EXHIBIT 1.1
SLM EDUCATION CREDIT FUNDING LLC
STUDENT LOAN-BACKED NOTES
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UNDERWRITING AGREEMENT
Xxxxx 0, 0000
Xxxxxxxx Bank Securities Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 XXXX, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
From time to time, SLM Education Credit Management Corporation ("SLM
Education Credit"), a Delaware corporation, and SLM Education Credit Funding
LLC, a Delaware limited liability company and a wholly-owned subsidiary of SLM
Education Credit (the "Company"), propose to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine.
Subject to the terms and conditions stated herein and therein, the
Company proposes to cause the Trust specified in the applicable Pricing
Agreement to issue and sell to the firms named in Schedule I to the applicable
Pricing Agreement (each firm constituting the "Underwriter" with respect to such
Pricing Agreement and the securities specified therein) certain of such Trust's
Student Loan-Backed Notes (the "Notes") specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the "Designated Securities"),
less the principal amount of Designated Securities covered by Delayed Delivery
Contracts, if any, as provided in Section 3 hereof and as may be specified in
Schedule II to such Pricing Agreement (with respect to such Pricing Agreement,
any Designated Securities to be covered by Delayed Delivery Contracts are herein
sometimes referred to as "Contract Securities" and the Designated Securities to
be purchased by the Underwriters (after giving effect to the deduction, if any,
for Contract Securities) are herein sometimes referred to as "Underwriters'
Securities").
The Securities may be sold from time to time in one or more Series. Each
Series of Securities, which will include one or more classes of Notes and may
include one or more classes of Student Loan-Backed Certificates (the
"Certificates," and, together with the Notes, the "Securities") will be issued
by a Trust to be formed with respect to such Series (each, a "Trust"). Each
Trust will be formed pursuant to a trust agreement (a "Trust Agreement") to be
entered into between the Company and the Trustee or Eligible Lender Trustee, as
applicable, specified in the related Pricing Agreement (the Trustee and Eligible
Lender Trustee collectively, the "Trustee"). The Notes of each Series will be
issued and secured pursuant to an indenture (an "Indenture")
between the Trust and the Indenture Trustee specified in the related Pricing
Agreement (the "Indenture Trustee"). The Certificates of a Series will be issued
pursuant to the related Trust Agreement and will represent fractional undivided
interests in the Trust created thereby. The property of each Trust will include,
among other things, educational student loans to students and/or parents of
dependent students ("Student Loans").
With respect to each Trust, (i) the Company will acquire the related
Student Loans from SLM Education Credit pursuant to a Seller Sale Agreement and
(ii) the Company will sell the related Student Loans to such Trust pursuant to a
Depositor Sale Agreement. With respect to each Series, Xxxxxx Xxx Servicing
L.P., as servicer (the "Servicer"), will enter into a servicing agreement (a
"Servicing Agreement") with the Trust, the Administrator, the Trustee and the
Indenture Trustee with respect to the related Student Loans. Xxxxxx Mae, Inc.
("Xxxxxx Xxx"), as administrator (in such capacity, the "Administrator"), will
enter into an Administration Agreement with the Company, the Servicer, the
Indenture Trustee and the Trust, dated as of March 1, 2003, with respect to the
Student Loans to be held by the Trust.
The terms and conditions of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the related Indenture.
Capitalized terms used but not defined herein or in any Pricing
Agreement shall have the meanings ascribed thereto in the related Indenture.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriter of such Securities, for whom the firms designated as
representatives of the Underwriter of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriter of such Designated Securities, the names of the Underwriter of such
Designated Securities, the names of the Representatives of such Underwriter and
the principal amount of such Designated Securities to be purchased by each
Underwriter and whether any of such Designated Securities shall be covered by
Delayed Delivery Contracts (as defined in Section 3 hereof) and shall set forth
the date, time and manner of delivery of such Designated Securities and payment
therefor. The Pricing Agreement shall also specify (to the extent not set forth
in the Indenture and the registration statement and prospectus with respect
thereto) the terms of such Designated Securities. A Pricing Agreement shall be
in the form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company and SLM Education Credit represent and warrant to,
and agree with, each of the Underwriters as follows (it being agreed and
understood that the statements set forth in clauses (d), (e), (h), (i), (k),
(l), (n), (o) and (p) of this Section 2 with respect to SLM Education Credit or
the Servicer constitute representations, warranties and agreements of SLM
Education Credit only and not of the Company):
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(a) A registration statement on Form S-3 (File No.
