. At and prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Company or the Underwriter, shall be contemplated by the Commission. |
|
(b) Subsequent to the effective date of this Agreement, there shall not have
occurred (i) any change, or any development or event involving a prospective
change, in or affecting the condition (financial or other), business,
properties, net worth, or results of operations of the Company, the Servicers,
the Guaranty Agencies or College Loan not contemplated by the Registration
Statement, which in the opinion of the Underwriter, would materially adversely
affect the market for the Notes; (ii) any downgrading in the rating of any debt
securities of the Company, the Servicers, the Guaranty Agencies or College Loan
by any nationally recognized statistical rating organization or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company, the Servicers, the Guaranty
Agencies or College Loan (other than an announcement with positive implications
of a possible upgrading, and no implication of a possible downgrading, of such
rating); or (iii) any event or development which makes any statement made in the
Registration Statement or Prospectus untrue or which, in the opinion of the
Company and its counsel or the Underwriter and its counsel, requires the filing
of any amendment to or change in the Registration Statement or Prospectus in
order to state a material fact required by any law to be stated therein or
necessary in order to make the statements therein not misleading, if amending or
supplementing the Registration Statement or Prospectus to reflect such event or
development would, in the opinion of the Underwriter, materially adversely
affect the market for the Notes. |
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(c) You shall have received an opinion addressed to you of [__________], in its
capacity as counsel to the Company, dated the Closing Date, in form and
substance satisfactory to you and your counsel with respect to the status of the
Company, to each Basic Document to which the Company is a party and to the
validity of the Notes and such related matters as you shall reasonably request.
In addition, you shall have received an opinion addressed to you of
[__________], in its capacity as counsel for the Company, in form and substance
satisfactory to you and your counsel, concerning "true sale,"
"non-consolidation" and "first perfected security interest" and certain other
issues with respect to the transfer of the Financed Student Loans from
[__________] and the [__________] Eligible Lender Trustee to the Company and the
Eligible Lender Trustee, and from the Company and the Eligible Lender Trustee to
the Trustee and an opinion addressed to you of [__________] with respect to said
perfected security interest being a first priority perfected security interest. |
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(d) You shall have received an opinion addressed to you of [__________], in its
capacity as counsel for the Company, dated the Closing Date, in form and
substance satisfactory to you and your counsel to the effect that the statements
in the Prospectus under the headings "Federal Income Tax Consequences" and
"ERISA Considerations," to the extent that they constitute statements of matters
of law or legal conclusions with respect thereto, have been prepared or reviewed
by such counsel and are correct in all material respects. |
|
(e) You shall have received an opinion addressed to you of [__________], in its
capacity as counsel for the Company, dated the Closing Date, in form and
substance satisfactory to you and your counsel with respect to the character of
the Notes for federal tax purposes. |
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(f) You shall have received an opinion addressed to you of [__________], in its
capacity as Underwriter's Counsel, dated the Closing Date, in form and substance
satisfactory to you. |
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(g) You shall have received an opinion addressed to you of [__________], in its
capacity as counsel for the Company, dated the Closing Date in form and
substance satisfactory to you and your counsel with respect to the Prospectus
and the Registration Statement and certain matters arising under the Trust
Indenture Act of 1939, as amended, and the Investment Company Act of 1940, as
amended. |
|
(h) You shall have received opinions addressed to you of [__________], as
counsel to College Loan with respect to College Loan and of [__________] as
counsel to SPC, with respect to SPC, each dated the Closing Date and
satisfactory in form and substance to you and your counsel, to the effect that: |
|
(i) Each of College Loan and SPC is a corporation in good standing under the
laws of their respective state of organization; each having the full power and
authority, corporate and other, to own its properties and conduct its business,
as presently conducted by it, and to enter into and perform its obligations
under each of the Basic Documents to which it is a party. |
|
(ii) The Basic Documents to which College Loan is a party have been duly
authorized, executed and delivered by College Loan and each such agreement is
the legal, valid and binding obligation of College Loan, enforceable against
College Loan in accordance with their respective terms, except (A) the
enforceability thereof may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights; and (B) remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought. |
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(iii) Neither the execution and delivery by College Loan of the Basic Documents
