EXHIBIT 1.1
[Education Funding Capital Trust-___]
$___________ Education Loan Backed Notes
__________ Series ______
UNDERWRITING AGREEMENT
[Name of Underwriter] ___________, 2003
as Representative of the Underwriters named herein
Ladies and Gentlemen:
Education Lending Services, Inc. ("ELS"), a Delaware corporation, as
administrator of the business activities of the Depositor (as defined below),
has caused the Depositor to form a statutory trust under the laws of the State
of Delaware known as [Education Funding Capital Trust-__] (the "Trust"), to
which the Depositor has and will transfer Student Loans, and ELS proposes to
cause the Trust to sell to [Name of Underwriter] (the "Representative") and
___________ ___ (collectively with the Representative, ___ the "Underwriters",
___ and each individually, an "Underwriter"), pursuant to the terms of this
Underwriting Agreement (this "Agreement"), Education Loan Backed Notes in the
following Series and initial principal amounts: $___________ Education Loan
Backed Notes, ___ Series 2003A-__ ___ (the ___ "Series A-__ ___ Notes"), ___
$___________ ___ Education ___ Loan Backed Notes, Series 2003A-__ (the "Series
A-__ Notes"), $___________ Education Loan Backed Notes, Series 2003A-__ (the
"Series A-__ Notes"), $___________ Education Loan Backed Notes, Series 2003A-__
(the "Series A-__ Notes"), $___________ Education Loan Backed Notes, Series
2003A-__ (the "Series A-__ Notes"), $___________ Education Loan Backed Notes,
___ Series 2003A-__ ___ (the ___ "Series A-__ ___ Notes"), ___ $___________ ___
Education ___ Loan Backed Notes, Series 2003A-__ (the "Series A-__ Notes"), and
$___________ Education Loan Backed Notes, Series 2003A-__ (the "Series A-__
Notes") (the "Series A-__ Notes" and together with the Series A-__ Notes, the
Series A-__ Notes, the Series A-__ Notes, the Series A-__ Notes, the Series A-__
Notes, the Series A-__ Notes, and the Series A-__ Notes, the "Series A Notes"),
and $___________ Education Loan Backed Notes, Series 2003B-__ (the "Series B
Notes" and together with the Series A Notes, the "Notes").
Education Funding Capital I, LLC (the "Depositor"), a Delaware limited
liability company, [previously acquired] [will acquire] a pool of Student Loans
from Education Lending Group, Inc. (the "Seller") pursuant to the Seller
Transfer and Sale Agreement dated as of ___________, 2003 (the "Seller Transfer
and Sale Agreement") among the Seller, the Depositor, Fifth Third Bank, as
eligible lender trustee on behalf of the Seller (the "Seller Eligible Lender
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Trustee"), and Fifth Third Bank, as eligible lender trustee on behalf of the
Depositor (the "Depositor Eligible Lender Trustee"), which pool of Student Loans
the Depositor will transfer to the Trust pursuant to the Depositor Transfer and
Sale Agreement dated as of ___________, 2003 (the "Depositor Transfer and Sale
Agreement) among the Depositor, the Trust, the Depositor Eligible Lender
Trustee, and Fifth Third Bank, as eligible lender trustee on behalf of the Trust
(the "Trust Eligible Lender Trustee"; in its capacity as eligible lender trustee
on behalf of the Seller, the Depositor and the Trust, Fifth Third Bank is
referred to herein as the "Eligible Lender Trustee"). As of ___________, 2003,
that pool of Student Loans had an outstanding principal balance of $___________.
The Trust was formed pursuant to a Trust Agreement dated as of
___________, 2003 (the "Trust Agreement") among the Depositor, Wilmington Trust
Company, a banking corporation formed under the laws of the State of Delaware,
as owner trustee of the Trust (the "Owner Trustee"), and Fifth Third Bank, as
co-owner trustee of the Trust (the "Co-Owner Trustee").
ELS serves as administrator of the Depositor pursuant to the
Administration Agreement dated as of ___________, 2003 (the "Depositor
Administration Agreement") between ELS and the Depositor, and as administrator
of the Trust pursuant to the Administration Agreement dated as of ___________,
2003 (the "Trust Administration Agreement"), between ELS and the Trust. Fifth
Third Bank, a banking corporation formed under the laws of the State of Ohio,
acts as eligible lender trustee on behalf of (i) the Seller pursuant to the
Eligible Lender Trust Agreement dated as of May 1, 2002 (as amended, the "Seller
Eligible Lender Trust Agreement") between Fifth Third Bank and the Seller, (ii)
the Depositor pursuant to the Eligible Lender Trust Agreement dated as of May 1,
2002 (the "Depositor Eligible Lender Trust Agreement") between Fifth Third Bank
and the Depositor, and (iii) the Trust pursuant to the Eligible Lender Trust
Agreement dated as of ___________, 2003 (the "Trust Eligible Lender Trust
Agreement" and together with the Seller Eligible Lender Trust Agreement and the
Depositor Eligible Lender Trust Agreement, the "Eligible Lender Trust
Agreements") between Fifth Third Bank and the Trust.
The Notes will be issued pursuant to an Indenture of Trust dated as of
___________, 2003 (the "Indenture"), among the Trust, Fifth Third Bank, as
indenture trustee (the "Indenture Trustee"), and the Trust Eligible Lender
Trustee. Pursuant to the Indenture, the Notes will be secured by, among other
things, the Student Loans to be acquired by the Trust.