333-98169), including a form of prospectus, in respect of the Securities
has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives
for each of the other Underwriters, have been declared effective by the
Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or, to the best of SLM Education Credit's or
the Company's knowledge, threatened by the Commission (any preliminary
prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(a) under the Act, is hereinafter called
a "Preliminary Prospectus;" the various parts of such registration
statement, including all exhibits thereto and the documents incorporated
by reference in the prospectus contained in the registration statement
at the time such part of the registration statement became effective but
excluding Form T-1, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively
called the "Registration Statement"; the prospectus relating to the
Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of
this Agreement, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Sections
13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended
or supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in the
form in which it is filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act, the Exchange Act and the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), as applicable, and
the rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and any further documents so
filed and incorporated by reference in the Prospectus or any
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further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act, the
Exchange Act and the Trust Indenture Act, as applicable, and the rules
and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities;
(c) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act, as applicable, and
the rules and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date
as to the Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities;
(d) None of the Company, SLM Education Credit or any of
their subsidiaries has sustained any material loss or interference with
its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus Supplement; and, since such date, there
has not been any material adverse change in the capital stock or
long-term debt of the Company or SLM Education Credit or any of their
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity or
results of operations of the Company or SLM Education Credit or any of
their subsidiaries or the transactions contemplated hereby, otherwise
than as set forth or contemplated in the Prospectus Supplement;
(e) The Company has been duly formed and is validly existing
as a limited liability company in good standing under the laws of the
state of Delaware, with power and authority (limited liability company
and otherwise) to own its properties and conduct its business as
described in the Prospectus and to consummate the transactions
contemplated therein and herein, and is a wholly-owned subsidiary of SLM
Education Credit. SLM Education Credit has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
state of Delaware, with power and authority (corporate and otherwise) to
own its properties and conduct its business as described in the
Prospectus and to consummate the transactions contemplated therein and
herein, and is a wholly-owned subsidiary of SLM Corporation. The
Servicer has been duly formed and is validly existing as a limited
partnership in good standing under the laws of the State of Delaware,
with power and authority (limited partnership and otherwise) to own its
properties and conduct its business as described in the Prospectus and
to consummate the transactions contemplated therein and herein, and is a
wholly-owned subsidiary of SLM Corporation;
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(f) All of the issued membership interests of the Company
have been duly and validly authorized and issued and are owned
beneficially and of record by SLM Education Credit;
(g) This Agreement has been, and each Pricing Agreement with
respect to the Designated Securities upon its execution and delivery by
the Company and SLM Education Credit will have been, duly authorized,
executed and delivered by the Company and SLM Education Credit. The
Securities have been duly authorized, and, when Designated Securities
are issued and delivered pursuant to this Agreement and the Pricing
Agreement with respect to such Designated Securities, and, in the case
of any Contract Securities, pursuant to Delayed Delivery Contracts with
respect to such Contract Securities, such Designated Securities and
Contract Securities will have been duly executed, authenticated, issued
and delivered. The Designated Securities will constitute valid and