to which it is a party, nor the consummation by College Loan of the transactions
contemplated therein nor the fulfillment of the terms thereof by College Loan
will conflict with, result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the certificate or
incorporation or bylaws of College Loan or of any indenture or other agreement
or instrument to which College Loan is a party or by which College Loan is
bound, or result in a violation of or contravene the terms of any statute, order
or regulation applicable to College Loan of any court, regulatory body,
administrative agency or governmental body having jurisdiction over College
Loan. |
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(iv) There are no actions, proceedings or investigations pending or, to the best
of such counsel's knowledge, threatened against College Loan before or by any
governmental authority that might materially and adversely affect the
performance by College Loan of its obligations under, or the validity or
enforceability of, the Basic Documents to which it is a party. |
|
(v) No authorization, approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for the due
execution, delivery and performance by College Loan of the Basic Documents to
which it is a party. |
|
(vi) The information contained in the Prospectus with respect to College Loan
and its operations and business and with respect to the student loan business of
the Company is true and correct in all material respects, and does not contain
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. |
|
(i) You shall have received an opinion addressed to you of counsel to the
Trustee and the Eligible Lender Trustee, dated the Closing Date and in form and
substance satisfactory to you and your counsel, to the effect that: |
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(i) Each of them is a banking corporation duly organized and validly existing
under the laws of the State of New York. |
|
(ii) Each of them has the full corporate trust power to accept the office of
trustee under the Basic Documents to which they are a party and to enter into
and perform their obligations under the Basic Documents to which they are a
party and, additionally, in the case of the Trustee, the [____________]
(collectively, the "Trustee Documents" and the "Eligible Lender Trustee
Documents," as the case may be). |
|
(iii) The execution and delivery by the Trustee and the Eligible Lender Trustee
of the Trustee Documents and the Eligible Lender Trustee Documents,
respectively, and the performance by such parties of their obligations
thereunder, have been duly authorized by all necessary action and each has been
duly executed and delivered by the Trustee and the Eligible Lender Trustee. |
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(iv) The Trustee Documents and the Eligible Lender Trustee Documents constitute
valid and binding obligations of the Trustee and the Eligible Lender Trustee
enforceable against such party. |
|
(v) The Trustee and the Eligible Lender Trustee, respectively, is an "eligible
lender" for purposes of the FFELP Program in its capacity as trustee with
respect to Financed Student Loans. |
|
(j) You shall have received certificates addressed to you dated the Closing Date
of officials of the Company in which such officers shall state that, to the best
of their knowledge after reasonable investigation, (i) the representations and
warranties of the Company contained in the respective Basic Documents to which
the Company is a party are true and correct in all material respects, that the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied under such agreements at or prior to the
Closing Date; (ii) that they have reviewed the Prospectus and that the
information therein is true and correct in all material respects; and (iii)
since the date set forth in such certificate, except as may be disclosed in the
Prospectus, no material adverse change or any development involving a
prospective material adverse change, in or affecting particularly the business
or properties of the Company has occurred. |
|
(k) You shall have received certificates addressed to you dated the Closing Date
of officials of College Loan in which such officers shall state that, to the
best of their knowledge after reasonable investigation, (i) the representations
and warranties of College Loan contained in the respective Basic Documents to
which College Loan is a party are true and correct in all material respects,
that College Loan has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied under such agreements at or prior to
the Closing Date; (ii) that they have reviewed the Prospectus and that the
information therein regarding College Loan and the Basic Documents to which it
is a party is fair and accurate in all material respects; and (iii) since the
date set forth in such certificate, except as may be disclosed in the
Prospectus, no material adverse change or any development involving a
prospective material adverse change in, or affecting particularly the business
or properties of College Loan has occurred. |
|
(l) You shall have received evidence satisfactory to you that, on or before the
Closing Date, UCC-1 financing statements have been or are being filed in the
office of the Secretary of State of the State of Delaware reflecting the grant
of the security interest by the Company and the Eligible Lender Trustee in the
Financed Student Loans and the proceeds thereof to the Trustee. |
|
(m) You shall have received a certificate addressed to you dated the Closing
Date from a responsible officer acceptable to you of the Eligible Lender Trustee
