Exhibit 1.1
SLM FUNDING LLC
STUDENT LOAN-BACKED NOTES
UNDERWRITING AGREEMENT
APRIL 27, 2004
DEUTSCHE BANK SECURITIES INC.
00 XXXX XXXXXX, 00XX XXXXX
XXX XXXX, XXX XXXX 00000
AND
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
000 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
AS REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS NAMED IN SCHEDULE I HERETO
Ladies and Gentlemen:
From time to time, the Student Loan Marketing Association ("SLMA"), a
corporation formed under the laws of the United States of America, and SLM
Funding LLC, a Delaware limited liability company and a wholly-owned subsidiary
of SLMA (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, the
Eligible Lender Trustee specified in the related Pricing Agreement (the
"Eligible Lender Trustee") and the Indenture Trustee (defined below). 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 made under the Federal Family
Education Loan Program ("Student Loans").
At the Time of Delivery for the Designated Securities (as defined in
Section 4 hereof), (i) the Company will acquire the related Student Loans from
SLMA pursuant to a Purchase Agreement and (ii) the Company will sell the related
Student Loans to the Trust pursuant to a Sale Agreement, between the Company and
the Trust with the related Eligible Lender Trustee holding legal title thereto.
With respect to each Series, Xxxxxx Xxx, Inc., as servicer (the "Servicer") will
enter into a servicing agreement (a "Servicing Agreement") with the Trust, the
Administrator (defined below), the Eligible Lender Trustee and the Indenture
Trustee with respect to the related Student Loans. With respect to each Series,
Xxxxxx Mae, Inc., as administrator (the "Administrator"), will enter into an
administration agreement (an "Administration Agreement") with the Trust, the
Company, the Eligible Lender Trustee, the Servicer and the Indenture Trustee.
The Trust will enter into an Interest Rate Cap Agreement with Xxxxxxx Xxxxx
Capital Services, Inc., dated April 27, 2004.
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
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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 SLMA 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), (g), (h), (j), (k), (m) and (o) of
this Section 2 with respect to SLMA, the Servicer or the Administrator
constitute representations, warranties and agreements of that Person only and
not of the Company) :
(a) A registration statement on Form S-3 (File No. 333-104887),
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 SLMA'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(b) 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
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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 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
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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) Neither SLMA or any of its subsidiaries, taken as a whole,
nor the Company has sustained (i) since the date of the financial
statements included as Appendix A to SLM Corporation's most recent
Annual Report on Form 10-K or Quarterly Report on Form 10-Q filed with
the Commission, as applicable, 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 such financial statements; and, (ii) since such date,
there has not been (A) any material adverse change in the capital stock
or long-term debt of SLMA or any of its subsidiaries, taken as a whole,
or the Company or (B) 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 SLMA or any of its subsidiaries, taken as a
whole, or the Company or the transactions contemplated hereby,
otherwise than, in the case of clauses (A) and (B) above, as set forth
or contemplated in such financial statements or as disclosed in writing
to the Underwriters on or prior to the date of this Agreement;
(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 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 SLMA. SLMA has been duly organized and is validly
existing under the laws of the United States, 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. The Servicer has been
duly formed and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with power and authority to
own its properties and conduct its business as described in the
Prospectus and to consummate the transactions contemplated therein. The
Administrator has been duly formed and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with power and authority to own its properties and conduct its business
as described in the Prospectus and to consummate the transactions
contemplated therein;
(f) All of the equity interests of the Company have been duly
and validly authorized and are owned beneficially and of record by
SLMA;
(g) This Agreement has been, and each Pricing Agreement with
respect to the Designated Securities upon its execution and delivery by
the Company and SLMA will have been, duly authorized, executed and
delivered by the Company and SLMA. The
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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
SLMA is a party or by which the Company or SLMA is bound or to which
any of the property or assets of the Company or SLMA is subject, nor
will such action result in any violation of the provisions of the
Company's Certificate of Formation or Limited Liability Company
Operating Agreement, SLMA's charter, enabling legislation 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
SLMA 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 SLMA 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) SLMA is not in violation of its charter as set forth in its
enabling legislation or By-laws, and the Company is not in violation of
its Certificate of Formation or Limited Liability Company Operating
Agreement, and neither SLMA 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 or in SLM
Corporation's most recent Annual Report on Form 10-K or Quarterly
Report on Form 10-Q filed with the Commission, as applicable, there are
no legal or governmental proceedings pending to which the Company or
SLMA or any of its subsidiaries is a party or of which any property of
the Company or SLMA or any of its subsidiaries is the subject which, if
determined adversely to the Company or SLMA and any of its
subsidiaries, taken as a whole, 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
SLMA and any of its subsidiaries, taken as a whole, or the Company, or
on the consummation of the transactions contemplated hereby; and, to
the best of the Company's and SLMA'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;
(m) Neither the Company, SLMA 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, SLMA's
representations and warranties in the Administration Agreement and the
Purchase Agreement, the Administrator's representations and warranties
in the Administration Agreement, the Company's representations and
warranties in the 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
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(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 SLMA 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.