legally binding obligations of the related Trust entitled to the
benefits provided by the Indenture, which will be substantially in the
form filed as an exhibit to the Registration Statement. The Indenture
has been duly authorized and duly qualified under the Trust Indenture
Act. The related Certificates are intended to represent undivided
ownership interests in the Trust created by the Trust Agreement, which
will be substantially in the form filed as an exhibit to the
Registration Statement, and will be entitled to the benefits provided by
the Trust Agreement. At the Time of Delivery (as defined in Section 4
hereof) for the Designated Securities, the Indenture and the Trust
Agreement will each constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles. The Indenture and Trust Agreement conform, and the
Designated Securities and the related Certificates will conform, to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to the Designated Securities;
(h) The issue and sale of the Securities and the compliance
by the Company with all of the provisions of the Securities, the
Indenture, the Trust Agreement, each of the Delayed Delivery Contracts,
this Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or SLM
Education Credit is a party or by which the Company or SLM Education
Credit is bound or to which any of the property or assets of the Company
or SLM Education Credit is subject, nor will such action result in any
violation of the provisions of the Company's certificate of formation or
operating agreement, SLM Education Credit's certificate of incorporation
or by-laws, or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or
SLM Education Credit or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company or SLM
Education Credit of the transactions contemplated by this Agreement or
any Pricing Agreement or the Indenture or any Delayed Delivery Contract,
except such as have been, or will have been prior to the Time of
Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Designated Securities by the
Underwriter;
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(i) The statements set forth in the Prospectus under the
captions "Description of the Notes" and "Description of the
Certificates" and set forth in the Prospectus Supplement under the
caption "Description of the Notes," insofar as they purport to
constitute a summary of the terms of the Notes and the Certificates, are
accurate, complete and fair;
(j) SLM Education Credit is not in violation of its
Certificate of Incorporation or By-laws, and the Company is not in
violation of its Certificate of Formation or Operating Agreement, and
neither SLM Education Credit nor the Company is in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
(k) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or SLM
Education Credit or any of its subsidiaries is a party or of which any
property of the Company or SLM Education Credit or any of its
subsidiaries is the subject which, if determined adversely to the
Company or SLM Education Credit or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, shareholders' equity
or results of operations of the Company or SLM Education Credit or any
of its subsidiaries or on the consummation of the transactions
contemplated hereby; and, to the best of the Company's and SLM Education
Credit's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(l) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment company"
or an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(m) Neither the Company, SLM Education Credit nor any of
their affiliates does business with the government of Cuba or with any
person or affiliate located in Cuba within the meaning of Section
517.075, Florida Statutes;
(n) PricewaterhouseCoopers LLP are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(o) At the Time of Delivery of the Designated Securities,
SLM Education Credit's representations and warranties in the related
Seller Sale Agreement and the Administration Agreement, the Company's
representations and warranties in the related Depositor Sale Agreement
and Trust Agreement and the Servicer's representations and warranties in
the Servicing Agreement will be true and correct in all material
respects; and
(p) In the event any of the Securities are purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery
Contracts has been duly authorized by the Company and SLM Education
Credit and, when executed and delivered by the Company and the purchaser
named therein, will constitute a valid and legally binding agreement of
the Company enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and any Delayed Delivery Contracts conform to
the description thereof in the Prospectus.