and the [__________] Eligible Lender Trustee in form and substance satisfactory
to you and your counsel and to which shall be attached each Guaranty Agreement. |
|
(n) The Underwriter shall have received on the Closing Date from [__________] a
letter dated the Closing Date, and in form and substance satisfactory to the
Underwriter, to the effect that they have carried out certain specified
procedures, not constituting an audit, with respect to certain information
regarding the Financed Student Loans and setting forth the results of such
specified procedures. |
|
(o) All the representations and warranties of the Company contained in this
Agreement and the Basic Documents to which it is a party and of College Loan in
the Basic Documents to which it is a party shall be true and correct in all
material respects on and as of the date hereof and on and as of the Closing Date
as if made on and as of the Closing Date and the Underwriter shall have received
a certificate, dated the Closing Date and signed by officers of the Company and
such entities to the effect set forth in this Section. |
|
(p) The Company shall not have failed at or prior to the Closing Date to have
performed or complied with any of its agreements herein contained and required
to be performed or complied with by it hereunder at or prior to the Closing
Date. |
|
(q) The Underwriter shall have received by instrument dated the Closing Date (at
the option of the Underwriter), in lieu of or in addition to the legal opinions
referred to in this Section 6, the right to rely on opinions provided by such
counsel and all other counsel under the terms of the Basic Documents. |
|
(r) Each class of [______] Notes shall be rated ["___,"] ["___"] and ["___,"]
respectively, by [______] (["_____"]),[______] (["______"]), and [______]
(["______"]), the [______] Notes shall be rated ["__,"] ["__"] and ["__,"] or
higher, by [______],[______] and [______], respectively, and that neither
[______],[______] nor [______] have placed the Notes under surveillance or
review with possible negative implications. |
|
(s) The issuance of the Notes shall not have resulted in a reduction or
withdrawal by [______],[______] or [______] of the current rating of any
outstanding notes issued by the Company pursuant to the Indenture. |
|
(t) You shall have received evidence satisfactory to you of the completion of
all actions necessary to effect the transfer of the Financed Student Loans as
described in the Prospectus and the recordation thereof on the Servicers'
computer systems. |
|
(u) You shall have received certificates addressed to you dated the Closing Date
from officers of the Company and others addressing such additional matters as
you may reasonably request in form and substance satisfactory to you and your
counsel. |
|
(v) You shall have received certificates addressed to you dated the initial
Closing Date of the Guaranty Agencies to the effect that (i) the information in
the Prospectus with respect to the applicable Guaranty Agency is true and
correct and is fair and accurate in all material respects; and (ii) that since
the date of the Prospectus, no material adverse change in or affecting the
business or properties of the applicable Guaranty Agency has occurred. |
|
(w) You shall have received certificates addressed to you dated the initial
Closing Date of officials of each of [_____],[_____],[_____] and [_____] in
which such officers shall state that, to the best of their knowledge after
reasonable investigation, (i) the representations and warranties of the
applicable Servicer contained in the respective Basic Documents to which such
Servicer is a party are true and correct in all material respects, and that such
Servicer has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied under such agreements at or prior to the
initial Closing Date; (ii) that they have reviewed the Prospectus and that the
information therein regarding such Servicer and the Basic Documents to which it
is a party is fair and accurate in all material respects; and (iii) since the
date set forth in such certificate, except as may be disclosed in the
Prospectus, no material adverse change or any development involving a
prospective material adverse change, in or affecting particularly the business
or properties of the Servicer, has occurred. |
|
(x) You shall have received certificates addressed to you dated the initial
Closing Date of officials of each of [_____] and [_____] in which such officers
shall state that, to the best of their knowledge after reasonable investigation,
(i) the representations and warranties of the applicable Servicer contained in
the Servicing Agreement to which it is a party are true and correct in all
material respects, that such Servicer has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied under such
agreements at or prior to the initial Closing Date; (ii) that they have reviewed
the Prospectus and that the information therein regarding the applicable
Servicer is fair and accurate in all material respects; and (iii) since the date
set forth in such certificate, except as may be disclosed in the Prospectus, no
material adverse change or any development involving a prospective material
adverse change in, or affecting particularly the business or properties of the
applicable Servicer, has occurred. |
|
(y) You shall have received such other opinions (including an opinion of
[________________]), certificates and documents as are required under the
Indenture as a condition to the issuance of the Notes. |
The Company will provide or cause to be provided to you such conformed copies of
such of the foregoing opinions, notes, letters and documents as you reasonably
request.
