$181,800,000
Education Loans Incorporated
----------------------------
STUDENT LOAN ASSET-BACKED NOTES, SERIES 2001-1
consisting of
$79,000,000 Student Loan Asset-Backed Notes, Senior Series 2001-1A
$79,000,000 Student Loan Asset-Backed Notes, Senior Series 2001-1B
$23,800,000 Student Loan Asset-Backed Notes, Subordinate Series 2001-1C
Underwriting Agreement
----------------------
July 30, 2001
XXXXXXX XXXXX XXXXXX INC.,
as Representative of the Underwriters named herein
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Education Loans Incorporated, a Delaware corporation ("EdLinc") and
wholly-owned subsidiary of Student Loan Finance Corporation, a South Dakota
corporation ("SLFC"), proposes to sell $181,800,000 aggregate principal amount
of its Student Loan Asset-Backed Notes, Series 2001-1 (the "Notes") to Xxxxxxx
Xxxxx Xxxxxx Inc. and U.S. Bancorp Xxxxx Xxxxxxx Inc. (collectively, the
"Underwriters" and each individually an "Underwriter") for whom you (the
"Representative") are acting as representative pursuant to the terms of this
Underwriting Agreement (this "Agreement"). The Notes are to be issued in three
series designated as Student Loan Asset-Backed Notes, Senior Series 2001-1A (the
"Series 2001-1A Notes"), Student Loan Asset-Backed Notes, Senior Series 2001-1B
(the "Series 2001-1B Notes", and together with the Series 2001-1A Notes, the
"Series 2001-1 Senior Notes") and Student Loan Asset-Backed Notes, Subordinate
Series 2001-1C (the "Series 2001-1 Subordinate Notes"). The initial aggregate
principal amounts of each series of Notes shall be as listed in Appendix A
hereto.
The Notes shall be as described in, shall be subject to redemption and
auction, shall have such other provisions and details and shall be issued
pursuant to the Third Supplemental Indenture, dated as of July 1, 2001 (the
"Supplemental Indenture"), supplemental to an Indenture of Trust, dated as of
December 1, 1999 (as supplemented and amended, the "Indenture"), between EdLinc
and U.S. Bank National Association, as trustee (the "Trustee"). Upon issuance,
the Trustee shall use proceeds of the Notes to acquire Student Loans as
described in the Prospectus from Goal Funding, Inc., a Delaware corporation (the
"Transferor") and wholly-owned subsidiary of SLFC, and the Notes will be secured
by, among other things,
Financed Student Loans pledged to the Trustee and described in the Prospectus
(as hereinafter defined).
Capitalized terms used but not defined herein have the respective meanings
ascribed thereto in Appendix B hereto.
1. Agreement to Sell, Purchase and Resell
(a) EdLinc hereby agrees, subject to all of the terms and conditions
set forth herein, to sell to the Underwriters and, upon the basis of the
representations, warranties and agreements of EdLinc, the Transferor and
SLFC herein contained and subject to all of the terms and conditions set
forth herein, the Underwriters, jointly and severally, agree to purchase
from EdLinc, all (but not less than all) of the Notes at the aggregate
purchase price of $181,002,000, and XxXxxx hereby agrees to pay on behalf
of the Underwriters, the fees and expenses of counsel to the Underwriters
in the aggregate amount of $100,000. The maturity dates, purchase prices
and underwriting discounts for each series of the Notes shall be as listed
in Appendix A hereto.
(b) The Series 2001-1 Senior Notes and the Series 2001-1 Subordinate
Notes shall bear interest for the period commencing on the date of issuance
of the Notes through the end of the respective Initial Interest Periods at
the respective per annum rates specified in Appendix A hereto. Thereafter,
such rates per annum shall be determined in accordance with the
Supplemental Indenture.
(c) It is understood that the Underwriters propose to offer the Notes
for sale to the public (which may include selected dealers) as set forth in
the Prospectus. The Notes may be offered and sold to certain dealers
(including the Underwriters and other dealers depositing such Notes into
investment trusts or mutual funds) at prices lower than such public
offering prices.
(d) The Representative is duly authorized to execute this Agreement
and to act hereunder on behalf of the Underwriters.
(e) Each Underwriter severally represents and agrees that (i) it has
not offered or sold, and will not offer or sell, any Notes to persons in
the United Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as principal
or agent) for the purpose 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; (ii) it has complied and will comply with all applicable
provisions of the Financial Services Act of 1986 with respect to anything
done by it in relation to the Notes in, from or otherwise involving the
United Kingdom; and (iii) it has only issued or passed on, and will only
issue and pass on, in the United Kingdom any document received by it in
connection with the issue of the Notes to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or to a person to whom such
document may otherwise lawfully be issued, distributed or passed on.
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2. Delivery of the Notes and Payment Therefor
At 9:00 A.M., New York City time, on July 30, 2001, or at such other time
or on such earlier or later business day as shall have been mutually agreed upon
by EdLinc, SLFC, the Transferor and the Underwriters (the "Closing Date"),
EdLinc will deliver to DTC, for the account of the Underwriters, the Notes in
definitive form bearing CUSIP numbers, duly executed and authenticated, together
with the other documents hereinafter mentioned; and the Underwriters will accept
such delivery and pay the purchase price of the Notes as set forth in Section 1
hereof in immediately available funds to the account of EdLinc and EdLinc shall
pay to Underwriters' counsel, on behalf of the Underwriters, the fees and
expenses of Underwriters' counsel as set forth in Section 1 hereof in
immediately available funds to the account of Xxxxx & Xxxxxxx. Delivery of the
Notes and payment as aforesaid shall be made at such location in New York, New
York as shall be requested by the Representative. Delivery of the other
documents shall be at the offices Xxxxxx & Xxxxxxx LLP, Xxxxxxxxx Center South,
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-1498. This payment and
delivery is herein called the "Closing". The Notes delivered at the Closing
shall be made available to the Trustee for the benefit of the Underwriters, to
facilitate a "Fast' closing through DTC, at least one business day prior to the
date of the Closing for purposes of inspection. The Notes shall be prepared and
delivered as fully registered notes in authorized denominations and registered
in such manner as the Representative shall have requested.
3. Representations and Warranties of EdLinc, SLFC and the Transferor.
EdLinc, SLFC and the Transferor represent and warrant to, and agree with,
the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-85963),
including a prospectus and such amendments thereto as may have been
required to the date hereof, relating to the Notes and the offering thereof
from time to time in accordance with Rule 415 under the Securities Act of
1933, as amended (the "Securities Act") has been filed with the Securities
and Exchange Commission (the "Commission") and such registration statement,
as amended, has become effective under the Securities Act; such
registration statement, as amended, including all information (if any)
deemed to be a part of such registration statement as of the Effective Time
(as defined below), and including the exhibits thereto and any material
incorporated by reference therein, and the prospectus and the prospectus
supplement relating to the sale of the Notes offered thereby constituting a
part thereof, as amended or supplemented including any prospectus filed
under Rule 424(b) under the Securities Act, are respectively referred to
herein as the "Registration Statement" and the "Prospectus"; and the
conditions to the use of a registration statement on Form S-3 under the
Securities Act, as set forth in the General Instructions to Form S-3, and
the conditions of Rule 415 under the Securities Act have been satisfied
with respect to the Registration Statement. For purposes of this Agreement,
"Effective Time" means (x) if XxXxxx has advised the Representative that it
does not propose to amend the Registration Statement, the date and time as
of which the Registration Statement, or the most recent amendment thereto
(if any) filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission, or (y) if XxXxxx has advised the
Representative that it proposes to file an amendment or post effective
amendment to the Registration Statement, the date and time as of which the
Registration Statement, as amended by such amendment or post effective
amendment, as the case may be, is declared effective by the Commission.
"Effective
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Date" means the date of the Effective Time. Copies of the Registration
Statement, the Prospectus and all other documents which were filed by
EdLinc with the Commission on or prior to the date hereof have been
delivered to you. For purposes of this Agreement, all references to the
Registration Statement and the Prospectus or any amendment or supplement
thereto shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System
("XXXXX").
(b) On the Effective Date, on the date of this Agreement and on the
Closing Date, the Registration Statement and the Prospectus conformed,
conform and will conform in all material respects to the requirements of
the Securities Act, the rules and regulations of the Commission (the "Rules
and Regulations") and the Trust Indenture Act of 1939, as amended, and the
rules and regulations thereunder (the "Trust Indenture Act"), and in the
case of the Registration Statement, did not, does not and will not include
any 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 and in the case of the Prospectus, did not, does not and
will not include any 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, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements made in reliance upon and in
conformity with information furnished in writing to EdLinc by the
Underwriters expressly for use therein. There are no contracts or other
documents required by the Securities Act or by the Rules and Regulations to
be described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement which have not been described or
filed as required. The Prospectus delivered to the Underwriter for use in
connection with the offering of the Notes was identical to the
electronically transmitted copies thereof filed with the Commission.
(c) The Commission has not issued and, to the best knowledge of EdLinc
and SLFC, is not threatening to issue any order preventing or suspending
the use of the Registration Statement. No order preventing or suspending
the use of any prospectus has been issued by the Commission or any state
regulatory authority or other jurisdictional regulatory agency ("Blue Sky
Authorities").
(d) As of the Closing Date, each consent, approval, authorization or
order of, or filing with, any court or governmental agency or body which is
required to be obtained or made by the EdLinc, SLFC, the Transferor or any
of their affiliates for the consummation of the transactions contemplated
by this Agreement shall have been obtained, except as otherwise provided in
the Basic Documents.
(e) EdLinc has the requisite power and authority to execute, deliver
and perform its obligations under the Indenture, the Supplemental
Indenture, the Letter of Representations and the Auction Agent Agreement.
The Indenture, the Supplemental Indenture, the Letter of Representations
and the Auction Agent Agreement have been duly and validly authorized by
EdLinc and, upon their execution and delivery by XxXxxx, assuming due
authorization, execution and delivery by the other parties thereto, will be
duly executed and delivered by EdLinc and will constitute valid and legally
binding agreements of EdLinc, enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general applicability
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affecting creditors' rights or general equitable principles. The Indenture,
the Supplemental Indenture, the Letter of Representations and the Auction
Agent Agreement conform in all material respects to the descriptions
thereof in the Prospectus.
(f) EdLinc has the requisite power and authority to issue the Notes.
The Notes have been duly authorized by XxXxxx and, when executed by EdLinc,
authenticated by the Trustee in accordance with the Indenture and delivered
to the Underwriters against payment therefor in accordance with the terms
hereof, will have been validly issued and delivered, and will constitute
valid and legally binding obligations of EdLinc entitled to the benefits of
the Indenture and enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, moratorium,
or other similar laws of general applicability relating to or affecting
creditors' rights or general equitable principles. The Notes conform in all
material respects to the description thereof in the Prospectus.
(g) EdLinc and the Transferor each has the requisite power and
authority to execute, deliver and perform its obligations under the
Transfer Agreement. The Transfer Agreement has been duly and validly
authorized, executed and delivered by EdLinc and the Transferor and, upon
their execution and delivery (assuming due authorization, execution and
delivery by the other parties thereto) will be duly executed and delivered
by each of EdLinc and the Transferor and will constitute a valid and
legally binding agreement of each of EdLinc and the Transferor, enforceable
in accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
of general applicability relating to or affecting creditors' rights or
general equitable principles. The Transfer Agreement conforms in all
material respects to the descriptions thereof in the Prospectus.
(h) [Reserved]
(i) EdLinc, SLFC and the Transferor each have all requisite power and
authority to execute, deliver and perform its respective obligations under
this Agreement; the execution and delivery of, and the performance by each
of EdLinc, SLFC and the Transferor of its respective obligations under this
Agreement have been duly and validly authorized by EdLinc, SLFC and the
Transferor, respectively, and this Agreement has been duly executed and
delivered by each of them and constitutes the valid and legally binding
agreement of each of them, enforceable against each of them in accordance
with its terms, except as the enforcement may be limited by bankruptcy,
insolvency, moratorium, or other similar laws relating to or affecting
creditors' rights generally or general equitable principles, and except as
rights to indemnity and contribution hereunder may be limited by federal or
state securities laws or principles of public policy.
(j) EdLinc has duly adopted XxXxxx's Authorizing Resolutions and has
duly approved the execution, delivery and performance of the Basic
Documents, this Agreement, EdLinc's Program Agreements, the furnishing and
use of the information contained in the Prospectus, and the taking of any
and all such actions as may be required on the part of EdLinc to carry out,
give effect to and consummate the transactions contemplated by this
Agreement, the Prospectus, the Basic Documents, and XxXxxx's Program
Agreements, and all approvals necessary in connection with the foregoing
have been obtained.
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(k) SLFC and the Transferor have duly adopted SLFC's Authorizing
Resolutions and the Transferor's Authorizing Resolutions, respectively, and
have duly approved the execution, delivery and performance of the Basic
Documents to which such entity is a party, SLFC's Program Agreements and
the Transferor's Program Agreements, as applicable, the furnishing and use
of the information contained in the Prospectus, and the taking of any and
all such actions as may be required on the part of SLFC and the Transferor
to carry out, give effect to and consummate the transactions contemplated
by this Agreement, the Prospectus, EdLinc's Program Agreements, the
Transferor's Program Agreements, SLFC's Program Agreements and the Basic
Documents, and all approvals necessary in connection with the foregoing
have been obtained.
(l) EdLinc, the Transferor and SLFC each has the requisite power and
authority to execute, deliver and perform its respective obligations under
EdLinc's Program Agreements, the Transferor's Program Agreements and SLFC's
Program Agreements to which it is a party. EdLinc's Program Agreements, the
Transferor's Program Agreements and SLFC's Program Agreements have been
duly and validly authorized by EdLinc, the Transferor and SLFC to the
extent each is a party thereto and, assuming due authorization, execution
and delivery by the other parties thereto, duly executed and delivered by
EdLinc, the Transferor and SLFC, respectively, and constitute valid and
legally binding agreements of EdLinc, the Transferor and SLFC,
respectively, enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general applicability
affecting creditors' rights or general equitable principles. EdLinc's
Program Agreements, the Transferor's Program Agreements and SLFC's Program
Agreements conform in all material respects to the descriptions thereof in
the Prospectus.
(m) EdLinc is a Delaware corporation and wholly owned subsidiary of
SLFC, is duly organized, validly existing and in good standing under the
laws of the State of Delaware, with the requisite power and authority to
own, lease and operate its properties and to conduct its business as
conducted on the date hereof and as contemplated in the Prospectus and with
full power and authority to own and pledge its assets and to issue the
Notes as described in the Prospectus. EdLinc is duly qualified to conduct
its business and is in good standing in each jurisdiction where the nature
of its properties or the conduct of its business requires such
qualification, except where the failure so to qualify could not have a
material adverse effect on its condition (financial or other), business,
prospects, properties, net worth or results of operations.
(n) SLFC is a corporation duly organized, validly existing and in good
standing under the laws of the State of
South Dakota, with the requisite power and authority to own, lease and
operate its properties and to conduct its business as conducted on the date
hereof and as contemplated in the Prospectus, and is duly qualified to
conduct its business and is in good standing in each jurisdiction where the
nature of its properties or the conduct of its business requires such
qualification, except where the failure so to qualify could not have a
material adverse effect on its condition (financial or other), business,
prospects, properties, net worth or results of operations.
(o) The Transferor is a Delaware corporation and wholly owned
subsidiary of SLFC, is duly organized, validly existing and in good
standing under the laws of the State of
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Delaware, with the requisite power and authority to own, lease and operate
its properties and to conduct its business as conducted on the date hereof
and as contemplated in the Prospectus. The Transferor is duly qualified to
conduct its business and is in good standing in each jurisdiction where the
nature of its properties or the conduct of its business requires such
qualification, except where the failure so to qualify could not have a
material adverse effect on its condition (financial or other), business,
prospects, properties, net worth or results of operations.
(p) There is no action, suit, proceeding, inquiry or investigation, at
law or in equity, or before or by any court, governmental or public board
or body, pending or known to be threatened against or affecting EdLinc,
SLFC or the Transferor or to which EdLinc, SLFC, the Transferor or any of
their respective properties is subject, nor to the best of the knowledge of
EdLinc, SLFC and the Transferor is there any basis therefor, that are not
disclosed in the Prospectus and wherein an unfavorable decision, ruling or
finding would materially adversely affect the validity or enforceability of
the Notes, XxXxxx's Authorizing Resolutions, SLFC's Authorizing Resolution,
the Transferor's Authorizing Resolution, the Basic Documents, EdLinc's
Program Agreements, the Transferor's Program Agreements, SLFC's Program
Agreements, the Investment Agreement, this Agreement or any other agreement
or instrument to which EdLinc, SLFC or the Transferor is a party, used or
contemplated for use in the consummation of transactions contemplated by
this Agreement, the Basic Documents, EdLinc's Program Agreements, the
Transferor's Program Agreements, SLFC's Program Agreements, the Investment
Agreement or by the Prospectus.
(q) Neither the offer, sale or delivery of the Notes by XxXxxx, nor
the execution, delivery or performance of this Agreement, any of the Basic
Documents or any of EdLinc's Program Agreements, the Transferor's Program
Agreements or SLFC's Program Agreements by EdLinc, SLFC or the Transferor,
nor the adoption of the EdLinc's Authorizing Resolutions, SLFC's
Authorizing Resolution or the Transferor's Authorizing Resolution, nor the
consummation by EdLinc, SLFC or the Transferor of the transactions
contemplated hereby or thereby (i) requires or will require any consent,
approval, authorization or other order of, or registration or filing with,
any court, regulatory body, administrative agency or other governmental
body, agency or official (except for compliance with the federal securities
laws or Blue Sky laws of various jurisdictions, the qualification of the
Indenture under the Trust Indenture Act and such other consents, approvals
or authorizations as shall have been obtained prior to the Closing Date),
or (ii) conflicts or will conflict with or constitutes or will constitute a
breach of, or a default under, the organizational documents of EdLinc, SLFC
or the Transferor or (iii) conflicts or will conflict with or constitutes
or will constitute a breach of, or a default under, in any material
respect, any material agreement, indenture, lease or other instrument to
which EdLinc, SLFC or the Transferor is a party or by which EdLinc, SLFC or
the Transferor or any of their respective properties may be bound, or (iv)
violates or will violate in any material respect any statute, law,
regulation or filing or judgment, injunction, order or decree applicable to
EdLinc, SLFC or the Transferor or any of their respective properties, or
(v) results or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of EdLinc, SLFC or the
Transferor pursuant to the terms of any agreement or instrument to which
any is a party or by which any may be bound or to which any of their
respective properties is subject other than as contemplated by the Basic
Documents.
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(r) Neither EdLinc, SLFC nor the Transferor is, and following the
consummation of the transactions contemplated hereby and the use of
proceeds from the Notes as described in the Prospectus will be, an
"investment company" under the Investment Company Act of 1940, as amended
(the "1940 Act').
(s) Neither EdLinc, SLFC, the Transferor 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 Statute and
EdLinc, SLFC and the Transferor agrees to comply with such Section if prior
to the completion of the distribution of the Notes it commences doing such
business. EdLinc, SLFC and the Transferor are not, and have not at any time
been, in default in the payment of principal of or interest on any
obligations of EdLinc, SLFC, or the Transferor, respectively.
(t) The representations and warranties made by (i) EdLinc herein, in
the Basic Documents, in EdLinc's Program Agreements and in any officer's
certificate delivered pursuant hereto or thereto and (ii) the Transferor
and SLFC herein, in EdLinc's Program Agreements, in the Transferor's
Program Agreements, in SLFC's Program Agreements, and in any officer's
certificate of the Transferor or SLFC delivered pursuant hereto or thereto,
will be true and correct at the time made and on and as of the Closing
Date.
(u) The Indenture will create a first lien upon the Financed Student
Loans and a valid pledge of and perfected security interest in the entire
Trust Estate, subject only to the provisions of the Indenture permitting
the application thereof for the purposes and on the terms and conditions
set forth therein. On the Closing Date, the Trustee will have legal title
to the Trust Estate for the benefit of EdLinc, including without limitation
the Financed Student Loans, and no lien other than the lien of the
Indenture will exist with respect to any asset which constitutes a part of
the Trust Estate securing the Notes.
(v) Neither EdLinc, SFLC or the Transferor nor any agent acting on any
of their behalf has taken or will take any action that might cause this
Agreement or the sale of the Notes to violate Regulations G, T, U, or X of
the Board of Governors of the Federal Reserve System, in each case as in
effect, or as the same may hereafter be in effect, as of the Closing.
(w) Other than as contemplated by this Agreement or as disclosed in
the Prospectus, there is no broker, finder or other party that is entitled
to receive from SLFC or any of its subsidiaries any brokerage or finder's
fee or other fee or commission as a result of any transactions contemplated
by this Agreement.
4. Agreements of EdLinc, SLFC and the Transferor
EdLinc, SLFC and the Transferor agree with the Underwriters as follows:
(a) Prior to the execution of this Agreement, XxXxxx has, pursuant to
Rule 424(b) under the Securities Act, prepared and filed a prospectus and
prospectus supplement, properly completed, with the Commission relating to
the Notes. EdLinc will advise the Representative promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus and
will not effect such amendment or supplement without the consent of the
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Representative prior to the Closing Date, and thereafter will not effect
any such amendment or supplement relating to or affecting the Notes to
which the Representative reasonably objects; provided, however, no consent
of the Representative shall be required in connection with any filing made
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder; EdLinc will
also advise the Representative promptly of any request by the Commission
for any amendment of or supplement to the Registration Statement or the
Prospectus or for any additional information; and EdLinc will also advise
the Representative promptly of the effectiveness of the Registration
Statement and of any amendment or supplement to the Registration Statement
or the Prospectus, of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or known threat of any proceeding for that purpose, of the
suspension of the qualification of the Notes for offering or sale in any
jurisdiction, and of the initiation or threatening of any proceeding
relating to the offering or sale of the Notes; and EdLinc will use its best
efforts to prevent the issuance of any such stop order or other order
preventing or suspending the use of the Prospectus or suspending the
qualification of the Indenture or the Notes for offering or sale in any
jurisdiction and, in the event of the issuance of any stop order or of any
other such order, promptly use its best efforts to obtain the withdrawal of
such order.
(b) If the delivery of a prospectus is required at any time under the
Securities Act after an event has occurred which results in the Prospectus,
as then amended or supplemented, including an untrue statement of a
material fact or omitting to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus to comply with the
Securities Act, the Rules and Regulations or the Trust Indenture Act,
EdLinc and SLFC will notify the Underwriters and, upon the Underwriters'
request, prepare and file with the Commission and furnish, without charge
to the Underwriters and to any dealer in securities, as many copies as the
Underwriters may from time to time reasonably request, an amendment or
supplement to such Prospectus which corrects such statement or omission or
amendment that effects such compliance.
(c) XxXxxx and SLFC will immediately inform the Representative (i) of
the receipt by EdLinc or SLFC of any communication from the Commission or
any state securities authority concerning the offering or sale of the Notes
and (ii) of the commencement of any lawsuit or proceeding to which EdLinc
or SLFC is a party relating to the offering or sale of the Notes.
(d) EdLinc will furnish to the Underwriters, without charge, copies of
the Registration Statement (at least one copy of which will be signed and
include all documents and exhibits thereto or incorporated by reference
therein), the Prospectus, and all amendments and supplements to such
documents relating to the Notes, in each case in such quantities as the
Underwriters may reasonably request.
(e) EdLinc, SLFC and the Transferor will cooperate with the
Underwriters and with its counsel in connection with the qualification of,
or procurement of exemptions with respect to, the Notes for offering and
sale by the Underwriters and by dealers, and with the determination of
their eligibility for investment, under the laws of such jurisdictions as
the Underwriters may designate and will file such consents to service of
process or other documents
-9-
necessary or appropriate to effect such qualification or exemptions;
provided that in no event shall either the Transferor, SLFC or EdLinc be
obligated to qualify to do business in any jurisdiction where it is not now
so qualified (other than the State of South Dakota if not currently so
qualified) or to take any action which would subject it to service of
process in suits, other than those arising out of the offering or sale of
the Notes, in any jurisdiction where it is not now so subject.
(f) EdLinc, SLFC and the Transferor consent to the use, in accordance
with the securities or Blue Sky laws of such jurisdictions in which the
Notes are offered by the Underwriters and by dealers, of the Prospectus.
(g) To the extent, if any, that the ratings provided with respect to
the Notes by the Rating Agencies are conditional upon the furnishing of
documents or the taking of any other actions by EdLinc, SLFC or the
Transferor, SLFC, EdLinc, SLFC and the Transferor shall cause to be
furnished such documents and such other actions to be taken.
(h) So long as any of the Notes are outstanding, EdLinc, SLFC or the
Transferor will furnish to the Underwriters (i) as soon as available, a
copy of each document relating to EdLinc, SLFC, the Transferor or the Notes
required to be filed with the Commission pursuant to the Exchange Act, or
any order of the Commission thereunder, and (ii) such other information
concerning EdLinc, SLFC or the Transferor, as the Underwriters may request
from time to time.
(i) To make generally available to the Noteholders and the
Underwriters as soon as practicable, a copy of each Monthly Servicing
Report (as defined in the Indenture) required under the Indenture and the
Servicing Agreement, and to file with the Commission on Form 8-K such
Monthly Servicing Reports for at least 12 consecutive months beginning
after the effective date of the Registration Statement (as defined in Rule
158(c) under the Securities Act) in compliance with Section 11(a) of the
Act and the rules and regulations of the Commission thereunder (including
Rule 158).
(j) If this Agreement shall terminate or shall be terminated after
execution and delivery pursuant to any provisions hereof or if this
Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of EdLinc, SLFC or the Transferor to comply with the
terms or fulfill any of the conditions of this Agreement SLFC agrees to
reimburse the Underwriters for all out-of-pocket expenses (including,
without limitation, fees and expenses of its counsel; costs related to its
due diligence investigation of EdLinc, SLFC and the Transferor; costs of
preparing to market and the actual marketing of the Notes; and costs
incurred in the performance of its obligations hereunder) reasonably
incurred by them in their roles as Underwriters, but without any further
obligation on the part of SLFC for loss of profits or otherwise.
(k) The net proceeds from the sale of the Notes hereunder will be
applied substantially in accordance with the description set forth in the
Prospectus. EdLinc, SLFC and the Transferor will not take or omit to take
any action which will in any way cause the proceeds from the sale of the
Notes to be applied in a manner contrary to that provided for in the
Prospectus and the Indenture.
-10-
(l) Except as stated in this Agreement and in the Prospectus, neither
EdLinc, the Transferor nor SLFC has taken, nor will any of them take, and
each of them will use their best efforts to cause each of their respective
directors and officers not to take, directly or indirectly, any action
designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Notes to facilitate the
sale or resale of the Notes; it being understood that no such action of any
Underwriters shall be deemed to be an action of EdLinc, the Transferor or
SLFC.
(m) [Reserved]
(n) Deposits required by the Indenture into the Acquisition Fund, the
Alternative Loan Guarantee Fund and the Reserve Fund shall be made on the
Closing Date.
(o) Other than pursuant to your consent and as permitted by the
Securities Act and the Rules and Regulations, EdLinc, SLFC and the
Transferor will not distribute any prospectus or other offering material in
connection with the offering of the Notes.
5. Indemnification and Contribution
(a) SLFC agrees to indemnify and hold harmless the Underwriter and
each person, if any, who controls the Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based upon
any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, the Prospectus, or in any
amendment or supplement thereto, or in any application filed under the Blue
Sky laws of any jurisdiction or other document executed by EdLinc or SLFC
for that purpose, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are
based upon any untrue statement or omission or alleged untrue statement or
omission which has been made therein or omitted therefrom in reliance upon
and in conformity with the information relating to the Underwriters
furnished in writing to EdLinc by or on behalf of any Underwriter through
the Representative expressly for use in connection therewith. The foregoing
indemnity agreement shall be in addition to any liability which EdLinc or
SLFC may otherwise have.
(b) If any action, suit or proceeding shall be brought against an
Underwriter or any person controlling an Underwriter in respect of which
indemnity may be sought against SLFC, such Underwriter or such controlling
person, as the case may be, shall promptly notify the party against whom
indemnification is being sought (the "indemnifying parties"), and such
indemnifying parties shall assume the defense thereof, including the
employment of counsel and payment of all reasonable fees and expenses. The
Underwriter or any such controlling person, as the case may be, shall have
the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the Underwriter or such controlling
person unless (i) the indemnifying parties have agreed in writing to pay
such fees and expenses, (ii) the indemnifying parties have failed to assume
the defense and employ counsel, or (iii) the named parties to any such
action,
-11-
suit or proceeding (including any impleaded parties) include both the
Underwriter or such controlling person and the indemnifying parties and the
Underwriter or such controlling person shall have been advised by its
counsel that representation of such indemnified party and any indemnifying
party by the same counsel would be inappropriate under applicable standards
of professional conduct (whether or not such representation by the same
counsel has been proposed) due to actual or potential differing interests
between them (in which case the indemnifying party shall not have the right
to assume the defense of such action, suit or proceeding on behalf of the
Underwriter or such controlling person). It is understood, however, that
the indemnifying parties shall, in connection with any one such action,
suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable
fees and expenses of only one separate firm of attorneys (in addition to
any local counsel) at any time for the Underwriter and controlling persons
not having actual or potential differing interests with the Underwriter or
among themselves, which firm shall be designated in writing by the
Underwriter, and that all such fees and expense shall be reimbursed on a
monthly basis. The indemnifying parties shall not be liable for any
settlement of any such action, suit or proceeding effected without their
written consent, but if settled with such written consent, or if there be a
final judgment for the plaintiff in any such action, suit or proceeding,
the indemnifying parties agree to indemnify and hold harmless the
Underwriter and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or
judgment to the extent provided in paragraph (a).
(c) The Underwriters agree, jointly and severally, to indemnify and
hold harmless EdLinc and SLFC and their respective directors and officers,
and any person who controls EdLinc or SLFC within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent
as the indemnity from SLFC to the Underwriters set forth in paragraph (a)
hereof, but only with respect to information relating to the Underwriters
furnished in writing by or on behalf of the Underwriters through the
Representative expressly for use under the caption "Plan of Distribution"
in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or "Blue Sky"
applications. If any action, suit or proceeding shall be brought against
EdLinc or SLFC, any of their respective directors or officers, or any such
controlling person based on the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus
and in respect of which indemnity may be sought against the Underwriters
pursuant to this paragraph (c), the Underwriters shall have the rights and
duties given to SLFC by paragraph (b) above (except that if SLFC shall have
assumed the defense thereof, the Underwriters shall not be required to do
so, but may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the
Underwriters' expense), and EdLinc and SLFC, their respective directors and
officers, and any such controlling person shall have the rights and duties
given to the Underwriters by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which the Underwriters may
otherwise have.
(d) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party
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as a result of such losses, claims, damages, liabilities or expenses (i) in
such proportion as is appropriate to reflect the relative benefits received
by EdLinc and SLFC on the one hand and the Underwriters on the other hand
from the offering of the Notes, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of EdLinc and SLFC on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The
relative benefits received by XxXxxx and SLFC on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Notes (before deducting
expenses) received by XxXxxx and SLFC bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault
of XxXxxx and SLFC on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by EdLinc
or SLFC on the one hand or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) EdLinc, SLFC and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 5 were determined by
a pro rata allocation or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating any claim or defending
any such action, suit or proceeding. Notwithstanding the provisions of this
Section 5, the Underwriters shall not be required to contribute any amount
in excess of the amount received by the Underwriters over the price paid by
the Underwriters for the Notes purchased by them and distributed to the
public less the amount of any damages which the Underwriters have 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 Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 5 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 5 and the
representations and warranties of EdLinc, SLFC, the Transferor and the
Underwriters set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf
of the Underwriters, EdLinc, SLFC or the Transferor or any person
controlling any of them or their respective directors or officers, (ii)
acceptance of any Notes and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to the Underwriters, EdLinc or
SLFC or any person controlling any of them or their respective directors or
officers, shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in this Section 5.
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6. Conditions of the Underwriters' Obligations
The obligations of the Underwriters to purchase the Notes hereunder are
subject to the following conditions:
(a) All actions required to be taken and all filings required to be
made by EdLinc, SLFC or the Transferor under the Securities Act and the
Trust Indenture Act prior to the sale of the Notes shall have been duly
taken or made. At and prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement or the sale of the Notes or
the qualification of the Indenture shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of EdLinc, SLFC, the Transferor or the Underwriters, shall be
contemplated by the Commission or any Blue Sky Authorities.
(b) Any requests to the Commission for inclusion of additional or
supplemental information in the Registration Statement or the Prospectus
shall have been complied with by EdLinc, SLFC and the Transferor to your
reasonable satisfaction.
(c) Since the respective dates as of which information is given in the
Registration Statement (or any amendment or supplement thereto), except as
may otherwise be stated therein or contemplated thereby, there shall not
have occurred (i) any change, or any development involving a prospective
change, in or affecting the condition (financial or other) or net worth of
EdLinc, SLFC or the Transferor not contemplated by the Registration
Statement, which in the opinion of the Representative, would materially
adversely affect the market for the Notes, or (ii) any event or development
which makes any statement made in the Registration Statement or Prospectus
untrue or which, in the opinion of EdLinc and its counsel SLFC and its
counsel, the Transferor and its counsel or the Underwriters and their
counsel, requires the filing of any amendment to or change in the
Registration Statement or Prospectus in order to state a material fact
required by any law to be stated therein or necessary in order to make the
statements therein not misleading, if amending or supplementing the
Registration Statement or Prospectus to reflect such event or development
would, in the opinion of the Underwriters, materially adversely affect the
market for the Notes.
(d) At the time of the Closing, (i) the Notes, each of the Basic
Documents, EdLinc's Program Agreements, the Transferor's Program
Agreements, SLFC's Program Agreements, the Investment Agreement, the
Trustee's Program Agreements, the Transferor Trustee's Program Agreements
and this Agreement shall have been duly authorized, executed and delivered,
and in full force and effect, and, in the case of the Notes, authenticated;
(ii) EdLinc's Authorizing Resolutions, SLFC's Authorizing Resolution and
the Transferor's Authorizing Resolution shall have been duly adopted by
XxXxxx, SLFC and the Transferor, as applicable, and shall be in full force
and effect; (iii) the contracts between the United States Secretary of
Education and each of the Guarantee Agencies shall be duly authorized,
executed and delivered and in full force and effect; (iv) the documents
referred to in clauses (i) through (iii) above shall be in forms
satisfactory to the Representative and shall not have been amended,
modified or supplemented from the respective forms heretofore delivered to
the Representative, except as may have been agreed to in writing by the
Representative, and EdLinc, SLFC and the Transferor shall have duly adopted
and there shall be in full force and effect such additional resolutions and
agreements, as shall, in the opinion of Xxxxxx & Xxxxxxx LLP, Minneapolis,
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Minnesota, be necessary in connection with the transactions contemplated
hereby; and (v) EdLinc, SLFC, the Transferor, the Trustee, the Auction
Agent, the Broker-Dealers, the Investment Agreement Provider, the
Transferor's Trustee, the EdLinc 1998 Indenture Trustee, AFSA, GLHESC and
the Guarantee Agencies shall perform or have performed all their respective
obligations required under or specified in this Agreement, the Basic
Documents, the Investment Agreement, EdLinc's Authorizing Resolutions,
SLFC's Authorizing Resolution, the Transferor's Authorizing Resolution,
EdLinc's Program Agreements, the Transferor's Program Agreements, SLFC's
Program Agreements and the Trustee's Program Agreements, to be performed
simultaneously with or prior to Closing.
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx & Xxxxxxx LLP, Special Counsel to EdLinc and the
Transferor, dated the Closing Date and addressed to the Underwriters, in
form and scope satisfactory to the Representative and its counsel.
(f) The Underwriters shall have received on the Closing Date the
approving opinion of Xxxxxx & Xxxxxxx LLP, dated the Closing Date and in
form and scope satisfactory to the Representative and its counsel, and a
letter addressed to the Underwriters to the effect that the Underwriters
may rely on such opinion and consenting to the references to it in the
Prospectus.
(g) The Underwriter shall have received on the Closing Date an opinion
of Xxxxxx X. Xxxx, counsel for EdLinc and SLFC, dated the Closing Date and
addressed to the Underwriter, in form and scope satisfactory to the
Underwriter and its counsel.
(h) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxxxx, Xxxxx, Xxxxxxx & Xxxxx, counsel for the Trustee, the
EdLinc 1998 Indenture Trustee and the Transferor's Trustee, dated the
Closing Date and addressed to the Underwriters, in form and scope
satisfactory to the Representative and its counsel.
(i) The Underwriters shall have received on the Closing Date an
opinion of counsel for the Auction Agent, dated the Closing Date and
addressed to the Underwriters, in form and scope satisfactory to the
Representative and its counsel.
(j) The Underwriters shall have received on the Closing Date opinions
of counsel for the Investment Agreement Providers, dated the Closing Date
and addressed to the Underwriters, in form and scope satisfactory to the
Representative and its counsel.
(k) The Underwriter shall have received on the Closing Date opinions
of counsel for such Guarantee Agencies, if any, specified by the
Representative, each dated the Closing Date and addressed to the
Underwriters, in form and scope satisfactory to the Representative and its
counsel.
(l) The Underwriters shall have received on the Closing Date an
opinion or opinions of Xxxxx & Xxxxxxx, counsel for the Underwriters, dated
the Closing Date, and addressed to the Underwriters, in form and scope
satisfactory to the Representative.
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(m) The Underwriters shall have received on the Closing Date from Xxxx
Xxxxxx LLP, certified public accountants, a comfort letter dated the
Closing Date, and in form and substance satisfactory to the Representative,
to the effect that they have carried out certain specified procedures, not
constituting an audit, with respect to certain financial information
pertaining to EdLinc and to the Financed Student Loans and setting forth
the results of such specified procedures.
(n) All the representations and warranties of EdLinc, SLFC and the
Transferor contained in this Agreement, EdLinc's Program Agreements, the
Transferor's Program Agreements, SLFC's Program Agreements and the Basic
Documents shall be true and correct in all material respects on and as of
the date hereof and on and as of the Closing Date as if made on and as of
the Closing Date.
(o) EdLinc, SLFC and the Transferor each shall have performed or
complied with any of its agreements herein contained and required to be
performed or complied with by it hereunder at or prior to the Closing Date.
(p) The Underwriters shall have received by instrument dated the
Closing Date (at the option of the Representative), in addition to the
opinions referred to in clauses (d) through (k) of this Section 6, the
right to rely on opinions provided by such counsel and all other counsel
under the terms of the Basic Documents or to Xxxxx'x and Fitch.
(q) The Underwriters shall have received evidence satisfactory to them
that Xxxxx'x and Fitch have rated (i) the Series 2001-1 Senior Notes "Aaa"
and "AAA", respectively, and (ii) the Series 2001-1 Subordinate Notes, "A3"
and "A", respectively, and there has not been any announcement by Xxxxx'x
or Fitch that (Y) it is downgrading any of its ratings assigned to the
Notes or (Z) it is reviewing its ratings assigned to the Notes with a view
to possible downgrading, or with negative implications, or direction not
determined.
(r) The Underwriters shall have received a certificate of the
President of EdLinc, SLFC and the Transferor, as applicable, affirming the
matters specified in Sections 6(n) through (q) and such other matters as
the Representative may reasonably request.
(s) The Underwriters shall have received (i) a certificate or
certificates from the Secretary or Assistant Secretary of each of EdLinc,
SLFC and the Transferor certifying and attaching copies of (A)
organizational documents, (B) resolutions authorizing this Agreement, the
Basic Documents, the Investment Agreement, EdLinc's Program Agreements, the
Transferor's Program Agreements, SLFC's Program Agreements and the
transactions contemplated hereby and thereby, (C) all written
communications, and any memoranda relating to conversations between such
entity, its officers and employees or, to its knowledge, its counsel,
accountants or other representatives, on the one hand, and the Commission
or its staff, on the other hand, relating to the Registration Statement and
certifying the incumbency and signature of the officers executing this
Agreement, the Basic Documents, EdLinc's Program Agreements, the
Transferor's Program Agreements and SLFC's Program Agreements; and (ii)
certificates of legal existence and good standing with respect to SLFC from
the Secretary of State of the State of South Dakota and with respect to
XxXxxx and the Transferor from the Secretary of State of the
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State of Delaware, dated as of the Closing Date or such earlier date within
two weeks of the Closing Date.
(t) The Underwriters shall have received a certificate of the Trustee,
signed by an officer of the Trustee, dated the Closing Date, (i) to the
effect that the Trustee received each of the items enumerated in Section
3.2 of the Indenture; (ii) containing permission to include the information
concerning the Trustee in the Prospectus and to use the Basic Documents,
the Investment Agreement and the Trustee's Program Agreements in connection
with the public offering of the Notes; (iii) representing that (A) the
Basic Documents to which the Trustee is a party, the Investment Agreement
and the Trustee's Program Agreements, have been duly authorized, executed
and delivered on behalf of the Trustee and are in full force and effect,
(B) such agreements may be used in connection with the public offering of
the Notes, (C) the Trustee is an "eligible lender" under the Higher
Education Act of 1965, as amended, (D) no litigation is pending or, to his
or her knowledge, threatened in any court to restrain or enjoin the
issuance or delivery of any of the Notes, or the collection of revenues
pledged or to be pledged to pay the principal of, and interest on, the
Notes, or in any way contesting or affecting the validity or enforceability
of the Notes, the Basic Documents, the Investment Agreement, the Trustee's
Program Agreements or the Underwriting Agreement or the collection of said
revenues or the pledge thereof, (E) there is no litigation pending or to
his or her knowledge threatened against the Trustee, or involving any of
the property or assets under the control of the Trustee, which involves the
possibility of any judgment or liability which may materially adversely
affect the security for the Notes or the collection of revenues pledged or
to be pledged to pay the principal of, and interest on, the Notes or
materially adversely affect the Trustee or the Program (but in lieu of such
certificate the Representative may in its sole discretion accept an opinion
of the Trustee's counsel as to the matters referred to above, acceptable to
the Representative in form and substance, that in their opinion the issues
raised in any such pending or threatened litigation are without substance
or that the contentions of the plaintiffs therein are without merit), and
(F) he or she has carefully examined the Prospectus with respect to
references to the Trustee and that, in his or her opinion, with respect to
references to the Trustee, as of the date of the Prospectus and at all
times subsequent through and including the Closing Date, the Prospectus did
not and does not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(u) The Underwriters shall have received certified copies of the Basic
Documents, XxXxxx's Authorizing Resolutions, SLFC's Authorizing Resolution,
the Transferor's Authorizing Resolution, XxXxxx's Program Agreements, the
Transferor's Program Agreements, SLFC's Program Agreements, in each case
certified as of the Closing Date by each corporation's respective corporate
Secretary to be a true and correct copy thereof and in full force and
effect.
(v) The Underwriters shall have received certified copies of the
Trustee's Program Agreements and the Investment Agreement, in each case
certified as of the Closing Date by a duly authorized officer of the
Trustee to be a true and correct copy thereof and in full force and effect,
and certified copies of the Broker-Dealer Agreements, in each case
certified as of the Closing Date by a duly authorized officer of the
respective the Broker-Dealers to be a true and correct copy thereof and in
full force and effect.
-17-
(w) The Underwriters shall have received certificates of the
Transferor's Trustee and the EdLinc 1998 Indenture Trustee, signed by an
officer of each such trustee, dated the Closing Date, (i) containing
permission to include the information concerning the Transferor's Trustee
and the EdLinc 1998 Indenture Trustee, as applicable, in the Prospectus and
to use the Transferor Trustee's Program Agreements and the EdLinc 1998
Indenture Trustee's Program Agreements, as applicable, in connection with
the public offering of the Notes; (ii) representing that (A) the Transferor
Trustee's Program Agreements and the EdLinc 1998 Indenture Trustee's
Program Agreements have been duly authorized, executed and delivered on
behalf of the Transferor's Trustee and the EdLinc 1998 Indenture Trustee,
as applicable, and each is in full force and effect, (B) such agreements
may be used in connection with the public offering of the Notes, (C) the
Transferor's Trustee and the EdLinc 1998 Indenture Trustee is an "eligible
lender" under the Higher Education Act of 1965, as amended, (D) no
litigation is pending or, to his or her knowledge, threatened in any court
in any way contesting or affecting the validity or enforceability of the
Transferor Trustee's Program Agreements and the EdLinc 1998 Indenture
Trustee's Program Agreements, (E) there is no litigation pending or to his
or her knowledge threatened against the Transferor's Trustee or the EdLinc
1998 Indenture Trustee, or involving any of the property or assets under
the control of the Transferor's Trustee or the EdLinc 1998 Indenture
Trustee, which involves the possibility of any judgment or liability which
may materially adversely affect the security for the Notes or materially
adversely affect the Transferor's Trustee or the EdLinc 1998 Indenture
Trustee or the Program (but in lieu of such certificate the Representative
may in its sole discretion accept an opinion of the Transferor's Trustee
counsel or the EdLinc 1998 Indenture Trustee's counsel as to the matters
referred to above, acceptable to the Representative in form and substance,
that in their opinion the issues raised in any such pending or threatened
litigation are without substance or that the contentions of the plaintiffs
therein are without merit), and (F) he or she has carefully examined the
Prospectus with respect to references to the Transferor's Trustee and the
EdLinc 1998 Indenture Trustee, as applicable, and that, in his or her
opinion, with respect to references to the Transferor's Trustee and the
EdLinc 1998 Indenture Trustee, as applicable, as of the date of the
Prospectus and at all times subsequent through and including the Closing
Date, the Prospectus did not and does not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(x) The Underwriters shall have received on the Closing Date
certificates of officers for such Guarantee Agencies and Sub-servicers, if
any, specified by the Representative, each dated the Closing Date,
containing permission to include the information concerning that entity in
the Prospectus and covering such other matters specified by the
Representative, in form and scope satisfactory to the Representative and
its counsel.
(y) The Underwriters shall have received such additional certificates,
instruments and other documents as shall be requested by the
Representative, including, without limitation, from EdLinc, SLFC, the
Transferor, the Trustee, the Transferor's Trustee, the EdLinc 1998
Indenture Trustee, Sub-Servicers, the Auction Agent, the Broker-Dealers,
the Investment Agreement Provider, and such Guarantee Agencies, if any,
specified by the Representative.
-18-
All opinions, certificates, letters and other documents referred in this
Section 6 will be in compliance with the provisions hereof only if they are
reasonably satisfactory in form and substance to the Representative and counsel
for the Underwriters.
Any certificate or document signed by any officer of EdLinc, SLFC or the
Transferor and delivered to the Underwriters, or to counsel for the
Underwriters, shall be deemed a representation and warranty by EdLinc, SLFC or
the Transferor, respectively, to the Underwriters as to the statements made
therein.
If these conditions are not satisfied, or if the obligations of the
Underwriters shall be terminated for any reason permitted by this Agreement,
this Agreement shall terminate and neither the Underwriters nor EdLinc, SLFC or
the Transferor shall be under further obligation hereunder, except that the
respective obligations of EdLinc, the Transferor and SLFC and the Underwriters
for the payment of expenses, as provided in Section 7 hereof, shall continue in
full force and effect.
7. Expenses
EdLinc and SLFC, jointly and severally, agree to pay or to otherwise cause
the payment of the following costs and expenses and all other costs and expenses
incident to the performance by them and the Transferor of their respective
obligations hereunder: (i) the preparation, printing or reproduction and
distribution of any Registration Statement, each Prospectus and each amendment
or supplement thereto and each other Basic Document, EdLinc's Program Agreement,
the Transferor's Program Agreements, SLFC's Program Agreement, the Investment
Agreement and Trustee's Program Agreement; (ii) the preparation, printing,
authentication, issuance and delivery of definitive certificates for the Notes;
(iii) the qualification of the Indenture under the Trust Indenture Act; (iv) the
fees and disbursements of (A) counsel and Special Counsel for EdLinc, SLFC and
the Transferor, (B) the Trustee, the Transferor's Trustee, the EdLinc 1998
Indenture Trustee and their respective counsel, (C) the Auction Agent and its
counsel, (D) any Guarantee Agencies and Sub-servicers and their respective
counsel, (E) the Investment Agreement Provider and its counsel, (F) the
Depository Trust Company in connection with the book-entry registration of the
Notes, (G) Xxxx Xxxxxx LLP, accountants for EdLinc, SLFC and the Transferor and
issuer of the specified procedures letter referenced in Section 6(m) hereof, and
(H) counsel for the Underwriters as set forth in Sections 1 and 2 hereof; (v)
the fees charged by Xxxxx'x and Fitch for rating the Notes; (vi) the Blue Sky
filing fees and expenses; and (vii) the cost of any advertising expenses
requested or undertaken by EdLinc, SLFC or the Transferor and incurred in
connection with the public offering of the Notes. The Underwriters shall be
under no obligation to pay any expense incident to the performance of the
obligations of EdLinc, SLFC or the Transferor hereunder.
The Underwriters shall pay the expenses incurred by it in connection with
its public offering and distribution of the Notes (except as otherwise provided
in the preceding paragraph).
-19-
8. Nonpetition Covenant
Each Underwriter covenants and agrees that it will not at any time
institute against EdLinc or the Transferor, or join in any institution against
EdLinc or the Transferor of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law in connection with any
obligation relating to this Agreement.
9. Effective Date of Agreement
This Agreement shall become effective upon the execution and delivery
hereof by all the parties hereto.
10. Representations, Warranties and Agreements to Survive Delivery
All representations, warranties and agreements contained in the Agreement
or contained in certificates of officers of EdLinc, SFLC or the Transferor
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or any
officer, director, or controlling person of the Underwriters, or by or on behalf
of EdLinc, SFLC or the Transferor, and shall survive delivery of the Notes to
the Underwriters. The expense payment provisions set forth in Sections 4(j) and
7 hereof and the indemnification and contribution provisions in Section 5 hereof
also shall survive delivery of the Notes to the Underwriters and any termination
or cancellation of this Agreement.
11. Termination of Agreement
This Agreement shall be subject to termination in the absolute discretion
of the Representative, without liability on the part of the Underwriters to
EdLinc, SLFC or the Transferor, by notice to EdLinc, SLFC and the Transferor, if
on or prior to the Closing Date (i) trading in securities generally on the New
York Stock Exchange, American Stock Exchange or the Nasdaq National Market shall
have been suspended or materially limited; (ii) a general moratorium on
commercial banking activities in New York, Delaware or South Dakota shall have
been declared by either federal or state authorities; (iii) there shall have
occurred any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United States is
such as to make it, in the judgment of the Representative, impracticable or
inadvisable to commence or continue the offering of the Notes on the terms set
forth in the Prospectus or to enforce contracts for the resale of the Notes by
the Underwriters; (iv) legislation shall be introduced in or enacted by the
Congress of the United States or adopted by either the House of Representatives
or the Senate or approved by a Committee thereof, or a decision by a court of
the United States or the Tax Court of the United States shall be rendered, or a
ruling, regulation, proposed regulation or official statement by or on behalf of
the Treasury Department of the United States, the Internal Revenue Service or
any other governmental agency shall be made, an announcement by a member of
Congress shall be made relating to legislation which has been introduced or
which is proposed to be introduced, or any other event shall occur, with respect
to federal taxation upon revenues or other income of the general character
expected to be pledged under the Indenture or upon interest received on
securities of the general character of the Notes, or which would have the effect
of changing, directly or indirectly, the federal income tax
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consequences of interest on securities of the general character of the Notes in
the hands of the holders thereof, which in the opinion of the Representative
materially and adversely affects the market price of the Notes; (v) legislation
shall be enacted by the States of South Dakota or Delaware, or a decision by a
court of competent jurisdiction of the States of South Dakota or Delaware or any
administrative tribunal of the States of South Dakota or Delaware or other
governmental agency or department thereof shall be rendered with respect to
taxation by the States of South Dakota or Delaware or any of their respective
political subdivisions upon revenues or other income of the general character
expected to be pledged under the Indenture or upon interest received on
securities of the general character of the Notes, or which would have the effect
the changing, directly or indirectly, the tax consequences under the States of
South Dakota or Delaware tax laws of interest on securities of the general
character of the Notes in the hands of the holders thereof, which in the opinion
of the Representative materially affects the market price of the Notes; (vi)
additional material restrictions not in force as of the date hereof shall have
been imposed upon trading in securities of the general character of the Notes by
any governmental authority or by any national securities exchange; (vii) a
default shall have occurred in the payment of principal or interest on
outstanding obligations of EdLinc, SLFC or the Transferor, the State of South
Dakota, or any agency or authority thereof, which in the opinion of the
Representative materially and adversely affects the market for the Notes; or
(vii) any rating of the Notes shall have been changed or withdrawn by Xxxxx'x or
Fitch, or Xxxxx'x or Fitch shall have announced that it is considering a change
or withdrawal of such rating and such action, in the opinion of the
Representative, shall materially and adversely affect the market for the Notes.
Notice of such termination may be given to EdLinc, SLFC and the Transferor, by
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
12. Information Furnished by the Underwriters
The statements set forth under the heading "Underwriting" in the Prospectus
Supplement dated July 23, 2001 (the "Prospectus Supplement") constitute the only
information furnished by or on behalf of the Underwriters as such information is
referred to in Sections 3(b) and 5 hereof, and each Underwriter confirms that
such statements relating to such Underwriter are correct.
13. Miscellaneous
Except as otherwise provided in Sections 4 and 11 hereof, notice given
pursuant to any provision of this Agreement shall be in writing and shall be
delivered (i) if to EdLinc, SLFC or the Transferor, at 000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx, Xxxxx Xxxxxx 00000, Attention: X. Xxxxxxx Xxxxxxxxx, (ii)
if to the Underwriters, to Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx X. Xxxxx.
This Agreement has been and is made solely for the benefit of, and shall be
binding upon, the Underwriters, the Transferor, SLFC, EdLinc, their respective
directors, officers, trustees and controlling persons referred to in Section 5
hereof and their respective successors and assigns, to the extent provided
herein, and no other person shall acquire or have any right under or by virtue
of this Agreement. Neither the term "successor" nor the term "successors and
assigns" as used in this Agreement shall include a purchaser from the
Underwriters of any of the Notes in his status as such purchaser.
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14. Applicable Law; Counterparts; Headings
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and to be performed
within the State of New York without giving effect to the choice of laws or
conflict of laws principles thereof.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof or
thereof shall have been executed and delivered on behalf of each party hereto.
The headings of the Sections of this Agreement are inserted for convenience
only and shall not be deemed to be part hereof.
[The remainder of this page is intentionally left blank.]
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Please confirm that the foregoing correctly sets forth the agreement among
EdLinc, SLFC, the Transferor and the Underwriters.
Very truly yours,
EDUCATION LOANS INCORPORATED
("EdLinc")
By /s/ A. Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: X. Xxxxxxx Xxxxxxxxx
Title: President
STUDENT LOAN FINANCE CORPORATION
("SLFC")
By /s/ A. Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: X. Xxxxxxx Xxxxxxxxx
Title: President
GOAL FUNDING, INC.
(the "Transferor")
By /s/ A. Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: X. Xxxxxxx Xxxxxxxxx
Title: President
Confirmed as of the date first
above mentioned.
XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
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APPENDIX A
----------
Initial Aggregate Underwriting Initial
Series Principal Amount Maturity Date Purchase Price Discount Interest Rate
------ ---------------- ----------------- -------------- -------------- -------------
2001-1A $ 79,000,000 December 1, 2035 99.561% 0.439% 3.80%
2001-1B 79,000,000 December 1, 2035 99.561 0.439 3.80
2001-1C 23,800,000 December 1, 2035 99.561 0.439 3.90
Total $181,800,000 $181,002,000 $798,000
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APPENDIX B
----------
CERTAIN DEFINITIONS
Capitalized terms used but not defined in this Appendix B or elsewhere in
this Agreement have the respective meanings ascribed thereto in the Supplemental
Indenture.
"AFSA" means AFSA Data Corporation, a Delaware corporation and a wholly
owned subsidiary of Fleet Holding Corp.
"AFSA Bailment Agreement" means the Bailment Agreement, dated as of
December 1, 1999 among AFSA, the Trustee and Edlinc.
"AFSA Sub-servicing Agreement" means the Secondary Market FFEL Servicing
Agreement, dated as of February 1, 1999, between AFSA and SLFC, as amended.
"Bailment Agreements" means the SLFC Bailment Agreement, the AFSA Bailment
Agreement and the GLHESC Bailment Agreement.
"Basic Documents" means the Indenture, the Supplemental Indenture, the
Transfer Agreement, the Auction Agent Agreement, the Broker-Dealer Agreements,
the Servicing Agreement, the Bailment Agreements, the Joint Sharing Agreement
and the Letter of Representations.
"EdLinc's Authorizing Resolutions" means the Resolutions of XxXxxx's board
of directors, adopting, accepting, ratifying and approving:
1. the Basic Documents;
2. this Agreement and the Prospectus;
3. one or more investment agreements (individually and collectively the
"Investment Agreement") between the Trustee and one or more parties
meeting the requirements of the Indenture (individually and
collectively the "Investment Agreement Provider");
4. the Transferor's Student Loan Purchase Agreements; and
5. EdLinc's Program Agreements.
"EdLinc 1998 Indenture" means the Indenture of Trust, dated as of February
1, 1998, between EdLinc and the EdLinc 1998 Indenture Trustee, as amended and
supplemented.
"EdLinc 1998 Indenture Trustee" means U.S. Bank National Association, as
trustee under the EdLinc 1998 Indenture.
"EdLinc 1998 Indenture Trustee Joint Sharing Agreement" means the Joint
Sharing Agreement, dated as of December 1, 1999, among EdLinc, the Trustee and
the EdLinc 1998 Indenture Trustee.
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"EdLinc 1998 Indenture Trustee's Program Agreements" means the EdLinc 1998
Indenture and the EdLinc 1998 Indenture Trustee Joint Sharing Agreement.
"EdLinc's Program Agreements" means the Bailment Agreements, the Joint
Sharing Agreements, the Servicing Agreement, the EdLinc 1998 Indenture and the
EdLinc Student Loan Purchase Agreements.
"EdLinc's Student Loan Purchase Agreements" means the Student Loan Purchase
Agreements between EdLinc and the eligible lenders described in Exhibit H-1 to
the Supplemental Indenture and the forms of Student Loan Purchase Agreements.
"GLHESC" means Great Lakes Higher Education Services Corporation, a
non-corporation.
"GLHESC Bailment Agreement" means the Bailment Agreement, dated as of
December 1, 1999 among GLHESC, the Trustee and Edlinc.
"GLHESC Sub-servicing Agreement" means the Student Loan Origination and
Servicing Agreement, dated as of November 20, 1998, between GLHESC and SLFC, as
amended.
"Goal Funding Indenture" means the Indenture, dated as of May 1, 1999,
among the Transferor's Trustee, the Transferor, Kitty Hawk Funding Corporation,
as the conduit lender, certain financial institutions identified therein, as the
alternative lenders, NationsBank, N.A., as the administrative agent, and Ambac
Assurance Corporation, as the surety bond provider, as amended and supplemented.
"Joint Sharing Agreement" means, collectively, the EdLinc 1998 Indenture
Trustee Joint Sharing Agreement and the Transferor's Trustee Joint Sharing
Agreement.
"Letter of Representations" means, Book-Entry-Only Auction-Rate/Money
Market Preferred/and Remarketed Preferred Securities Letter of Representations,
dated as of July 1, 2001, from EdLinc and the Trustee to The Depository Trust
Company ("DTC"), containing certain representations to induce DTC to accept the
Notes for deposit.
"Loan Purchase Contracts" means, individually and collectively, XxXxxx's
Student Loan Purchase Agreements and the Transferor's Student Loan Purchase
Agreements.
"Servicing Agreement" means the Servicing and Administration Agreement,
dated as of December 1, 1999, as amended by Amendment No. 1 to Servicing and
Administration Agreement, dated as of December 1, 2000, and Amendment No. 2 to
Servicing and Administration Agreement, dated as of July 1, 2001, each among
EdLinc, SLFC and the Trustee.
"SLFC's Authorizing Resolutions" means the Resolutions of the SLFC's board
of directors, adopting, accepting, ratifying and approving:
1. the Basic Documents, this Agreement and the Prospectus;
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2. SLFC's Program Agreements; and,
3. EdLinc's Program Agreements.
"SLFC Bailment Agreement" means the Bailment Agreement, dated as of
December 1, 1999, as amended by Amendment No. 1 to Bailment Agreement, dated as
of July 1, 2001, each among SLFC, the Trustee and Edlinc.
"SLFC's Program Agreements" means the Servicing Agreement, the
Sub-servicing Agreements and the SLFC Bailment Agreement.
"Sub-servicers" means AFSA and GLHESC.
"Sub-servicing Agreements" means the AFSA Sub-servicing Agreement and the
GLHESC Sub-Servicing Agreement.
"Transferor's Authorizing Resolutions" means the Resolutions of the
Transferor's board of directors, adopting, accepting, ratifying and approving:
1. this Agreement and the Prospectus; and,
2. the Transferor's Program Agreements.
"Transferor's Program Agreements" means the Transfer Agreement, the Goal
Funding Indenture, the Transferor's Trustee Joint Sharing Agreement and the
Transferor's Student Loan Purchase Agreements.
"Transferor's Trustee Joint Sharing Agreement" means the Joint Sharing
Agreement, dated as of December 1, 1999, among EdLinc, the Transferor, the
Trustee and the Transferor's Trustee.
"Transferor's Student Loan Purchase Agreements" means the Student Loan
Purchase Agreements between the Transferor and the eligible lenders described in
Exhibit H-2 to the Supplemental Indenture.
"Transferor's Trustee" means U.S. Bank National Association, as trustee
under the Goal Funding Indenture.
"Transferor's Trustee's Program Agreements" means the Goal Funding
Indenture, the Transfer Agreement and the Transferor's Trustee Joint Sharing
Agreement.
"Trustee's Program Agreements" means the Guarantee Agreements.
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