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3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
the Underwriters' Securities, the several Underwriters propose to offer such
Underwriters' Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Company may specify in Schedule II to the Pricing Agreement
applicable to any Designated Securities that the Underwriters are authorized to
solicit offers to purchase Designated Securities from the Company pursuant to
delayed delivery contracts (herein called "Delayed Delivery Contracts"),
substantially in the form of Annex III attached hereto but with such changes
therein as the Representatives and the Company may authorize or approve. If so
specified, the Underwriters will endeavor to make such arrangements, and as
compensation therefor the Company will pay to the Representatives, for the
accounts of the Underwriters, at the Time of Delivery, such commission, if any,
as may be set forth in such Pricing Agreement. Delayed Delivery Contracts, if
any, are to be with investors of the types described in the Prospectus and
subject to other conditions therein set forth. The Underwriters will not have
any responsibility with respect to the validity or performance of any Delayed
Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Designated Securities to be purchased by each Underwriter as
set forth in Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, the principal amount of Contract Securities
which the Company has been advised by the Representatives have been attributed
to such Underwriter, provided that, if the Company has not been so advised, the
amount of Contract Securities to be so deducted shall be, in each case, that
proportion of Contract Securities which the principal amount of Designated
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the total principal amount of the Designated Securities (rounded as the
Representatives may determine). The total principal amount of Underwriters'
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the total principal amount of Designated Securities set forth
in Schedule I to such Pricing Agreement less the principal amount of the
Contract Securities. The Company will deliver to the Representatives not later
than 3:30 p.m., New York City time, on the third business day preceding the Time
of Delivery specified in the applicable Pricing Agreement (or such other time
and date as the Representatives and the Company may agree upon in writing), a
written notice setting forth the principal amount of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by wire
transfer or by certified or official bank check or checks, payable to the order
of the Company in the funds specified in such Pricing Agreement, all in the
manner and at the place and time and date specified in such Pricing Agreement or
at such other place and time and date as the Representatives and the Company may
agree upon in writing, such time and date being herein called the "Time of
Delivery" for such Securities.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of the party designated in the
Pricing Agreement relating to such Underwriters' Securities in the amount of any
compensation payable by the Company to the Underwriters in respect of any
Delayed Delivery Contracts as provided in Section 3 hereof and the Pricing
Agreement relating to such Securities.
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5. The Company agrees with each of the Underwriters of any
Designated Securities, and SLM Education Credit agrees with such Underwriters
that it will cause the Company:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to make
no further amendment or any supplement to the Registration Statement or
Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Designated Securities and prior to the Time
of Delivery for such Designated Securities which shall be disapproved by
the Representatives for such Designated Securities promptly after
reasonable notice thereof; to advise the Representatives promptly of any
such amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of such Designated
Securities, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed with the Commission, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
prospectus relating to the Designated Securities, of the suspension of
the qualification of such Designated Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Designated Securities or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal
of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Designated
Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of such Designated Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented, in such quantities as the
Representatives may from time to time reasonably request, and, if the
delivery of a Prospectus is required at any time in connection with the
offering or sale of the Designated Securities and if at such time any
event shall have occurred 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 any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the
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Exchange Act or the Trust Indenture Act, to notify the Representatives
and, upon their request, to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To cause the Trust to make generally available to
holders of Designated Securities, as soon as practicable, but in any
event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Trust (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158); and
(e) To apply the net proceeds of the offering and sale of
the Designated Securities and the related Certificates that it receives
in the manner set forth in the Prospectus.
6. The Company and SLM Education Credit covenant and agree with the
several Underwriters that the Company or SLM Education Credit will pay or cause
to be paid the following: (i) the reasonable fees, disbursements and expenses of
the Company's and SLM Education Credit's counsel and accountants in connection
with the registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Trust Agreement, any Delayed Delivery Contracts, any Blue Sky and Legal
Investment Memoranda, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery
of the Designated Securities; (iii) all expenses in connection with the
qualification of the Designated Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment Surveys;
(iv) any fees charged by securities rating services for rating the Designated
Securities; (v) the cost of preparing the Designated Securities; (vi) the