7. Expenses. The Company agrees to pay or to
otherwise cause the payment of the following costs and expenses and all other
costs and expenses incident to the performance by it of its obligations
hereunder: (a) the preparation, printing or reproduction of the
Registration Statement, the Prospectus and each amendment or supplement to any
of them, this Agreement, and each other Basic Document; (b) the printing
(or reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Registration
Statement, the Prospectus and all amendments or supplements to, and preliminary
versions of, any of them as may be reasonably requested for use in connection
with the offering and sale of the Notes; (c) the preparation, printing,
authentication, issuance and delivery of definitive certificates for the Notes;
(d) the printing (or reproduction) and delivery of this Agreement, the
preliminary and supplemental Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Notes; (e) qualification of the Indenture under the Trust Indenture
Act; (f) the qualification of the Notes for offer and sale under the
securities or Blue Sky laws of the several states as provided in
Section 3(h) hereof (including the reasonable fees, expenses and
disbursements of counsel relating to the preparation, printing or reproduction,
and delivery of the preliminary and supplemental Blue Sky Memoranda and such
qualification); (g) the fees and disbursements of (i) the
Company’s counsel, (ii) the Underwriter’s counsel, (iii) the
Trustee and its counsel, (iv) the Delaware Trustee and its counsel,
(v) the Depository Trust Company in connection with the book-entry
registration of the Notes, (vi) the SEC, and (vii) [___________],
accountants for the Company and issuer of the agreed upon procedures letter; and
(h) the fees charged by S&P, Fitch and ▇▇▇▇▇’▇ for rating the
Notes.
8. Effective Date of Agreement. This
Agreement shall be deemed effective as of the date first above written upon the
execution and delivery hereof by all the parties hereto. Until such time as this
Agreement shall have become effective, it may be terminated by the Company, by
notifying the Underwriter, or by the Underwriter, by notifying the Company.
Any notice under this Section 8 may be given by facsimile or telephone but
shall be subsequently confirmed by letter.
9. Termination of Agreement. This Agreement
shall be subject to termination in the absolute discretion of the Underwriter,
without liability on the part of the Underwriter to the Company, by notice to
the Company, if prior to the Closing Date (a) trading in securities generally on
the New York Stock Exchange, American Stock Exchange or the Nasdaq National
Market shall have been suspended or materially limited; (b) a general moratorium
on commercial banking activities in New York shall have been declared by either
federal or state authorities; or (c) there shall have occurred any outbreak or
escalation of hostilities or other international or domestic calamity, crisis or
change in political, financial or economic conditions, the effect of which is
such as to make it, in the judgment of the Underwriter, impracticable or
inadvisable to commence or continue the offering of the Notes on the terms set
forth in the Prospectus, as applicable, or to enforce contracts for the resale
of the Notes by the Underwriter. Notice of such termination may be given to the
Company by facsimile or telephone and shall be subsequently confirmed by letter.
10. Information Furnished by the
Underwriter. The statements set forth in the [___________] paragraphs and
the [______] table under the heading "Plan of Distribution" in the Prospectus
Supplement constitute the only information furnished by or on behalf of the
Underwriter as such information is referred to in Sections 3(b) and 5 hereof.
11. Default by the Underwriter. If the
Underwriter shall fail on the Closing Date to purchase the Notes which it is
obligated to purchase hereunder (the "Defaulted Notes"), the remaining
Underwriter (the "Non-Defaulting Underwriter") shall have the right, but not the
obligation, within one Business Day thereafter, to make arrangements to purchase
all, but not less than all, of the Defaulted Notes upon the terms herein set
forth; if, however, the Non-Defaulting Underwriter shall have not completed such
arrangements within such one Business Day period, then this Agreement shall
terminate without liability on the part of the Non-Defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this
Agreement, either the Non-Defaulting Underwriter or the Company shall have the
right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
12. Computational Materials.
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(a) It is understood that the Underwriter may prepare and provide to prospective
investors certain Computational Materials, as defined below, in connection with
the Company's offering of the Notes, subject to the following conditions: |
|
(i) The Underwriter shall comply with all applicable laws and regulations in
connection with the use of Computational Materials including the No-Action
Letter of May 20, 1994 issued by the Commission to ▇▇▇▇▇▇, Peabody Acceptance
Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇ Structured Asset
Corporation, as made applicable to other issuers and underwriters by the
Commission in response to the request of the Public Securities Association dated
May 27, 1994, and the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (collectively, the "▇▇▇▇▇▇/PSA
Letters"). |
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(ii) As used herein, "Computational Materials" and the term "ABS Term Sheets"
shall have the meanings given such terms in the ▇▇▇▇▇▇/PSA Letters, but shall
include only those Computational Materials that have been prepared or delivered
to prospective investors by or at the direction of an Underwriter. |
|
(iii) The Underwriter shall provide the Company with representative forms of all
Computational Materials prior to their first use, to the extent such forms have
not previously been approved by the Company for use by such Underwriter. The
Underwriter shall provide to the Company, for filing on Form 8-K as provided in
Section 12(b), copies of all Computational Materials that are to be filed with
the Commission pursuant to the ▇▇▇▇▇▇/PSA Letters. The Underwriter may provide
copies of the foregoing in a consolidated or aggregated form. All Computational
Materials described in this paragraph (iii) must be provided to the Company not
later than 10:00 a.m., New York City time, one business day before filing
thereof is required pursuant to the terms of this Agreement.