As used in this Agreement, the term "Basic Documents" refers to the
following: (i) the Trust Agreement; (ii) the Indenture; (iii) the Eligible
Lender Trust Agreements, (iv) the Seller Transfer and Sale Agreement; (v) the
Depositor Transfer and Sale Agreement; (vi) the Servicing Agreement dated as of
___________, 2003 among ELS, as master servicer (the "Master Servicer"), the
Trust and the Trust Eligible Lender Trustee; (vii) the Servicing Agreement dated
as of ___________, 2003 (the "Subservicing Agreement") among [Name of
Subservicer] (the "Subservicer"), the Trust Eligible Lender Trustee and the
Master Servicer; (viii) the Bailment Notice and Acknowledgement dated
___________, 2003 among the Trust, the Trust Eligible Lender Trustee, the
Indenture Trustee and the Subservicer; (ix) the Depositor Administration
Agreement; (x) the Trust Administration Agreement; [(xi) the Auction Agent
Agreement dated as of ___________, 2003 (the "Auction Agent Agreement") among
the Trust, the Indenture
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Trustee and [Name of Auction Agent], as auction agent (the "Auction Agent");]
(xii) the Market Agent Agreement dated as of ___________, 2003 (the "Market
Agent Agreement") among [Name of Market Agent], as market agent, the Trust and
the Indenture Trustee; (xiii) the Broker-Dealer Agreement dated as of
___________, 2003 between [Name of Broker-Dealer] and the Auction Agent; (xiv)
the Broker-Dealer Agreement dated as of ___________, 2003 between [Name of
Broker-Dealer] and the Auction Agent (together with the Broker-Dealer Agreement
referred to in (xiii) above, the "Broker-Dealer Agreements"); (xv) this
Agreement; and (xvi) the Notes. When used with reference to a Person, the term
"its Basic Documents" refers to the Basic Documents to which that Person is a
party.
Capitalized terms used but not defined in this Agreement shall have the
meanings ascribed to such terms in the Indenture.
1. Purchase and Sale of Notes.
(a) Subject to the terms and conditions and upon the basis of
the representations, warranties and covenants hereinafter set forth, the
Underwriters hereby agree, jointly and severally, to purchase from the Trust,
and the Seller, the Depositor and ELS (the Seller, the Depositor and ELS are
hereinafter referred to collectively as the "Responsible Parties") hereby agree,
jointly and severally, to cause the Trust to sell to the Underwriters, all (but
not less than all) of the Notes, dated as of their date of issuance, in the
principal amount and at the aggregate purchase price set forth on Appendix A,
attached hereto.
(b) It is understood that, after the Registration Statement
becomes effective, the Underwriters propose to offer the Notes for sale to the
public (which may include selected dealers) as set forth in the Prospectus. The
Underwriters agree not to offer or sell the Notes in any state or jurisdiction
where registration, qualification ___ or any filing to effect any exemption is
required under such state's or jurisdiction's securities or Blue Sky laws,
except where, with the consent of the Responsible Parties (which may be withheld
in the Responsible Parties' sole discretion), such registration, qualification
or filing has been completed. The Underwriters agree that all offers and sales
of the Notes will be made in accordance with applicable federal and state
securities laws and regulations.
2. Closing. No later than 12:00 noon, New York City time, on
___________, 2003, or at such other time or on such earlier or later date as
shall have been mutually agreed upon by ELS and the Representative, ELS shall
deliver, or cause to be delivered the Notes to the Indenture Trustee to be held
in its custody pursuant to a FAST delivery arrangement with and on behalf of The
Depository Trust Company ("DTC"), which Notes shall be in form satisfactory to
the Representative and duly executed by the Co-Owner Trustee on behalf of the
Trust, and shall deliver a specimen copy of each executed and authenticated Note
to the Representative together with the other documents hereinafter mentioned;
and the Representative shall accept such delivery for the respective accounts of
the Underwriters and the Underwriters shall pay the purchase price of the Notes
as set forth in Appendix A by wire transfer in clearinghouse funds to the
Indenture Trustee. Such payment and delivery is herein called the "Closing" and
the date of the Closing is herein called the "Closing Date". The Notes (one Note
for each Series in the respective principal amount thereof unless otherwise
required by the rules and regulations of
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DTC) shall be made available to the Representative for checking and delivery to
the Indenture Trustee not less than 24 hours prior to the Closing at a place
designated by the Representative. The Notes may be typewritten and shall be
registered in the name of Cede & Co. ELS and the Co-Owner Trustee on behalf of
the Trust will file with DTC a Letter of Representations, together with all
riders and/or supplements thereto required by DTC, to permit the Notes to be
held in the custody of the Indenture Trustee pursuant to a FAST delivery
arrangement.
3. Representations, Warranties and Covenants of the Responsible
Parties. Each of the Responsible Parties represents and warrants to and agrees
with the Underwriters that:
(a) Registration statement on Form S-3 (No. 333-____), 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")
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.
(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..
(c) The SEC has not issued and, to the best knowledge of the
Responsible Parties, is not threatening to issue any order preventing or
suspending the use of the Registration Statement.
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(d) The Trust is a duly organized and validly existing Delaware
statutory trust and had or has, at the respective dates of their execution, full
legal rights, power and authority (i) to enter into its Basic Documents, (ii) to
authorize the issuance of the Notes and to issue, sell and deliver the Notes to
the Underwriters pursuant to the Indenture as provided herein, and (iii) to
carry out, give effect to and consummate the transactions contemplated by its
Basic Documents and the Prospectus.
(e) When delivered to and paid for by the Underwriters on the
Closing Date as provided herein, the Notes will be validly issued and
outstanding limited obligations of the Trust entitled to the benefits of the
Indenture.
(f) All approvals, consents, authorizations, permits, elections
and orders of or filings or registrations with any governmental authority,
board, agency or commission having jurisdiction, including but not limited to,
the United States Department of Education under the Higher Education Act, that
would constitute a condition precedent to the performance by each of the
Responsible Parties and the Trust of their respective obligations under the
Basic Documents have been obtained and are in full force and effect, except such
as may be required by the blue sky laws of any jurisdiction in connection with
the sale and distribution of the Notes, for which no representation is being
given.