reasonable fees and expenses of the Trustee and the Indenture Trustee and any
agent of the Trustee or the Indenture Trustee and the fees and disbursements of
counsel for the Trustee and the Indenture Trustee in connection with any
Indenture and Trust Agreement and the Designated Securities; and (vii) all other
costs and expenses incident to the performance of its obligations hereunder and
under any Delayed Delivery Contracts that are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the reasonable discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company and
SLM Education Credit in or incorporated by reference in the Pricing Agreement
relating to such Designated Securities are, at and as of the Time of Delivery
for such Designated Securities, true and correct, the condition that the Company
and SLM Education Credit shall have performed all of their obligations hereunder
theretofore to be performed, and the following additional conditions:
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(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with;
(b) Counsel for the Underwriters shall have furnished
Representatives such opinion or opinions, substantially in the form
attached hereto as Annex II(a), dated the Time of Delivery for such
Designated Securities, with respect to the Designated Securities and
such other related matters as the Representatives may reasonably
request;
(c) Internal counsel for the Company, SLM Education Credit
and the Servicer, satisfactory to the Representatives, shall have
furnished to the Representatives a written opinion or opinions, dated
the Time of Delivery for such Designated Securities, substantially in
the form attached hereto as Annex II(b) or as is otherwise satisfactory
to the Representatives;
(d) Special counsel for the Company, SLM Education Credit
and the Servicer, satisfactory to the Representatives, shall have
furnished to the Representatives a written opinion or opinions, dated
the Time of Delivery for such Designated Securities, substantially in
the form attached hereto as Annex II(a) or as is otherwise satisfactory
to the Representatives;
(e) Counsel for the Trustee, satisfactory to the
Representatives, shall have furnished to the Representatives a written
opinion or opinions, dated the Time of Delivery for such Designated
Securities, substantially in the form attached hereto as Annex II(c) or
as is otherwise satisfactory to the Representatives;
(f) Counsel for the Indenture Trustee, satisfactory to the
Representatives, shall have furnished to the Representatives a written
opinion or opinions, dated the Time of Delivery for such Designated
Securities, substantially in the form attached hereto as Annex II(d) or
as is otherwise satisfactory to the Representatives;
(g) At the time a Preliminary Prospectus relating to such
Designated Securities was distributed and on the date of the Pricing
Agreement for such Designated Securities, the independent public
accountants of the Company and SLM Education Credit shall have furnished
to the Representatives a letter or letters with respect to the Company,
SLM Education Credit, the statistical and financial information
contained in the Preliminary Prospectus and the Prospectus and certain
agreed upon procedures with respect to the issuance and offering of the
Designated Securities and the related Student Loans, in form and
substance satisfactory to the Representatives and in each case
confirming that such accountants are independent public accountants with
the meaning of the Act and the applicable rules and regulations
thereunder;
(h) (i) Neither the Company nor SLM Education Credit shall
have sustained any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus Supplement, and (ii) since such date, there shall not have
been any material adverse change in the capital stock or long-term debt
of the Company or SLM Education Credit or any such change, or any
development involving a prospective such change, in
10
or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company or SLM
Education Credit otherwise than as set forth or contemplated in the
Prospectus Supplement, the effect of which, in any such case described
in clause (i) or (ii), is in the judgment of the Representatives so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Underwriters'
Securities on the terms and in the manner contemplated in the Prospectus
as first amended or supplemented relating to the Designated Securities;
(i) On or after the date of the Pricing Agreement relating
to the Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or any setting of
minimum prices for trading on such exchange; (ii) a general moratorium
on commercial banking activities declared by either Federal or New York
State authorities; or (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in
this clause (iii) in the reasonable judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Underwriters' Securities on the terms
and in the manner contemplated in the Prospectus as theretofore amended
or supplemented relating to the Designated Securities;
(j) Each of the Company and SLM Education Credit shall have
furnished or caused to be furnished to the Representatives at the Time
of Delivery for the Designated Securities a certificate or certificates
of officers of the Company or SLM Education Credit, as the case may be,
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company or SLM Education Credit,
as the case may be, herein at and as of such Time of Delivery, as to the
performance by the Company or SLM Education Credit, as the case may be,
of all of their obligations hereunder to be performed at or prior to
such Time of Delivery, as to the matters set forth in subsections (a),
(h) and (i) of this Section and as to such other matters as the
Representatives may reasonably request;
(k) At the Time of Delivery, the aggregate principal amount
of the Underwriters' Securities as specified in the related Pricing
Agreement for the Designated Securities shall have been sold by the
Company to the Underwriters, and the aggregate amount of the related
Certificates, if any, as specified in the related underwriting agreement
for such Certificates shall have been sold by the Company to the
underwriters specified in such underwriting agreement; and
(l) The Designated Securities shall be rated as set forth in
the related Prospectus by the Rating Agency (or Agencies) specified in
such Prospectus, and such Rating Agency or Agencies shall not have
placed the Designated Securities under surveillance or review with
negative implications.