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(iv) If the Underwriter does not provide the Computational Materials to the
Company pursuant to paragraph (iii) above, the Underwriter shall be deemed to
have represented, as of the applicable Closing Date, that it did not provide any
prospective investors with any information in written or electronic form in
connection with the offering of the Notes that is required to be filed with the
Commission in accordance with the ▇▇▇▇▇▇/PSA Letters. |
|
(v) In the event of any delay in the delivery by the Underwriter to the Company
of all Computational Materials required to be delivered in accordance with
subparagraph (iii) above, the Company shall have the right to delay the release
of the Prospectus to investors or to the Underwriter, to delay the Closing Date
and to take other appropriate actions in each case as necessary in order to
allow the Company to comply with its agreement set forth in Section 12(b) to
file the Computational Materials by the time specified therein. |
|
(b) The Company shall file the Computational Materials, if any, provided to it
by the Underwriter under Section 12(a)(iii) with the Commission pursuant to a
Current Report on Form 8-K no later than [_:_0 _.m.], [_____] time, on the date
required pursuant to the ▇▇▇▇▇▇/PSA Letters.
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13. Survival of Representations and
Warranties. The respective indemnities, agreements, representations,
warranties and other statements of the Company or its officers and of the
Underwriter set forth in or made pursuant to this Agreement or contained in
notes of officers of the Company submitted pursuant hereto shall remain
operative and in full force and effect, regardless of any investigation or
statement as to the results thereof, made by or on behalf of the Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Notes.
14. Miscellaneous. Except as otherwise
provided in Sections 5, 8 and 9 hereof, notice given pursuant to any provision
of this Agreement shall be in writing and shall be delivered (a) if to the
Company or College Loan, at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇; and (b) if to the Underwriter, to the
address set forth above with a copy to [_________], [________], [_________],
[_______], [_______], [_________] [_____].
This Agreement has been and is made solely for the benefit of the Underwriter,
the Company, their respective directors, officers, managers, trustees and
controlling persons referred to in Section 5 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
“successor” nor the term “successors and assigns” as used in
this Agreement shall include a purchaser from the Underwriter of any of the
Notes in his status as such purchaser.
15. Applicable Law; Counterparts. This
Agreement shall be governed by and construed in accordance with the laws of the
State of [____________] applicable to contracts made and to be performed within
the State of [____________] without giving effect to the choice of laws or
conflict of laws principles thereof.
The Company hereby submits to the non-exclusive jurisdiction of the federal and
state courts in [____________] in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
This Agreement may be signed in various counterparts which together constitute
one and the same instrument. If signed in counterparts, this Agreement shall not
become effective unless at least one counterpart hereof or thereof shall have
been executed and delivered on behalf of each party hereto.
16. Liability of Wilmington Trust Company.
Wilmington Trust Company acts solely as the Delaware Trustee hereunder and not
in its individual capacity. All persons having any claim against the Company or
the Delaware Trustee by reason of this Agreement shall look only to the Trust
Estate for payment or satisfaction thereof.
Please confirm that the foregoing correctly sets forth the agreement between the
Company and the Underwriter.
| |
Very truly yours,
COLLEGE LOAN CORPORATION TRUST I
By: COLLEGE LOAN CORPORATION, as
Issuer Administrator
By
COLLEGE LOAN CORPORATION
By
|
Confirmed as of the date
first above mentioned.
[____________]
By_________________________________________
Name_______________________________________
Title______________________________________
SCHEDULE A
| Notes |
[____________] |
Total |
| Class [___] |
$ |
$ |
| Class [___] |
|
|
| Class [___] |
|
|
| Total |
|
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SCHEDULE B
Terms of the Notes
Final Price to Underwriting Proceeds to
Class Interest Rate Maturity Date Public Discount Issuer
[________] [________] [________] 100% % $
[________] [________] [________] 100% %
[________] [________] [________] 100% %
Total