(g) The Basic Documents to be executed by the Trust in
connection with the issuance and sale of the Notes (when executed and delivered
by the respective parties thereto) will constitute, legal, valid and binding
obligations of the Trust enforceable in accordance with their respective terms
except as limited by bankruptcy, reorganization, insolvency and other similar
laws affecting enforceability of creditors' rights generally and provided that
the availability of equitable remedies is subject to the application of
equitable principles. The Indenture has been duly qualified under the Trust
Indenture Act with respect to the Notes.
(h) To the knowledge of the Responsible Parties, no action,
suit, proceeding, ___ inquiry or investigation, at law or in equity, before or
by any court, regulatory agency, public board or body, is pending or threatened
in any way affecting the existence of the Trust or seeking to restrain or to
enjoin the issuance, sale or delivery of the Notes, the application of the
proceeds thereof in accordance with the Indenture, or the collection or
application of Revenues or assets of the Trust pledged or to be pledged to pay
the principal of and interest on the Notes, or other pledge thereof, or in any
way contesting or affecting the validity or enforceability of the Basic
Documents, or any action on the part of the Trust contemplated by any of said
documents, or that, if adversely determined, would have a material adverse
effect on the financial condition or prospects of the Trust, nor, to the
knowledge of the Responsible Parties, is there any basis therefor.
(i) The Responsible Parties shall furnish such information,
execute such instruments and take such other action in cooperation with the
Underwriters as the Underwriters may reasonably request to qualify the Notes for
offer and sale under the "blue sky" laws or other securities laws and
regulations of such states and other jurisdictions of the United States as the
Underwriters may designate; provided, however, that in no event shall any of the
Responsible Parties or the Trust be obligated to qualify to do business in any
jurisdiction where it is not now
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so qualified or take any action that 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 subject.
(j) Between the date hereof and the Closing Date the Responsible
Parties shall not take, or cause the Trust to take, any action that would cause
the representations and warranties made herein to be untrue as of the Closing
Date.
(k) The Trust is not and, after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(l) None of the Responsible Parties has taken, nor will any of
them 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; it being
understood and agreed that no such action by any Underwriter shall be deemed an
action of the Responsible Parties.
(m) For the period beginning on the date of this Agreement and
ending 90 days after the Closing Date, the Responsible Parties and any trust
originated, directly or indirectly, by the Responsible Parties will not, without
the prior written consent of the Representative, offer to sell or sell notes
(other than the Notes) collateralized by, or certificates evidencing an
ownership interest in, student loans.
(n) 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 Responsible Parties or the Trust any brokerage or finder's fee
or other fee or commission as a result of any of the transactions contemplated
by this Agreement.
4. Representations and Warranties of the Seller. The Seller
represents and warrants to and agrees with the Underwriters that:
(a) The Seller is a duly organized and validly existing
corporation organized under the laws of the State of Delaware with the power and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted, except for such
power and authority the absence of which would not have a material adverse
effect on the Seller or its ability to consummate the transactions contemplated
by its Basic Documents.
(b) The Seller has full legal right, power, and authority to
enter into its Basic Documents and to carry out, give effect to, and consummate
the transactions contemplated thereby in accordance with the terms thereof.
(c) On or before the Closing Date, its Basic Documents will have
been duly authorized, executed and delivered by the Seller. The execution,
delivery and performance of its Basic Documents and the issuance and sale of the
Notes and compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or
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constitute a default under, the certificate of incorporation or bylaws of the
Seller or any agreement or instrument to which the Seller is a party or by which
the Seller is bound or to which any of the properties of the Seller is subject
that could reasonably be expected to have a material adverse effect on the
transactions contemplated by the Basic Documents.
(d) There are no legal or governmental proceedings pending or,
to the knowledge of the Seller, threatened, against the Seller, or to which the
Seller or any of its properties is subject, of a character required to be
disclosed in the Prospectus that are not disclosed in the Prospectus.
(e) The Seller is not and, after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as defined in the 1940
Act.
(f) The representations and warranties made by the Seller in its
Basic Documents will be true and correct in all material respects on and as of
the Closing Date.
5. Representations and Warranties of ELS. ELS represents
and warrants to and agrees with the Underwriters that:
(a) ELS is a duly organized and validly existing corporation
organized under the laws of the State of Delaware corporation with the power and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted, except for such
power and authority the absence of which would not have a material adverse
effect on ELS or its ability to consummate the transactions contemplated by its
Basic Documents.
(b) ELS has full legal right, power, and authority to enter into
its Basic Documents and to carry out, give effect to, and consummate the
transactions contemplated thereby in accordance with the terms thereof.
(c) On or before the Closing Date, its Basic Documents will have
been duly authorized, executed and delivered by ELS. The execution, delivery and
performance of its Basic Documents and the issuance and sale of the Notes and
compliance with the terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
the certificate of incorporation or bylaws of ELS or any agreement or instrument
to which ELS is a party or by which ELS is bound or to which any of the
properties of ELS is subject that could reasonably be expected to have a
material adverse effect on the transactions contemplated by the Basic Documents.
(d) There are no legal or governmental proceedings pending or,
to the knowledge of ELS, threatened, against ELS, or to which ELS or any of its
properties is subject, of a character required to be disclosed in the Prospectus
that are not disclosed in the Prospectus.
(e) ELS is not and, after giving effect to the offering and sale
of the Notes and the application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in the 1940 Act.
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(f) The representations and warranties made by ELS in its Basic
Documents will be true and correct in all material respects on and as of the
Closing Date.
6. Representations and Warranties of the Depositor. The
Depositor represents and warrants to and agrees with the Underwriters that:
(a) The Depositor is duly organized and validly existing as a
Delaware limited liability company with the power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted, except for such power and authority
the absence of which would not have a material adverse effect on the Depositor
or its ability to consummate the transactions contemplated its Basic Documents.
(b) The Depositor has full legal right, power, and authority to
enter into its Basic Documents and to carry out, give effect to, and consummate
the transactions contemplated thereby in accordance with the terms thereof.