8. (a) The Company, SLM Education Credit and SLM Corporation,
jointly and severally, will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated Securities, or
any amendment or supplement thereto, or arise out of or are based upon the
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
11
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company, SLM
Education Credit and SLM Corporation shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company, SLM Education Credit or SLM Corporation by
any Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company and SLM Education Credit against any losses, claims,
damages or liabilities to which they may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Designated Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company or SLM Education Credit by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall 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), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional
12
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and SLM Education Credit, on the one
hand and the Underwriters of the Designated Securities on the other from the
offering of the Designated Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and SLM Education Credit, on the one hand and the
Underwriters of the Designated Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and SLM
Education Credit, on the one hand, and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company and SLM Education Credit
bear to the total underwriting discounts and commissions received by such
Underwriters. The relative fault 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 Company or SLM Education Credit, on the one hand, or
such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, SLM Education Credit and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Company, SLM Education Credit and SLM
Corporation under this Section 8 shall be in addition to any liability which the
Company, SLM Education Credit and SLM Corporation may otherwise have and shall
extend, upon the same terms and
13
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company, SLM Education Credit and SLM Corporation
and to each person, if any, who controls the Company, SLM Education Credit and
SLM Corporation within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Underwriters' Securities which it has agreed to purchase under the
Pricing Agreement relating to such Underwriters' Securities, the Representatives
may in their discretion arrange for themselves or another party or other parties
to purchase such Underwriters' Securities on the terms contained herein and
therein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Underwriters'
Securities, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Underwriters' Securities on such terms. In the
event that, within the respective prescribed period, the Representatives notify
the Company that they have so arranged for the purchase of such Underwriters'
Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Underwriters' Securities, the Representatives or the
Company shall have the right to postpone the Time of Delivery for such
Underwriters' Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Underwriters' Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Underwriters'
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Underwriters' Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Underwriters' Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Underwriters' Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
14
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, SLM Education Credit, the
several Underwriters and, to the extent provided in Xxxxxxx 0, XXX Corporation,
as set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, SLM Education Credit or SLM Corporation or any officer or director or
controlling person of the Company, SLM Education Credit or SLM Corporation, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section
9 or Section 7(j) hereof, the Company and SLM Education Credit shall not then be
under any liability to any Underwriter with respect to the Designated Securities
covered by such Pricing Agreement except as provided in Sections 6 and 8 hereof;
but, if for any other reason Underwriters' Securities are not delivered by or on
behalf of the Company as provided herein, the Company and SLM Education Credit
will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Securities, but the Company and SLM Education Credit shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company or SLM Education Credit shall be
delivered or sent by mail, telex or facsimile transmission to:
SLM Education Credit Funding LLC
00 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xx Xxxxxxx
President
SLM Education Credit Management Corporation
00 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xx Xxxxxxx
President
With copies to:
Xxxxxx Xxx, Inc.
15
00000 Xxxxxx Xxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx
Vice President
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company or SLM Education Credit by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company, SLM Education
Credit and, to the extent provided in Sections 8 and 10 hereof, the officers and
directors of the Company and SLM Education Credit and each person who controls
the Company, SLM Education Credit or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business and "New York Business Day" shall mean any
day when banking institutions are open for business in New York City, New York.
15. This Agreement and each Pricing Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
16
If the foregoing is in accordance with your understanding, please sign
and return to us 7 counterparts hereof.
Very truly yours,
SLM EDUCATION CREDIT FUNDING LLC
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Vice President
SLM EDUCATION CREDIT MANAGEMENT CORPORATION
By: /s/ J. XXXXX XXXXXX
Name: J. Xxxxx Xxxxxx
Title: Chief Financial Officer
Accepted and agreed with respect to Section 8
of this Agreement:
SLM CORPORATION
By: /s/ J. XXXXX XXXXXX
Name: J. Xxxxx Xxxxxx
Title: as Authorized Agent
Accepted as of the date hereof:
DEUTSCHE BANK SECURITIES INC.
By: /s/ XXXX XXXXXXXX
Name: Xxxx Xxxxxxxx
Title: Director
By: /s/ XXXXX XXXXXX
Name: Xxxxx Xxxxxx
Title: Vice President
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: /s/ XXXXXXX XXXXXXXXX
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX BARNEY INC.
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Director
17
ANNEX I
PRICING AGREEMENT
__________________________
As Representatives of the several
Underwriters named on Schedule I hereto,
c/o____________________
_______________________
______________________ , 200_
Ladies and Gentlemen:
SLM Education Credit Funding LLC, a Delaware limited liability company
(the "Company"), and SLM Education Credit Management Corporation, a Delaware
corporation ("SLM Education Credit"), propose, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated __________,
200__ (the "Underwriting Agreement"), between the Company and SLM Education
Credit, on the one hand, and _____________, on the other hand, that the Company
will cause the trust (the "Trust") formed pursuant to the Trust Agreement dated
as of _______, 200__ between the Company and _______, as trustee or eligible
lender trustee, as applicable (the "Trustee"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Student
Loan-Backed Notes (the "Notes") specified in Schedule II hereto (the "Designated
Securities"). The Notes will be issued and secured pursuant to the Indenture,
dated ___________ (the "Indenture"), between the Trust and _________, as trustee
(the "Indenture Trustee").
Each of the provisions of the Underwriting Agreement is incorporated
herein by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement,
except that each representation and warranty which refers to the Prospectus in
Section 2 of the Underwriting Agreement shall be deemed to be a representation
or warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Pricing Agreement in relation to the Prospectus as amended or
supplemented relating to the Designated Securities which are the subject of this
Pricing Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the Representatives
and on behalf of each of the Underwriters of the Designated Securities pursuant
to Section 12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
cause the Trust to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto, less the principal
amount of Designated Securities covered by Delayed Delivery Contracts, if any,
as may be specified in Schedule II.
During the period beginning from the date of this Pricing Agreement for
the Designated Securities and continuing to and including [Closing Date], the
Company agrees, and SLM Education Credit agrees that it will cause the Company,
not to, and not to permit any affiliated entity to, offer, sell, contract to
sell or otherwise dispose of, any securities (other than the Designated
Securities) collateralized by, or any securities (other than the related
Certificates) evidencing an ownership in, Student Loans, without the prior
written consent of the Representatives.
Each Underwriter represents and agrees that (a) it has not offered or
sold and will not offer or sell any Notes or Certificates to persons in the
United Kingdom prior to the expiration of the period of six months from the
issue date of the Notes and the Certificates except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (b) it has only communicated or caused to
be communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity, within the meaning of
section 21 of the Financial Services and Markets Act 2000 (the "FSMA"), received
by it in connection with the issue or sale of any notes or any certificates in
circumstances in which section 21(1) of the FSMA does not apply to the Trust;
and (c) it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the notes and the
certificates in, from or otherwise involving the United Kingdom.
If the foregoing is in accordance with your understanding, please sign
and return to us ______ counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company and SLM Education Credit. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company and SLM Education Credit for examination
upon request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
2
SLM EDUCATION CREDIT FUNDING LLC
By:
-----------------------------
Name:
Title:
SLM EDUCATION CREDIT MANAGEMENT CORPORATION
By:
-----------------------------
Name:
Title:
3
Accepted as of the date hereof:
[Underwriter]
By:
-----------------------------
On behalf of each of the Underwriters
4
SCHEDULE I
PRINCIPAL AMOUNT OF DESIGNATED SECURITIES TO BE PURCHASED
UNDERWRITER CLASS __ CLASS ___ CLASS ___
SCHEDULE II
TITLE OF EACH CLASS OF DESIGNATED SECURITIES:
AGGREGATE PRINCIPAL AMOUNT OF EACH CLASS:
PRICE TO PUBLIC OF EACH CLASS:
PURCHASE PRICE BY UNDERWRITERS OF EACH CLASS:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
INDENTURE:
MATURITY:
INTEREST RATE:
FORM OF DESIGNATED SECURITIES:
TIME OF DELIVERY:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
ANNEX II(a)
THE COMPANY, SLM EDUCATION CREDIT, THE SERVICER AND THE UNDERWRITERS: OUTSIDE
COUNSEL OPINIONS
[Opinions to be issued, which together will be substantially in the form
provided for SLM Private Credit Student Loan Trust 2002-A]
ANNEX II(b)
THE COMPANY, SLM EDUCATION CREDIT AND THE SERVICER: INTERNAL COUNSEL OPINION
[Opinion to be issued substantially in the form provided for SLM Private Credit
Student Loan Trust 2002-A]
ANNEX II(c)
TRUSTEE/ELIGIBLE LENDER TRUSTEE: COUNSEL OPINION
[Opinion to be issued substantially in the form provided for SLM Private Credit
Student Loan Trust 2002-A]
ANNEX II(d)
INDENTURE TRUSTEE: COUNSEL OPINION
[Opinion to be issued substantially in the form provided for SLM Private Credit
Student Loan Trust 2002-A]
ANNEX III
DELAYED DELIVERY CONTRACT
SLM Education Credit Funding LLC
c/o _______________________
___________________________
___________________________
Attention:__________________ _______,20__
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SLM Education Credit
Funding LLC (hereinafter called the "Company"), and the Company agrees to sell
to the undersigned,
$__________
principal amount of the Company's ________ (hereinafter called the "Designated
Securities"), offered by the Company's Prospectus, dated ______________, 20__,
as amended or supplemented, receipt of a copy of which is hereby acknowledged,
at a purchase price of _____% of the principal amount thereof, plus accrued
interest from the date from which interest accrues as set forth below, and on
the further terms and conditions set forth below.
The undersigned will purchase the Designated Securities from the Company
on _____________, 20__ (the "Delivery Date") and interest on the Designated
Securities so purchased will accrue from _________________, 20_____
[The undersigned will purchase the Designated Securities from the
Company on the delivery date or dates and in the principal amount or amounts set
forth below:
Principal Date from Which
Delivery Date Amount Interest Accrues
___________________, 20__ $_____________ _____________________, 20__
___________________, 20__ $_____________ _____________________, 20__
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date."(4)]
Payment for the Designated Securities which the undersigned has agreed
to purchase on [the] [each] Delivery Date shall be made to the Company or its
order by certified or official bank check in ________ Clearing House funds at
the office of __________, _________, _________, or by wire transfer to a bank
account specified by the Company, on [the] [such] Delivery Date upon delivery to
the undersigned of the Designated Securities then to be purchased by the
undersigned in definitive fully registered form and in such denominations and
registered in such names as the undersigned may designate by written, telex
or facsimile communication addressed to the Company not less than five full
business days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Designated Securities on [the] [each] Delivery Date shall be subject to the
condition that the purchase of Designated Securities to be made by the
undersigned shall not on [the] [such] Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject. The obligation of the
undersigned to take delivery of and make payment for Designated Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Designated Securities pursuant to other contracts similar to this
contract.
[The undersigned understands that Underwriters (the "Underwriters") are
also purchasing Designated Securities from the Company, but that the obligations
of the Undersigned hereunder are not contingent on such purchases]. Promptly
after completion of the sale to the Underwriters the Company will mail or
deliver to the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the Opinion of Counsel for the Company delivered to the
Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
F-2
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts need not
be on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
Yours very truly,
-----------------------------
By:
--------------------------
(Authorized Signature)
Name:
Title:
-----------------------------
(Address)
Accepted: ________________________,20..
SLM EDUCATION CREDIT FUNDING LLC
By:
-----------------------------
Name:
Title:
F-3