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.
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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.
5. The Company agrees with each of the Underwriters of any Designated
Securities, and SLMA 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 amendment
or supplement 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
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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 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.
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6. The Company and SLMA covenant and agree with the several
Underwriters that the Company or SLMA will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's and SLMA'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 fees and expenses of the Eligible Lender Trustee and the
Indenture Trustee and any agent of the Eligible Lender Trustee or the Indenture
Trustee and the fees and disbursements of counsel for the Eligible Lender
Trustee and the Indenture Trustee in connection with any Indenture and Trust
Agreement and the Designated Securities; (vii) the fees payable to the
Luxembourg Stock Exchange in connection with listing Designated Securities on
the Luxembourg Stock Exchange; and (viii) all other costs and expenses incident
to the performance of the obligations of the Company and SLMA 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
SLMA 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 SLMA shall have
performed all of their obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) (i) 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; (ii) 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 (iii) all
requests for additional information on the part of the Commission shall
have been complied with;
11
(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, the Administrator, SLMA
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, the Administrator, SLMA 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(c) or as is otherwise satisfactory to the
Representatives;
(e) Counsel for the Eligible Lender 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;
(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(e) 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 SLMA shall have furnished to the
Representatives a letter or letters with respect to the Company, SLMA,
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 SLMA or any of its subsidiaries, taken as a
whole, nor the Company shall have sustained (i) since the date of the
financial statements included as Appendix A to SLM Corporation's most
recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q
filed with the Commission, as applicable, 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 such financial
12
statements; and, (ii) since such date, there shall not have been (A)
any material adverse change in the capital stock or long-term debt of
SLMA or any of its subsidiaries, taken as a whole, or the Company or
(B) 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 SLMA or any of its subsidiaries, taken as a
whole, or the Company or the transactions contemplated hereby,
otherwise than, in the case of clauses (A) and (B) above, as set forth
or contemplated in such financial statements or as disclosed in writing
to the Underwriters on or prior to the date of this Agreement, 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 (i) no downgrading shall have occurred in the
rating accorded SLMA's debt securities or preferred stock by any
"nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act ("Rating Agency"), and (ii) no such Rating Agency shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of SLMA's debt
securities;
(j) 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 any of United States
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;
(k) Each of the Company and SLMA 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 SLMA, as the case may be, satisfactory to the
Representatives as to the accuracy of the representations and
warranties of the Company or SLMA, as the case may be, herein at and as
of such Time of Delivery, as to the performance by the Company or SLMA,
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;
13
(l) 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 to the
Underwriters, the aggregate amount of the related Certificates, if any,
as specified in the related underwriting agreement for such
Certificates shall have been sold to the underwriters specified in such
underwriting agreement; and
(m) 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 and SLMA, 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 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 and SLMA 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 or SLMA 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 SLMA 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
14
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 SLMA 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 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 SLMA, 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 SLMA, on
the one hand and the Underwriters of the Designated Securities on the other in
connection with the statements or
15
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 SLMA, 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 SLMA 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 SLMA,
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, SLMA 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 and SLMA under this Section 8 shall
be in addition to any liability which the Company and SLMA may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Underwriters and 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 or SLMA and to
each person, if any, who controls the Company or SLMA 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
16
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 (i) to require
each non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such non-defaulting Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities, and, in addition, (ii)
to require each non-defaulting Underwriter to purchase its pro rata share of the
Designated Securities of such defaulting Underwriter or Underwriters for which
such arrangements have not been made (which share only shall pertain to and be
based on the principal amount of the Designated Securities which such
non-defaulting Underwriter or Underwriters previously agreed to purchase under
the Pricing Agreement relating to such Designated Securities, it being
acknowledged and agreed that such non-defaulting Underwriter or Underwriters
shall not be required to purchase a share of any class of Designated Securities
of a defaulting Underwriter or Underwriters which the non-defaulting Underwriter
or Underwriters had not previously agreed to purchase under the Pricing
Agreement relating to such Designated Securities). 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
17
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and 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, SLMA and the several Underwriters, 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
or SLMA or any officer or director or controlling person of the Company or SLMA,
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 SLMA 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 SLMA 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 SLMA 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 SLMA shall be delivered or sent by
mail, telex or facsimile transmission to:
SLM Funding LLC
00000 Xxxxxx Xxx Xxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx,
Vice President
Student Loan Marketing Association
00000 Xxxxxx Xxx Xxxxx
Xxxxxx, XX 00000
18
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 SLMA 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, SLMA and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and SLMA and each person who controls the Company, SLMA 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 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.