(c) On or before the Closing Date, its Basic Documents will have
been duly authorized, executed and delivered by the Depositor. The execution,
delivery and performance of its Basic Documents and the issuance and sale of the
Notes and compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, the certificate of formation or the operating agreement of the
Depositor or any agreement or instrument to which the Depositor is a party or by
which the Depositor is bound or to which any of the properties of the Depositor
is subject that could reasonably be expected to have a material adverse effect
on the transactions contemplated by the Basic Documents.
(d) There are no legal or governmental proceedings pending or,
to the knowledge of the Depositor, threatened, against the Depositor, or to
which the Depositor or any of its properties is subject, of a character required
to be disclosed in the Prospectus that are not disclosed in the Prospectus.
(e) The Depositor is not and, after giving effect to the
offering and sale of the Notes and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined in
the 1940 Act.
(f) The representations and warranties made by the Depositor in
its Basic Documents will be true and correct in all material respects on and as
of the Closing Date.
7. Agreements of the Responsible Parties. The Responsible
Parties each agree with the Underwriters as follows:
(a) The Responsible Parties will prepare a supplement to the
Prospectus setting forth the amount of the Notes covered thereby and the terms
thereof not otherwise specified in the Prospectus, the price at which the Notes
are to be purchased by the Underwriters, either the initial public offering
price or the method by which the price at which the Notes are to be sold will be
8
determined, the selling concessions and reallowances, if any, and such other
information as the Representative and the Responsible Parties deem appropriate
in connection with the offering of the Notes, and the Responsible Parties will
timely file or cause to be filed such supplement to the prospectus with the SEC
pursuant to Rule 424(b) under the Act, but the Responsible Parties 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 they shall
first have delivered copies of such amendments or supplements to the
Underwriters, with reasonable opportunity to comment on such proposed amendment
or supplement or if the Underwriters shall have reasonably objected thereto
promptly after receipt thereof; the Responsible Parties will immediately advise
the Representative or its 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 Responsible Parties are advised
thereof, and will use their reasonable best efforts to prevent the issuance of
any such order or communication and to obtain as soon as possible its lifting,
if issued.
(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
such 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
Responsible Parties promptly will prepare and file with the SEC, an amendment or
supplement to such Prospectus that will correct such statement or omission or an
amendment that will effect such compliance.
(c) The Responsible Parties will immediately inform the
Representative (i) of the receipt by any of the Responsible Parties or the Trust
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 any of the Responsible Parties or the Trust is a party
relating to the offering or sale of the Notes.
(d) The Responsible Parties will furnish to the Underwriters,
without charge, copies of the Registration Statement (including all documents
and exhibits thereto or incorporated by reference therein), the Prospectus, and
all amendments and supplements to such documents relating to the Notes, in each
case in such quantities as the Underwriters may reasonably request.
(e) No amendment or supplement relating to or affecting the
Notes will be made to the Registration Statement or Prospectus unless the
Representative shall have previously been advised thereof and the Representative
shall not have reasonably objected thereto after being so advised.
(f) The Responsible Parties will cooperate with the
Representative and with its counsel in connection with the qualification of, or
procurement of exemptions with respect to, the Notes for offering and sale by
the Underwriters and by dealers under the securities or Blue Sky laws of such
jurisdictions as any Underwriter may designate and will file or cause the Trust
to file such consents to service of process or other documents necessary or
appropriate in order to effect such
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qualification or exemptions; provided that in no event shall the Responsible
Parties or the Trust 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.
(g) The Responsible parties and the Trust consent to the use, in
accordance with the securities or Blue Sky laws of such jurisdictions in which
the Notes are offered by the Underwriters and by dealers, of the Prospectus.
(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 a
series of Notes is conditional upon the furnishing of documents or the taking of
any other actions by the Responsible Parties or the Trust, the Responsible
Parties shall cause to be furnished such documents and such other reasonable
actions to be taken.
(i) For so long as the Notes are outstanding, the Responsible
Parties will furnish to the Representative (i) as soon as available, a copy of
each document relating to the Trust or 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 Responsible Parties or the Trust as the Representative may
reasonably request from time to time insofar as such information reasonably
relates to the Registration Statement or the transactions contemplated by the
Basic Documents.
(j) For a period from the date of this Agreement until the
retirement of the Notes, the Responsible Parties will deliver or cause to be
delivered to the Representative the annual statements of compliance and the
annual independent certified public accountants' reports furnished to the
Indenture Trustee or the Trust pursuant to the Servicing Agreement as soon as
such statements and reports are furnished to the Indenture Trustee or the
Responsible Parties.
(k) On or before the date the Financed Student Loans are
transferred to the Trust, the Trust shall ▇▇▇▇ its accounting and other records,
if any, relating to the Financed Eligible Loans and the Responsible Parties
shall ▇▇▇▇ their respective computer records relating to the Financed Eligible
Loans to show the absolute ownership by the Trust Eligible Lender Trustee, as
eligible lender of, and the interest of the Trust in, the initial Financed
Eligible Loans, and from and after each Closing Date the Trust and the
Responsible Parties will take such actions with respect to the respective
records of each with regard to any additional acquired Eligible Loans at the
time of the acquisition thereof by the Trust Eligible Lender Trustee on behalf
of the Trust, and the Trust and the Responsible Parties shall not take, nor
permit any other person to take, any action inconsistent with the ownership of,
and the interest of the Trust in, the Financed Eligible Loans, other than as
permitted by the Basic Documents.
(l) If this Agreement shall terminate or shall be terminated
after execution and delivery pursuant to any provisions hereof (otherwise than
by notice given by an Underwriter terminating this Agreement pursuant to Section
10 or Section 11 hereof) or if this Agreement shall be terminated by the
Representative because of any failure or refusal on the part of the Responsible
Parties to comply with the terms or fulfill any of the conditions of this
Agreement, the Seller agrees to reimburse the Underwriters for all out-of-pocket
expenses (including reasonable fees and
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expenses of their counsel) reasonably incurred in connection herewith. In no
event shall the Responsible Parties or the Trust be liable to the Underwriters
for loss of anticipated profits from the transactions contemplated by this
Agreement.
(m) The net proceeds from the sale of the Notes hereunder will
be applied substantially in accordance with the description set forth in the
Prospectus.
(n) The Seller's sale and transfer of the Financed Eligible
Loans to the Depositor and the Depositor's sale and transfer of Financed
Eligible Loans to the order of the Trust Eligible Lender Trustee on behalf of
the Trust as of the applicable sale date will vest in the Trust Eligible Lender
Trustee on behalf of the Trust all of the Seller's and the Depositor's right,
title and interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
(o) The Trust's assignment of the Financed Eligible Loans to the
Indenture Trustee pursuant to the Indenture will vest in the Indenture Trustee,
for the benefit of the Noteholders, a first priority perfected security interest
therein, subject to no prior lien, mortgage, security interest, pledge, adverse
claim, charge or other encumbrance.
(p) 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 Responsible Parties will prepare, and file or transmit for filing with the
SEC in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies
of an amended Prospectus containing all information so omitted.
(q) As soon as practicable, but not later than 16 months after
the date of this Agreement, the Responsible Parties will cause the Trust to make
generally available to the Noteholders an earnings statement covering a period
of at least 12 months beginning after the later of (i) the effective date of
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 SEC prior to the date of this
Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(r) For the period beginning on the date of this Agreement and
ending 90 days after the Closing Date, the Responsible Parties and any trust
originated, directly or indirectly, by the Responsible Parties will not, without
the prior written consent of the Representative, offer to sell or sell notes
(other than the Notes) collateralized by, or certificates evidencing an
ownership interest in, student loans.
8. Indemnification and Contribution. (a) The Responsible
Parties agree to jointly and severally indemnify and hold harmless each
Underwriter 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 (including
reasonable costs of investigation) 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 the preliminary prospectus supplement dated ___________, 2003 (the
11
"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, 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 Responsible Parties by or on behalf of any Underwriter through the
Representative 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 13 of this Agreement; provided, however, that the foregoing
indemnity with respect to the Prospectus or the Preliminary Prospectus shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased Notes, if such person did not receive a copy of the
Prospectus (as then amended or supplemented) at or prior to the written
confirmation of the sale of such Notes to such person and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability.
(b) If any action, suit or proceeding shall be brought against
an Underwriter or any person controlling an Underwriter in respect of which
indemnity may be sought against the Responsible Parties, 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 an indemnified party except to the extent that the indemnifying
party is materially prejudiced by such omission. Such indemnifying parties shall
assume the defense thereof, including the employment of counsel and payment of
all reasonable fees and expenses. Such 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 within a reasonable period of time, 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 representation of such indemnified party and
any indemnifying party by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been proposed) due to actual or potential differing
interests between them (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. The
indemnifying parties shall not be liable for any settlement of any such action,
suit or proceeding effected without their written consent, but if settled with
such written consent, or if there be a final judgment for the
12
plaintiff in any such action, suit or proceeding, the indemnifying parties agree
to indemnify and hold harmless the Underwriter and any such controlling person
from and against any loss, claim, damage, liability or expense by reason of such
settlement or judgment to the extent provided in paragraph (a).
(c) Each Underwriter agrees severally but not jointly to
indemnify and hold harmless the Responsible Parties and their respective
directors and officers, and any person who controls the Responsible Parties
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act to
the same extent as the indemnity from the Responsible Parties to such
Underwriter set forth in paragraph (a) hereof, but only with respect to
information relating to such Underwriter furnished in writing by or on behalf of
such Underwriter through the Representative expressly for use in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus, it being understood that the only such
information furnished by the Underwriters consists of the information described
in Section 13 of this Agreement. If any action, suit or proceeding shall be
brought against the Responsible Parties, any of their directors or officers, or
any such controlling person based on the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary prospectus
and in respect of which indemnity may be sought against an Underwriter pursuant
to this paragraph (c), such Underwriter shall have the rights and duties given
to the Responsible Parties by paragraph (b) above (except that if the
Responsible Parties shall have assumed the defense thereof no Underwriter shall
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, except as otherwise provided in paragraph (b) above), and
the Responsible Parties, their respective directors and officers, and any such
controlling person shall have the rights and duties given to such Underwriter by
paragraph (b) above.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under paragraphs (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 the
Responsible Parties on the one hand and the applicable Underwriter on the other
hand from the offering of the Notes, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Responsible Parties on the one hand and
such 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 the Responsible Parties on the one hand and such 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 Responsible
Parties bear to the total underwriting discounts and commissions received by
such Underwriter. The relative fault of the Responsible Parties on the one hand
and such Underwriter on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Responsible Parties on the one hand or by such
Underwriter on the
13
other hand and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The Responsible Parties and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 8 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 8, no Underwriter
shall be required to contribute any amount in excess of the underwriting
discounts and commissions applicable to the Notes hereunder. 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.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 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 8 and the
representations and warranties of the Responsible Parties 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 an Underwriter, the
Responsible Parties 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 any
Underwriter, any of the Responsible Parties 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 8.
9. Conditions of Closing. The obligations of the Underwriters
hereunder shall be subject (a) to the performance by the Trust of its
obligations to be performed hereunder or under the Indenture at or prior to the
Closing, (b) to the accuracy of and compliance with the representations,
warranties and covenants of the Responsible Parties contained herein, in each
case as of the time of delivery of this Agreement and as of the Closing, and (c)
in the discretion of the Underwriters, to the following further conditions:
(a) All actions required to be taken and all filings required to
be made by the Responsible Parties and the Trust 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 Responsible Parties or the Underwriters,
shall be contemplated by the SEC.
(b) Since the respective dates as of which information is given
in the Registration Statement (or any amendment or supplement thereto), except
as may otherwise be stated therein or contemplated thereby, there shall not have
occurred (i) any change, or any development involving a prospective change, in
or affecting the condition (financial or other), business, properties, net
worth,
14
or results of operations of the Responsible Parties not contemplated by
the Registration Statement, which in the opinion of the Representative, would
materially adversely affect the market for the Notes, or (ii) any event or
development which makes any statement made in the Registration Statement or
Prospectus untrue in any material respect or which, in the opinion of the
Responsible Parties and their counsel or the Underwriters and their counsel,
requires the filing of any amendment to or change in the Registration Statement
or Prospectus in order to state a material fact required by any law to be stated
therein or necessary in order to make the statements therein not misleading, if
amending or supplementing the Registration Statement or Prospectus to reflect
such event or development would, in the opinion of the Representative,
materially adversely affect the market for the Notes.
(c) None of the Responsible Parties shall have failed at or
prior to the Closing Date to have performed or complied in any material respect
with any of their respective agreements herein contained and required to be
performed or complied with by it hereunder at or prior to the Closing Date.
(d) Fitch Ratings ("Fitch"), ▇▇▇▇▇'▇ Investors Services, Inc.
("Moody's"), and Standard & Poor's ("S&P") shall have (1) rated the Series A
Notes "___", "___", and "___", respectively, and (2) rated the Series B Notes
"__", "__", and "__", respectively, and there shall not have been any
announcement by any of Fitch, Moody's or S&P that (i) it is downgrading any of
its ratings assigned to the Notes or (ii) it is reviewing its ratings assigned
the Notes with a view to possible downgrading, or with negative implications, or
direction not determined.
(e) At or prior to the Closing, the Representative shall have
received the following documents:
(1) opinions of ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, as counsel to the
Responsible Parties and the Trust, dated the Closing Date and addressed
to the Trust, the Indenture Trustee, the Representative, Fitch, Moody's
and S&P in form and substance reasonably satisfactory to the
Representative and its counsel regarding (i) general corporate
authority and other matters, (ii) true sale, non-consolidation for
bankruptcy purposes and other matters, (iii) the accuracy and
completeness of the Prospectus and the Registration Statement and
certain matters arising under the Trust Indenture Act and the 1940 Act,
and (iv) the perfection and priority of the security interests in the
Financed Student Loans and the Trust Estate;
(2) opinions of ▇▇▇▇▇▇▇▇ & Shohl LLP, as counsel to
Fifth Third Bank, in its capacity as Indenture Trustee, Co-Owner
Trustee, and Eligible Lender Trustee, dated the Closing Date and
addressed to the Trust, the Responsible Parties, the Representative,
Fitch, Moody's and S&P in form and substance reasonably satisfactory to
the Representative and its counsel, regarding the organization and
authority of the Indenture Trustee, Co-Owner Trustee, and Eligible
Lender Trustee and other matters;
(3) opinions of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., dated
the Closing Date, (i) addressed to the Representative in its capacity
as counsel to the Underwriters in form and substance reasonably
satisfactory to the Representative, and (ii) addressed to the
15
Trust, the Responsible Parties and the Representative in form and
substance reasonably satisfactory to the Representative regarding tax
matters;
(4) opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, dated the
Closing Date and addressed to Trust, the Indenture Trustee, the
Representative, Fitch, Moody's and S&P, (a) as counsel for the Owner
Trustee, and (b) as special Delaware counsel for the Trust, in each
case in form and substance reasonably satisfactory to the
Representative and its counsel;
(5) an opinion of counsel for each Guarantor, dated the
Closing Date and addressed to the Trust, the Responsible Parties, the
Indenture Trustee, the Representative, Fitch, Moody's and S&P, in form
and substance reasonably acceptable to the Representative and its
counsel;
(6) a certificate of each Guarantor, dated the Closing
Date and signed by the chief financial officer or other officer of the
Guarantor acceptable to the Representative, in form and substance
reasonably satisfactory to the Representative and its counsel;
(7) an opinion of counsel for each Subservicer, dated
the Closing Date and addressed to the Responsible Parties, the
Indenture Trustee, the Representative, in form and substance reasonably
satisfactory to the Representative and its counsel, Fitch, Moody's and
S&P ;
(8) a certificate of each Subservicer, dated the
Closing Date and signed by the chief financial officer or other officer
of the Subservicer acceptable to the Representative, in form and
substance reasonably satisfactory to the Representative and its
counsel;
(9) a certificate, dated the Closing Date and signed by
executive officers of the each of the Responsible Parties to the effect
that all the representations and warranties of the Responsible Parties
contained in their Basic Documents shall be true and correct in all
material respects on and as of the date thereof and on and as of the
Closing Date as if made on and as of the Closing Date;
(10) A "Ratings Letter" from each of Fitch, Moody's, and
S&P setting forth the ratings required under Section 9(d) hereof and
otherwise satisfactory to the Representative and counsel to the
Underwriters;
(11) Evidence satisfactory to the Representative 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 Delaware,
reflecting (i) the transfer of the interest of the Seller in the
Financed Student Loans and the proceeds thereof to the Depositor, (ii)
the transfer of the interest of the Depositor in the Financed Student
Loans and the proceeds thereof to the Trust, and (iii) the grant of the
security interest by the Trust in the Trust Estate (including the
Financed Student Loans) and the proceeds thereof to the Indenture
Trustee;
16
(12) Note specimens and a copy of the written order
of the Trust to authenticate and deliver the Notes;
(13) An executed copy or certified copy of an executed
copy of each of the Basic Documents, each Guarantee Agreement and such
further certificates and documents as the Representative shall have
reasonably requested;
(14) The letter from __________ dated the Closing Date,
and in form and substance satisfactory to the Representative, to the
effect that they have carried out certain specified procedures, not
constituting an audit, with respect to certain information regarding
the Financed Eligible Loans and setting forth the results of such
specified procedures;
(15) Evidence satisfactory to the Representative of the
completion of all actions necessary to effect the transfer of the
Financed Eligible Loans as described in the Prospectus and the
recordation thereof on the Seller's, the Depositor's, the Trust's and
the [Name of Subservicers'] computer systems; and
(16) Such additional legal opinions, certificates,
instruments and other documents as the Representative or counsel to the
Underwriters may reasonably request to evidence the truth and accuracy,
as of the date hereof and as of the Closing Date, of the Responsible
Parties' representations and warranties contained herein and of the
statements and information contained in the Prospectus and the due
performance and satisfaction by the Trust at or prior to the Closing of
all agreements then to be performed and all conditions then to be
satisfied by the Trust in connection with the transactions contemplated
by Basic Documents and the Prospectus.
If the Responsible Parties shall be unable to satisfy the conditions to
the obligations of the Underwriters contained in this Agreement, this Agreement
shall terminate and neither the Underwriters nor the Responsible Parties shall
be under any further obligation hereunder, except as provided in Section 9
hereof.
10. Expenses.
ELS agrees to cause the Trust 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 ELS and the Trust of their respective obligations hereunder:
(i) the preparation, printing or reproduction of the Registration Statement,
each Prospectus and each amendment or supplement to any of them, and each 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 each Preliminary Prospectus and each Prospectus and all amendments or
supplements to any of them as may be reasonably requested for use in connection
with the offering and sale of the Notes; (iii) the preparation, printing, ___
authentication, ___ issuance and delivery of certificates for the Notes; (iv)
the qualification of the Notes for offer and sale under the securities or "blue
sky" laws of such states as ELS and the Representative may agree (including the
reasonable fees, expenses and disbursements of counsel for the Underwriters
relating to the preparation, printing or
17
reproduction, and delivery of any blue sky survey prepared in connection with
such qualification); and (v) the fees and/or disbursements of (A) counsel for
the Trust and the Responsible Parties, (B) the Indenture Trustee and the
Eligible Lender Trustee and their counsel, (C) the Owner Trustee and its
counsel, (D) the Auction Agent and its counsel, (E) The Depository Trust Company
in connection with the book-entry registration of the Notes, and (F) Fitch,
Moody's and S&P for rating the Notes.
11. Effective Date of Agreement. This Agreement shall become
effective 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 Responsible Parties, by notifying the Representative, or by
the Representative, by notifying the Responsible Parties.
Any notice under this Section 11 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
12. Termination of Agreement. This Agreement shall be subject to
termination in the absolute discretion of the Representative, without liability
on the part of any Underwriter, by notice to the Responsible Parties, if prior
to the Closing Date, (i) trading in securities generally on the New York Stock
Exchange shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York state authorities, (iii) 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 on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Representative, impracticable or
inadvisable to commence or continue the offering of the Notes on the terms set
forth in the Prospectus, or to enforce contracts for the resale of the Notes by
the Underwriters, (iv) legislation shall be enacted by the Congress of the
United States or a decision by a court of the United States or the Tax Court of
the United States shall be rendered, or an officially published ruling,
regulation, proposed regulation or official statement by or on behalf of the
Treasury Department of the United States, the Internal Revenue Service or any
other governmental agency shall be made, with respect to federal taxation upon
revenues or other income of the general character expected to be pledged under
the Indenture or upon interest received on securities of the general character
of the Notes, or which would have the effect of changing, directly or
indirectly, the federal income tax consequences of interest on securities of the
general character of the Notes in the hands of the holders thereof, which in the
opinion of counsel to the Representative materially affects the market price of
the Notes, or (v) legislation shall be enacted by the States of Delaware or
Ohio, or a decision by a court of competent jurisdiction of the States of
Delaware or Ohio or any administrative tribunal of the States of Delaware or
Ohio or other governmental agency or department thereof shall be rendered with
respect to taxation by the States of Delaware or Ohio or any of their political
subdivisions upon revenues or other income of the general character expected to
be pledged under the Indenture, or upon interest received on securities of the
general character of the Notes, or which would have the effect of changing,
directly or indirectly, the tax consequences under the States of Delaware or
Ohio tax law of interest on securities of the general character of the Notes in
the hands of the holders thereof, which in the opinion of counsel to the
Representative materially affects the market price of the Notes. Notice of such
termination may be given to the Responsible Parties, by telegram, telecopy or
telephone and shall be subsequently confirmed by letter.
18
13. Information Furnished by the Underwriter. The statements set
forth under the heading "Plan of Distribution" in the Prospectus Supplement
dated ___________, 2003 constitute the only information furnished by or on
behalf of the Underwriters as such information is referred to in Sections 3(b)
and 8 hereof, and each Underwriter confirms that such statements relating to
such Underwriter are correct.
14. Computational Materials. (a) It is understood that the
Representative may prepare and provide to prospective investors certain
Computational Materials (as defined below) in connection with the Trust's
offering of the Notes, subject to the following conditions:
(1) The Representative 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
SEC to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & Co.
Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation, as made
applicable to other issuers and underwriters by the SEC in response to
the request of the Public Securities ___ Association dated May 24,
1994, and the No-Action Letter of February 17, 1995 issued by the SEC
to the Public Securities Association (collectively, the "▇▇▇▇▇▇/PSA
Letters").
(2) 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 the Representative.
(3) _ The ___ Representative ___ shall provide the
Responsible ___ Parties and the Trust with representative forms of all
Computational Materials prior to their first use, to the extent such
forms have not previously been approved by the Responsible Parties for
use by the Underwriters. The Representative shall provide to the
Responsible Parties and the Trust, for filing on Form 8-K as provided
in Section 14(b) hereof, copies of all Computational Materials that are
to be filed with the SEC pursuant to the ▇▇▇▇▇▇/PSA Letters. The
Representative may provide copies of the foregoing in a consolidated or
aggregated form. All Computational Materials described in this
subsection (a)(3) must be provided to the Responsible Parties not later
than 12:00 p.m., New York City time, one business day before filing
thereof is required pursuant to the terms of this Agreement.
(4) If the Representative does not provide the
Computational materials to the Responsible Parties pursuant to
subsection (a)(3) above, the Underwriters shall be deemed to have
represented, as of the applicable Closing Date, that they 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 SEC in accordance with the ▇▇▇▇▇▇/PSA
Letters.
(5) In the event of any delay in the delivery by the
Representative to the Responsible Parties and the Trust of all
Computational Materials required to be delivered in accordance with
subsection (a)(3) above, the Responsible Parties shall have the right
to
19
delay the release of the Prospectus to investors or to the
Underwriters, to delay the Closing Date and to take other appropriate
actions in each case as necessary in order to allow the Responsible
Parties and the Trust to comply with their agreement set forth in
Section 14(b) hereof to file the Computational Materials by the time
specified therein.
(b) The Responsible Parties and the Trust shall file the
Computational Materials (if any) provided to them by the Representative under
Section 14(a)(3) hereof with the SEC pursuant to a Current Report on Form 8-K no
later than 5:30 p.m., New York City time, on the date required pursuant to the
▇▇▇▇▇▇/PSA Letters
15. Representation of Underwriters. The Representative shall act
for the several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representative will be binding upon all the
Underwriters.
16. Miscellaneous.
(a) All notices, demands, and formal actions hereunder shall be
in writing and mailed, telegraphed or delivered to the following address or such
other address as either of the parties shall specify.
The Representative:
[Name and address
of Representative]
___________________
___________________
___________________
Attention: ___________________
The Responsible Parties:
c/o Education Lending Services, Inc.
▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
(b) This Agreement will inure to the benefit of and be binding
upon the parties hereto and their successors and assigns, and will not confer
any rights upon any other Person. The terms "successors" and "assigns" shall not
include any purchaser of any of the Notes from any Underwriter merely because of
such purchase.
(c) The respective indemnities, agreements, representations,
warranties and other statements of the Responsible Parties, the Trust, or their
officers and of the Underwriters set forth in or made pursuant to this Agreement
or contained in notes of officers of the Company submitted pursuant hereto shall
remain operative and in full force and effect, regardless of any investigation
or statement as to the results thereof, made by or on behalf of the
Underwriters, the Responsible Parties, the Trust or any of their respective
representatives, officers of directors or
20
any controlling person, and will survive delivery of and payment for the Notes
or termination or cancellation of this Agreement.
(d) The indemnity agreement of the Responsible Parties contained
in Section 8 of this Agreement shall be in addition to any liability which the
Responsible Parties may otherwise have. The indemnity agreement of the
Underwriters contained in Section 8 of this Agreement shall be in addition to
any liability which the Underwriters may otherwise have.
(e) Section or paragraph headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed that
such Section headings are not a part of this Agreement and will not be used in
the interpretation of any provisions of this Agreement.
(f) This Agreement shall not be assigned by the Trust or the
Underwriters without the written consent of the Trust and each Underwriter.
(g) If any provision of this Agreement shall be held or deemed
to be or shall, in fact, be inoperative, invalid or unenforceable as applied in
any particular case in any jurisdiction because it conflicts with any provisions
of any constitution, statute, rule of public policy, or any other reason, such
circumstances shall not have the effect of rendering the provision in question
inoperable or unenforceable in any other case or circumstance, or of rendering
any other provision or provisions of this Agreement invalid, inoperative or
unenforceable to any extent whatever.
(h) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
or to be performed within the State of New York without giving effect to
conflict of laws principles thereof. The Responsible Parties and the Trust
hereby submit to the non-exclusive jurisdiction of the Federal and state courts
in the Borough of Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
(i) Notwithstanding anything to the contrary herein or in the
Indenture, any obligation of the Trust created by or arising out of this
Agreement shall be a limited obligation of the Trust, payable solely from Trust
Estate available therefor under and in accordance with the Indenture, and shall
not constitute a charge against the general credit of the Trust.
(j) This Agreement may be executed in several counterparts, each
of which shall be regarded as an original and all which shall constitute one and
the same document.
[remainder of page intentionally left blank; signature page follows]
21
Please confirm that the foregoing correctly sets forth the agreement
among the Responsible Parties, the Trust, and the Underwriters.
Very truly yours,
Education Lending Group, Inc.
By:
---------------------------------
Name:
Title:
Education Lending Services, INC.
By:
---------------------------------
Name:
Title:
EDUCATION FUNDING CAPITAL I, LLC
By:
---------------------------------
Name:
Title:
[EDUCATION FUNDING CAPITAL
TRUST-__,] by Fifth Third
Bank, not in its individual
capacity, but solely as
Co-Owner Trustee on behalf
of the Trust
By:
---------------------------------
Name:
Title:
Confirmed as of the date first above mentioned.
[Name of Underwriter]
Acting on behalf of itself and as Representative
of the Underwriters named herein
By:
---------------------------------
Name:
Title:
APPENDIX A
----------------------------------------
[Name of [Name of
Series of Notes Underwriter] Underwriter] Total
-------------------- ------------------- -------------------
Series 2003A-_ Notes
Series 2003A-_ Notes
Series 2003A-_ Notes
Series 2003A-_ Notes
Series 2003A-_ Notes
Series 2003A-_ Notes
Series 2003A-_ Notes
Series 2003A-_ Notes
Series 2003B-_ Notes
-------------------- ------------------- -------------------
Total..................... $ $ $
==================== =================== ====================
Interest Rate
Series 2003A- Notes.
Series 2003A- Notes.
Series 2003A- Notes.
Series 2003A- Notes.
Series 2003A- Notes.
Series 2003A- Notes.
Series 2003A- Notes.
Series 2003A- Notes.
Series 2003B- Notes.
2