Underwriting Agreement (2006)Full Document 

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$1,025,000,000
 
THE NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-4
 
 
Student Loan Asset Backed Notes
 
consisting of
 
$
285,000,000
Class A-1 Notes
$
256,000,000
Class A-2 Notes
$
134,000,000
Class A-3 Notes
$
200,000,000
Class A-4 Notes
$
200,000,000
Class A-IO Notes (initial notional amount)
$
52,000,000
Class B Notes
$
51,000,000
Class C Notes
$
47,000,000
Class D Notes
 
UNDERWRITING AGREEMENT
 
November 29, 2006
 
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Greenwich Capital Markets, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830,
 
Ladies and Gentlemen:
 
The National Collegiate Funding LLC, a Delaware limited liability company (“National Collegiate Funding”), has authorized The National Collegiate Student Loan Trust 2006-4, a Delaware statutory trust (the “Trust”), to sell to Goldman, Sachs & Co., J.P. Morgan Securities Inc. and Greenwich Capital Markets, Inc. (each an “Underwriter” and collectively, the “Underwriters”), pursuant to the terms of this Underwriting Agreement (this “Agreement”), $1,025,000,000 aggregate principal amount (and in the case of the A-IO Notes, $200,000,000 aggregate notional amount) of the Trust’s Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, Class A-IO Notes, Class B Notes, Class C Notes and Class D Notes (collectively, the “Offered Notes”) in the classes and aggregate principal or reference amounts set forth on Schedule A hereto. The Offered Notes will be issued under an Indenture, dated as of December 1, 2006 (the “Indenture”), between the Trust and U.S. Bank National Association, a national banking association (“U.S. Bank”), as indenture trustee (the “Indenture Trustee”). Upon issuance, the Offered Notes will be secured by, among other things, Financed Student Loans (as defined in the Indenture) pledged to the Indenture Trustee. The Financed Student Loans will be serviced by The Pennsylvania Higher Education Assistance Agency (“PHEAA”) and one or more additional third party servicers (each, a “Servicer” and collectively, the “Servicers”) pursuant to the servicing agreements listed on Schedule B hereto (collectively, the “Servicing Agreements”), which servicing agreements will be assigned to the Trust by The First Marblehead Corporation (“FMC”), as of December 7, 2006.
 
This Agreement, along with (i) the note purchase agreements listed on Schedule C hereto (collectively, the “Student Loan Purchase Agreement”), (ii) the Servicing Agreements, (iii) the Indenture, (iv) the Administration Agreement dated as of December 7, 2006 among the Trust, Wilmington Trust Company (the “Trustee”), the Indenture Trustee, National Collegiate Funding and First Marblehead Data Services, Inc., (v) the Back-up Administration Agreement, dated as of December 7, 2006, among the Trust, the Trustee, the Indenture Trustee, National Collegiate Funding and U.S. Bank, as the back-up administrator, (vi) the Deposit and Sale Agreement dated as of December 7, 2006 (the “Deposit and Sale Agreement”) between National Collegiate Funding and the Trust and (vii) the Trust Agreement dated as of December 7, 2006, among National Collegiate Funding, as Depositor, and TERI, as Owners, and Wilmington Trust Company, as Trustee are collectively referred to as the “Basic Documents.”
 
Capitalized terms used herein without definition shall have the meanings ascribed to them in the Indenture.
 
Agreements to Sell and Purchase. National Collegiate Funding hereby agrees, subject to all the terms and conditions set forth herein, to cause the Trust to sell to the Underwriters and, upon the basis of the representations, warranties and agreements of National Collegiate Funding contained herein and subject to all the terms and conditions contained herein, each Underwriter, severally and not jointly, agrees to purchase from the Trust, such principal amount (or in the case of the Class A-IO Notes, reference amount) of the Offered Notes set forth next to the name of such Underwriter on Schedule A hereto at such respective purchase prices as are set forth on Schedule A hereto.
 
Delivery of the Offered Notes and Payment Therefor. Delivery to the Underwriters of and payment for the Offered Notes shall be made at the office of Thacher Proffitt & Wood LLP at 10:00 a.m., New York City time on December 7, 2006 (the “Closing Date”). The place of such closing and the Closing Date may be varied by agreement between the Underwriters, National Collegiate Funding and the Trust.
 
The Offered Notes will be delivered to the Underwriters against payment of the purchase price therefor to the Trust in Federal funds, by wire transfer to an account at a bank acceptable to the Underwriters, or such other form of payment as to which the parties may agree. Unless otherwise agreed to by National Collegiate Funding and the Underwriters, each Class of Offered Notes will be evidenced by a single global security in definitive form deposited with the Indenture Trustee as custodian for The Depository Trust Company (“DTC”) and/or by additional definitive securities, and will be registered, in the case of the global classes of Offered Notes, in the name of Cede & Co. as nominee of DTC, and in the other cases, in such names and in such denominations as the Underwriters shall request prior to 1:00 p.m., New York City time, no later than the Business Day preceding the Closing Date. The Offered Notes to be delivered to the Underwriters shall be made available to the Underwriters in New York, New York, for inspection and packaging not later than 9:30 a.m., New York City time, on the Business Day next preceding the Closing Date.
 
Representations and Warranties of National Collegiate Funding. National Collegiate Funding represents and warrants to each of the Underwriters that:
 
A registration statement on Form S-3 (No 333-128413), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Offered Notes and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the “Act”), has been filed with the Securities and Exchange Commission (the “SEC” or the “Commission”) and such registration statement, as amended, has become effective within the three years prior to the Closing Date and is still effective; such registration statement, as amended, and the prospectus relating to the sale of the Offered Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including the base prospectus, any prospectus supplement (the “Prospectus Supplement”) (including static pool information deemed excluded pursuant to Regulation AB Item 1105(d)) filed with the Commission pursuant to Rule 424(b) under the Act, the information deemed to be a part thereof pursuant to Rule 430A(b) under the Act, and the information incorporated by reference therein) are respectively referred to herein as the “Registration Statement” and the “Prospectus”; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement. The Trust has prepared a Free Writing Prospectus (as defined herein) that contains substantially all information that will appear in the Prospectus Supplement other than the Underwriting section (such Free Writing Prospectus, together with the base prospectus, the “Definitive Free Writing Prospectus”). The Trust will prepare a term sheet containing the final terms for all classes of the Offered Notes (except for the interest rates on the Offered Notes) together with substantially all of the information that will appear in the Prospectus Supplement including the Underwriting section (except for the allocation of the Offered Notes among the Underwriters) that is not included in the Definitive Free Writing Prospectus (the “Term Sheet”) (the Definitive Free Writing Prospectus and the Term Sheet shall be referred to as the “Pricing Information Package”). The Pricing Information Package shall be provided to the Underwriters for delivery to each investor prior to the time of Contract of Sale (as defined herein).
 
On the applicable effective date of each part of the Registration Statement, the Registration Statement and the Prospectus conformed in all respects to the requirements of the Act, the rules and regulations thereunder (the “Rules and Regulations”) and the Trust Indenture Act of 1939, as amended, and the rules and regulations thereunder (the “Trust Indenture Act”), and, did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and on the date of this Agreement and on the Closing Date, the Registration Statement and the Prospectus will conform in all respects to the requirements of the Act, the Rules and Regulations and the Trust Indenture Act, and did not include or will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to statements in or omissions from the Registration Statement or the Prospectus based upon written information furnished to National Collegiate Funding by the Underwriters, specifically for use therein, which is limited to the information set forth in Section 11 of this Agreement. In addition, the Pricing Information Package, as of the date of Contract of Sale and as of the Closing Date, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
 
The Commission has not issued and, to the best knowledge of National Collegiate Funding, is not threatening to issue any order preventing or suspending the use of the Registration Statement.
 
The National Collegiate Funding is not, as of the first date upon which it delivers the Definitive Free Writing Prospectus or as of the date of Contract of Sale, an Ineligible Issuer, as such term is defined in Rule 405 under the Act. Assuming that the Notes are issued in accordance with the provisions of the Indenture and distributed in accordance with the terms of this Agreement and as described in the Definitive Free Writing Prospectus and in the Prospectus, the Notes are “asset backed securities” within the meaning of, and satisfy the requirements for use of, Form S-3 under the Act.
 
As of the Closing Date, each consent, approval, authorization or order of, or filing with, any court or governmental agency or body which is required to be obtained or made by National Collegiate Funding or its affiliates for the consummation of the transactions contemplated by this Agreement shall have been obtained, except as otherwise provided in the Basic Documents.
 
The Indenture has been duly and validly authorized by National Collegiate Funding and, upon its execution and delivery by the Trust and assuming due authorization, execution and delivery by the Indenture Trustee, will be a valid and binding agreement of the Trust, enforceable in accordance with its respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and conform in all material respects to the description thereof in the Prospectus. The Indenture has been duly qualified under the Trust Indenture Act with respect to the Offered Notes.
 
The Offered Notes have been duly authorized by the Trust and the National Collegiate Funding, respectively, and the Offered Notes to be issued on the Closing Date, when executed by the Trust and authenticated by the Indenture Trustee in accordance with the Indenture and delivered to the Underwriters against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Trust or National Collegiate Funding, as applicable, entitled to the benefits of the Indenture and enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, moratorium, fraudulent conveyance or other similar laws relating to or affecting creditors’ rights generally and court decisions with respect thereto, and the Offered Notes and the Basic Documents will conform in all material respects to the description thereof in the Prospectus and the Pricing Information Package.
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