19
IF THE FOREGOING IS IN ACCORDANCE WITH YOUR UNDERSTANDING, PLEASE SIGN
AND RETURN TO US 9 COUNTERPARTS HEREOF.
Very truly yours,
SLM FUNDING LLC
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Vice President
STUDENT LOAN MARKETING ASSOCIATION
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Accepted as of the date hereof:
DEUTSCHE BANK SECURITIES INC.
By: /s/ XXXX XXX XXXXXX
Name: Xxxx Xxx Xxxxxx
Title: Managing Director
By: /s/ XXXX XXXXXXXX
Name: Xxxx Xxxxxxxx
Title: Director
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: /s/ XXXXXXXX X. XXXX
Name: Xxxxxxxx X. Xxxx
Title: Authorized Signatory
On behalf of each of the Underwriters
ANNEX I
PRICING AGREEMENT
______________________
AS REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS NAMED ON SCHEDULE I HERETO,
C/O____________________
________________________
________________________
, 200_
Ladies and Gentlemen:
SLM Funding LLC, a Delaware limited liability company (the "Company"),
and the Student Loan Marketing Association, a corporation formed under the laws
of the United States ("SLMA"), propose, subject to the terms and conditions
stated herein and in the Underwriting Agreement, dated __________, 200__ (the
"Underwriting Agreement"), between the Company and SLMA, on the one hand, and
_____________ 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 (the "Eligible Lender
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, the Eligible Lender Trustee 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 the Closing Date, the
Company agrees, and SLMA 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 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 to persons in the United
Kingdom prior to the expiration of the period of six months from the issue date
of the Notes 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, as
amended; (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, with 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 in circumstances in which section 21(1) of the FSMA does
not apply to the issuer; 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 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 SLMA. It is understood that your acceptance of this letter
on behalf of each of the Underwriters is or will be pursuant to the
2
authority set forth in a form of Agreement among Underwriters, the form of which
shall be submitted to the Company and SLMA for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
SLM FUNDING LLC
By: ______________________________
Name:
Title:
STUDENT LOAN MARKETING ASSOCIATION
By: ______________________________
Name:
Title:
3
Accepted as of the date hereof:
_______________________
By: ____________________________________
Name:
Title:
_______________________
By: _____________________________________
Name:
Title:
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 UNDERWRITERS: OUTSIDE COUNSEL OPINION
[Opinion to be issued, which will be substantially in the form provided for
SLM Student Loan Trust 2004-3]
ANNEX II(b)
THE COMPANY, SLMA AND THE SERVICER: INTERNAL COUNSEL OPINION
[Opinion to be issued, which will be substantially in the form provided for
SLM Student Loan Trust 2004-3]
ANNEX II(c)
THE COMPANY, SLMA AND THE SERVICER: OUTSIDE COUNSEL OPINION
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2004-3]
ANNEX II(d)
ELIGIBLE LENDER TRUSTEE: COUNSEL OPINION
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2004-3]
ANNEX II(e)
INDENTURE TRUSTEE: COUNSEL OPINION
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2004-3]
ANNEX III
DELAYED DELIVERY CONTRACT
SLM FUNDING LLC
C/O _______________________
__________________________
__________________________
Attention:............................. .....................,
20__
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SLM 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.
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 FUNDING LLC
By: .........................
Name:
Title:
