SLM Funding LLC Student Loan-Backed Notes Underwriting Agreement
Exhibit 1.1
SLM Funding LLC
Student Loan-Backed Notes
Underwriting Agreement
March 2, 0000
Xxxx xx Xxxxxxx Securities LLC
Global Asset Backed Securitization
000 Xxxxx Xxxxx Xx.; NC1-027-21-04
Xxxxxxxxx, XX 00000
Global Asset Backed Securitization
000 Xxxxx Xxxxx Xx.; NC1-027-21-04
Xxxxxxxxx, XX 00000
and
Xxxxxx Brothers Inc.
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representatives of the several
Underwriters named in Schedule I hereto
Underwriters named in Schedule I hereto
Ladies and Gentlemen:
From time to time SLM Education Credit Finance Corporation (“SLM ECFC”), a Delaware
corporation and SLM Funding LLC (the “Company”), a Delaware limited liability company and a
wholly-owned subsidiary of SLM ECFC, 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 (an “Initial Trust Agreement”) to be
entered into between the Company, the Eligible Lender Trustee specified in the related Pricing
Agreement (the “Eligible Lender Trustee”) on or before the date of each Pricing Agreement and
amended and restated at the Time of Delivery for that Series pursuant to an amended and restated
trust agreement (an “Amended and Restated Trust Agreement,” together with the Initial Trust
Agreement, a “Trust Agreement”) to be entered into between the Company, 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 SLM ECFC and/or VG Funding, LLC (“VG
Funding”) under separate Purchase Agreements, (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 and (iii) the Company will make a deposit into
the Supplemental Purchase Account, which may be used for the purchase of Additional Trust Student
Loans during the Supplemental Purchase Period. 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 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 or the Initial FWP Side Letter (as defined
below).
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
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without any firm
being designated as its or their representatives. This Underwriting Agreement shall not be
construed as an obligation of the Company to sell any of the Securities or as an obligation of any
of the Underwriters to purchase the Securities. The obligation of the Company to issue and sell
any of the Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated Securities, the
purchase price to the Underwriter of such Designated Securities, the names of the Underwriter of
such Designated Securities, the names of the Representatives of such Underwriter and the principal
amount of such Designated Securities to be purchased by each Underwriter and whether any of such
Designated Securities shall be covered by Delayed Delivery Contracts (as defined in Section 3
hereof) and shall set forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not set forth in the
Indenture and the registration statement and prospectus with respect thereto) the terms of such
Designated Securities. A Pricing Agreement shall be in the form of an executed writing (which may
be in counterparts), and may be evidenced by an exchange of telegraphic communications or any other
rapid transmission device designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company and SLM ECFC 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 SLM ECFC, VG Funding, the Servicer or
the Administrator constitute representations, warranties and agreements of SLM ECFC only and not of
the Company):
(a) A registration statement on Form S-3 (File No. 333-103545), 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 the initial Free Writing Prospectus for the
Designated Securities, including any supplements or amendments thereto (the “Initial FWP”)
and the final pricing term sheet (the “Term Sheet” and, together with the Initial FWP, the
“Pre-Pricing Disclosure Package”), each in the form delivered to the Underwriters); and no
stop order suspending the effectiveness of such registration statement has been issued and
no proceeding for that purpose has been initiated or, to the best of SLM ECFC’s or the
Company’s knowledge, threatened by
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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 (other than
the Initial FWP and Term Sheet), in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of this Agreement, being
hereinafter called the “Prospectus”; any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment to the Registration Statement shall be deemed to refer to
and include any annual report of the Company filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act after the effective date of the Registration Statement that is incorporated
by reference in the Registration Statement; and any reference to the Prospectus as amended
or supplemented shall be deemed to refer to the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof,
including any documents incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when they became
effective or were filed with the Commission, as the case may be, conformed in all material
respects to the requirements of the Act, the Exchange Act and the Trust Indenture Act of
1939, as amended (the “Trust Indenture Act”), as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any 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
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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 and the Pre-Pricing
Disclosure Package 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, (i) as of the applicable effective date, as to the
Registration Statement and any amendment thereto, (ii) as of the applicable filing date, as
to the Prospectus and any amendment or supplement thereto, and (iii) as of the date of the
pricing of the Designated Securities, as to the Pre-Pricing Disclosure Package (taken as a
whole), 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 or the Pre-Pricing Disclosure
Package, as applicable, relating to such Designated Securities (it being understood that the
Pre-Pricing Disclosure Package omits certain pricing information relating to the Designated
Securities);
(d) Neither SLM ECFC or any of its subsidiaries, taken as a whole, nor the Company has
sustained any material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree. There has not been (A) any material adverse change in
the capital stock or long-term debt of SLM ECFC 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 SLM ECFC or any of its
subsidiaries, taken as a whole, or the Company, since the date of SLM Corporation’s most
recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q or any Form 8-K filed
with the Commission, as applicable, unless 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
(corporate or otherwise) to own its properties and conduct its business as described in the
Prospectus and to consummate the transactions contemplated therein and herein, and is a
wholly-owned subsidiary of SLM ECFC as of the date hereof. 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 (corporate or otherwise) to own its properties and
conduct its business as described in the Prospectus and to consummate the transactions
contemplated therein. The Administrator has been
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duly formed and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power and
authority (corporate or otherwise) to own its properties and conduct its business as
described in the Prospectus and to consummate the transactions contemplated therein. SLM
ECFC has been duly formed and is validly existing under the laws of the State of Delaware,
with power and authority (corporate or otherwise) to own its properties and conduct its
business as described in the Prospectus Supplement and to consummate the transactions
contemplated therein and herein. VG Funding 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 (corporate or otherwise) to own its properties and conduct its business
as described in the Prospectus and to consummate the transactions contemplated therein and
herein.
(f) All of the equity interests of the Company have been duly and validly authorized
and are owned beneficially and of record by SLM ECFC as of the date hereof;
(g) This Agreement has been, and each Pricing Agreement with respect to the Designated
Securities upon its execution and delivery by the Company and SLM ECFC will have been, duly
authorized, executed and delivered by the Company and SLM ECFC. The side letter authorizing
the delivery of the Initial FWP and the Term Sheet (the “Initial FWP Side Letter”) has been
duly authorized, executed and delivered by the Company, SLM ECFC and SLM Corporation to each
of the Underwriters. The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the Pricing Agreement
with respect to such Designated Securities, and, in the case of any Contract Securities,
pursuant to Delayed Delivery Contracts with respect to such Contract Securities, such
Designated Securities and Contract Securities will have been duly executed, authenticated,
issued and delivered. The Designated Securities will constitute valid and legally binding
obligations of the related Trust entitled to the benefits provided by the Indenture, which
will be substantially in the form filed as an exhibit to the Registration Statement. The
Indenture has been duly authorized and duly qualified under the Trust Indenture Act. The
related Certificates are intended to represent undivided ownership interests in the Trust
created by the Trust Agreement, which will be substantially in the form filed as an exhibit
to the Registration Statement, and will be entitled to the benefits provided by the Trust
Agreement. At the Time of Delivery (as defined in Section 4 hereof) for the Designated
Securities, the Indenture and the Trust Agreement will each constitute a valid and legally
binding instrument, enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity principles. The Indenture and Trust
Agreement conform, and the Designated Securities and the related Certificates will conform,
to the descriptions thereof contained in the Prospectus as amended or supplemented and the
Pre-Pricing Disclosure Package with respect to the Designated Securities;
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(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, any Pricing Agreement and the Initial FWP Side Letter,
and the consummation of the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or SLM ECFC is a party or by which the Company or SLM
ECFC is bound or to which any of the property or assets of the Company or SLM ECFC 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, SLM ECFC’s
Certificate of Incorporation or By-laws, or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company or SLM ECFC or
any of their properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Company or SLM ECFC 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;
(i) The statements set forth in the Prospectus under the captions “Description of the
Notes” and “Description of the Certificates,” the statements set forth in the Initial FWP
under the caption “Description of the Notes” read together with the statements in the Term
Sheet under the caption “The Notes” insofar as they purport to constitute a summary of the
terms of the Notes and the Certificates (other than in the case of the Initial FWP and Term
Sheet, certain pricing information), are accurate, complete and fair;
(j) SLM ECFC is not in violation of its Certificate of Incorporation or By-laws, and
the Company is not in violation of its Certificate of Formation or Limited Liability Company
Operating Agreement, and neither SLM ECFC 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, Quarterly Report on Form 10-Q or Current Report on Form 8-K, in
each case, on or prior to the date of this Agreement, filed with the Commission, as
applicable, there are no legal or governmental proceedings pending to which the Company or
SLM ECFC or any of its subsidiaries is a party or of which any property of the SLM ECFC or
any of its subsidiaries is the subject which, if determined
7
adversely to the Company or SLM
ECFC or any of its subsidiaries would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial position, shareholders’
equity or results of operations of SLM ECFC 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 SLM ECFC’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 and
the Company, acting in its capacity as the Depositor of the Trust, is not an “ineligible
issuer” within the meaning of Rule 405 under the Act as of the date hereof or as of the time
set forth in Rule 164(h)(2) of the Act;
(m) Neither the Company, SLM ECFC nor any of their affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within the meaning of
Section 517.075, Florida Statutes;
(n) PricewaterhouseCoopers LLP are independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder;
(o) At the Time of Delivery of the Designated Securities, SLM ECFC’s representations
and warranties in 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, VG Funding’s representations and warranties in the Purchase
Agreement to which it is a party will be true and correct in all material respects and the
Servicer’s representations and warranties in the Servicing Agreement will be true and
correct in all material respects; and
(p) In the event any of the Securities are purchased pursuant to Delayed Delivery
Contracts, each of such Delayed Delivery Contracts has been duly authorized by the Company
and SLM ECFC 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 and the Pre-Pricing Disclosure Package.
8
The Company may specify in Schedule II to the Pricing Agreement applicable to any Designated
Securities that the Underwriters are authorized to solicit offers to purchase Designated Securities
from the Company pursuant to delayed delivery contracts (herein called “Delayed Delivery
Contracts”), substantially in the form of Annex III attached hereto but with such changes therein
as the Representatives and the Company may authorize or approve. If so specified, the Underwriters
will endeavor to make such arrangements, and as compensation therefor the Company will pay to the
Representatives, for the accounts of the Underwriters, at the Time of Delivery, such commission, if
any, as may be set forth in such Pricing Agreement. Delayed Delivery Contracts, if any, are to be
with investors of the types described in the Prospectus and subject to other conditions therein set
forth. The Underwriters will not have any responsibility with respect to the validity or
performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from the principal amount of
Designated Securities to be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Securities shall be, in each case, the principal amount of
Contract Securities which the Company has been advised by the Representatives have been attributed
to such Underwriter, provided that, if the Company has not been so advised, the amount of Contract
Securities to be so deducted shall be, in each case, that proportion of Contract Securities which
the principal amount of Designated Securities to be purchased by such Underwriter under such
Pricing Agreement bears to the total principal amount of the Designated Securities (rounded as the
Representatives may determine). The total principal amount of Underwriters’ Securities to be
purchased by all the Underwriters pursuant to such Pricing Agreement shall be the total principal
amount of Designated Securities set forth in Schedule I to such Pricing Agreement less the
principal amount of the Contract Securities. The Company will deliver to the Representatives not
later than 3:30 p.m., New York City time, on the third business day preceding the Time of Delivery
specified in the applicable Pricing Agreement (or such other time and date as the Representatives
and the Company may agree upon in writing), a written notice setting forth the principal amount of
Contract Securities.
4. Underwriters’ Securities to be purchased by each Underwriter pursuant to the Pricing
Agreement relating thereto, in the form specified in such Pricing Agreement, and in such authorized
denominations and registered in such names as the Representatives may request upon at least
forty-eight hours’ prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by such Underwriter or
on its behalf of the purchase price therefor by wire transfer or by certified or official bank
check or checks, payable to the order of the Company in the funds specified in such Pricing
Agreement, all in the manner and at the place and time and date specified in such Pricing Agreement
or at such other place and time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the “Time of Delivery” for such Securities.
Concurrently with the delivery of and payment for the Underwriters’ Securities, the Company
will deliver to the Representatives for the accounts of the Underwriters a check payable to the
order of the party designated in the Pricing Agreement relating to such
9
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 SLM ECFC
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 or to the Pre-Pricing
Disclosure Package after the date of the Pricing Agreement relating to such Designated
Securities and prior to the Time of Delivery for such Designated Securities, in the event
such amendment or supplement is disapproved by the Representatives for such Designated
Securities promptly after reasonable notice thereof; to advise the Representatives promptly
of any such amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such Designated
Securities, and during such same period to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any prospectus relating to the
Designated Securities, of the suspension of the qualification of such Designated Securities
for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and, in the event
of the issuance of any such stop order or of any such order preventing or suspending the use
of any prospectus relating to the Designated Securities or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the Representatives may
reasonably request to qualify the Designated Securities for offering and sale under the
securities laws of such jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of such
Designated Securities, provided that in connection therewith the Company shall not be
10
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 prepare and furnish to the Underwriters copies of the Pre-Pricing Disclosure
Package, and to prepare and furnish without charge to each Underwriter and to any dealer in
the Designated Securities as many copies as the Underwriters may from time to time
reasonably request of any amendment or supplement to the Initial FWP and/or Term Sheet,
which corrects an untrue statement or omission of material fact in the Initial FWP and/or
Term Sheet;
(e) 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
(f) 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 and Term
Sheet.
6. (a) The Company and SLM ECFC covenant and agree with the several Underwriters that the
Company or SLM ECFC will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company’s and SLM ECFC’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 Pre-Pricing Disclosure Package and any amendments and supplements thereto relating to the
11
Designated Securities 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, the
Initial FWP Side Letter, 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 their obligations hereunder and under any Delayed Delivery Contracts
that are not otherwise specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 9 and 12 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.
(b) Each of the Company, SLM ECFC and SLM Corporation acknowledges and agrees that the
purchase and sale of the Designated Securities pursuant to this Agreement, including the
determination of the initial public offering price of the Designated Securities and any related
discounts and commissions, is an arm’s-length commercial transaction between the Company, on the
one hand, and the Underwriters, on the other. In connection therewith and with the process leading
to such transaction, each of the Company, SLM ECFC and SLM Corporation acknowledges and agrees that
each Underwriter is acting solely as a principal and not as the agent or fiduciary or in any other
position of higher trust of the Company and that no Underwriter has assumed (i) a fiduciary
responsibility in favor of the Trust specified in the applicable Pricing Agreement with respect to
the offering and sale of the Designated Securities contemplated hereby or (ii) any other obligation
to any of the Company, SLM ECFC and SLM Corporation except for the obligations expressly set forth
in this Agreement. Each of the Company, SLM ECFC and SLM Corporation covenants and agrees that it
will not claim that any Underwriter owes a fiduciary or other similar duty to the Trust specified
in the applicable Pricing Agreement in connection with the offering and sale of the Designated
Securities contemplated hereby or the process leading thereto. Each Underwriter covenants and
agrees that it has disclosed to the Company, SLM ECFC and SLM Corporation any conflicts of interest
that would materially impact the arm’s-length commercial nature of the purchase and sale of the
Designated Securities including the determination of the initial public offering price of the
Designated Securities and any related discounts and commissions.
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7. (a) Other than the Prospectus and the Prospectus Supplement for the Designated Securities
that will be filed with the Commission pursuant to Rule 424(b) under the Act (together, the “Final
Prospectus), the Initial FWP and the Term Sheet (collectively, the “Disclosure Materials”) no
Underwriter shall, without the Company’s prior written approval, convey or deliver any other
written material of any kind relating to any “issuer information” as defined in Rule 433(h)(2)
under the Act to any potential investor in the Designated Securities that would constitute (i) a
prospectus satisfying the requirements of Rule 430B under the Act, (ii) a “free writing
prospectus,” as defined in Rule 405 under the Act (a “Free Writing Prospectus”), or (iii) any “ABS
informational and computational material,” as defined in Item 1101(a) of Regulation AB under the
Act (“ABS Informational and Computational Material”), in reliance upon Rules 167 and 426 under the
Act (clauses (i), (ii) and (iii) collectively referred to herein as, “Prohibited Materials”);
provided, however, that you may convey to one or more of your Potential Investors a free writing
prospectus, as defined in Rule 405 under the Act, containing only: (i) information permitted in
Rule 134 under the Act and previously included in the Pre-Pricing Disclosure Package, (ii) a column
or other entry showing the status of the subscriptions for each class of the Securities (both for
the issuance as a whole and for each underwriter’s specific retention), (iii) expected pricing
parameters of the Securities, (iv) weighted averages lives of any class of Securities, and (v)
expected maturities of any class of Securities, in the case of clauses (i) through (v) as such
information is posted on a Bloomberg screen and, in the case of clauses (ii) through (v) such free
writing prospectus shall not contain information that would require the issuer to file such free
writing prospectus pursuant to Rule 433 under the Act.
(b) Each Underwriter represents and warrants that it has not conveyed the Initial FWP to any
potential investor prior to the Initial FWP First Use Date, or conveyed the Term Sheet to any
potential investor prior to the Term Sheet First Use Date.
(c) Each Underwriter covenants with the Company and SLM ECFC that it has conveyed the
Pre-Pricing Disclosure Package to each investor to which it has sold the Designated Securities in
paper form, by facsimile, or electronically in Adobe Acrobat PDF format reasonably promptly after
receipt by such Underwriter of the Pre-Pricing Disclosure Package from the Company and prior to the
time of each contract of sale for the Designated Securities.
(d) Each Underwriter represents and warrants to the Company and SLM ECFC that in connection
with its use of the Pre-Pricing Disclosure Package, it has complied with all requirements of the
rules and regulations of the Commission with regard to Free Writing Prospectuses.
(e) The Company agrees, and SLM ECFC agrees that it has caused the Company, to file with the
Commission the following:
(i) The Initial FWP and Term Sheet, each of which constitutes an “issuer free writing
prospectus,” as defined in Rule 433(h) under the Act; and
(ii) Any other Free Writing Prospectus that the Company provided, authorized or approved, and
which the Representatives shall not have disapproved.
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(f) The Initial FWP and any other Free Writing Prospectus required to be filed pursuant to
Section 7(e) hereof by the Company have been or shall be filed with the Commission not later than
the applicable time specified in the Act, if required, and will comply with all applicable
requirements of the rules and regulations of the Commission with regard to Free Writing
Prospectuses applicable to it.
(g) Notwithstanding the provisions of Sections 7(e) and (f) hereof, the Company shall not be
required to file any Free Writing Prospectus that does not contain substantive changes from or
additions to the Pre-Pricing Disclosure Package or any other Free Writing Prospectus previously
filed with the Commission.
(h) The Company and each Underwriter agree to retain all Free Writing Prospectuses that they
have used and that are not required to be filed pursuant to this Section 7 for a period of three
(3) years following the initial bona fide offering of the Designated Securities.
(i) (i) In the event that an Underwriter determines that, as of the date on which an investor
entered into an agreement to purchase any Designated Securities, the Initial FWP and/or the Term
Sheet delivered to such investor contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading (such Free Writing Prospectus, a
“Defective Free Writing Prospectus”), such Underwriter shall notify the Company thereof as promptly
as practicable after such determination.
(ii) Upon receipt by the Company of notification of a Defective Free Writing Prospectus, or if
the Company becomes aware of the use of a Defective Free Writing Prospectus, the Company shall
prepare a Free Writing Prospectus which corrects the material misstatement or omission in the
Defective Free Writing Prospectus (such corrected Free Writing Prospectus, a “Corrected Free
Writing Prospectus);
(iii) Upon receipt by an Underwriter of a Corrected Free Writing Prospectus, each Underwriter
shall use reasonable efforts thereafter to provide the investor with adequate disclosure of its
contractual arrangement and its rights under that contract at the time, to provide such investor
with adequate disclosure of the information which would correct such statement or omission, to
provide such investor with a meaningful ability to terminate the prior contract and to elect to
enter into or not enter into a new contract, and to enter into a new contract of sale with such
investor; it being understood and agreed that any corrective disclosure shall be provided by the
Company, in writing, to you as promptly as practicable and it also being understood and agreed that
any corrective disclosure shall be provided by the Company, in writing, to each Underwriter as
promptly as practicable.
(j) Notwithstanding any other provision herein, the Underwriters, SLM ECFC and the Company
each agree to pay all costs and expenses of the other party including, without limitation, legal
fees and expenses, incurred in connection with any successful action by one party or parties
against another party or parties to enforce any of its rights set forth in this Section 7.
(k) Each Underwriter covenants with the Company that:
14
(i) it will maintain written or electronic records (the “Conveyed Information Records”) of the
time and manner that any Disclosure Materials were conveyed to the investor at or prior to the Time
of Sale (the “Conveyed Information”), all within the meaning of Rule 159 under the Act, for a
period of at least three (3) years after the Time of Sale; and
(ii) in the event of any litigation, threatened litigation or other dispute involving the
Designated Securities, the Company will have the right to review and copy the Conveyed Information
Records during normal business hours upon reasonable prior notice; provided that, in the
alternative and at your option, copies of all such Conveyed Information Records may be sent to the
Company, accompanied by an officer’s certificate certifying that such materials are a true and
complete record of the relevant matter;
(l) Each Underwriter covenants with the Company that during the Prospectus delivery period set
forth in the Act, the Underwriter shall, if requested by, a prospective investor, convey to such
investor the Final Prospectus in accordance with the Act.
8. The obligations of the Underwriters of any Designated Securities under the Pricing
Agreement relating to such Designated Securities shall be subject, in the reasonable discretion of
the Representatives, to the condition that all representations and warranties and other statements
of the Company and SLM ECFC in or incorporated by reference in the Pricing Agreement relating to
such Designated Securities are, at and as of the Time of Delivery for such Designated Securities,
true and correct, the condition that the Company and SLM ECFC 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;
(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, SLM Corporation, SLM ECFC, VG
Funding 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;
15
(d) Special counsel for the Company, the Administrator, SLM Corporation, SLM ECFC, VG
Funding 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, Initial FWP or Term Sheet relating to such
Designated Securities was distributed and on the date of the Pricing Agreement for such
Designated Securities, the independent public accountants of the Company and SLM ECFC shall
have furnished to the Representatives a letter or letters with respect to the Company, SLM
ECFC, the statistical and financial information contained in the Preliminary Prospectus,
Initial FWP, or Term Sheet 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 SLM ECFC or any of its subsidiaries, taken as a whole, nor the Company
shall have sustained (i) 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; and, (ii) there shall not have
been (A) any material adverse change in the capital stock or long-term debt of SLM ECFC 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 SLM ECFC 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 in SLM Corporation’s most recent Annual Report on Form 10-K or Quarterly Report
on Form 10-Q or any Current Report on Form 8-K filed with the Commission, 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
16
Underwriters’ Securities on the terms and in the manner contemplated in the Prospectus
as first amended or supplemented relating to the Designated Securities and in the
Pre-Pricing Disclosure Package;
(i) On or after the date of the Pricing Agreement relating to the Designated
Securities, there shall not have occurred any of the following: (1) 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; (2) a general moratorium on commercial
banking activities declared by either Federal or New York State authorities; or (3) 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 (3) 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 or in the Pre-Pricing
Disclosure Package;
(j) Each of the Company and SLM ECFC shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated Securities a certificate or
certificates of officers of the Company or SLM ECFC, as the case may be, satisfactory to the
Representatives as to the accuracy of the representations and warranties of the Company or
SLM ECFC, as the case may be, herein at and as of such Time of Delivery, as to the
performance by the Company or SLM ECFC, as the case may be, of all of their obligations
hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a), (h) and (i) of this Section and as to such other matters as the
Representatives may reasonably request;
(k) At the Time of Delivery, the aggregate principal amount of the Underwriters’
Securities as specified in the related Pricing Agreement for the Designated Securities shall
have been sold 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
(l) The Designated Securities shall be rated as set forth in the related Prospectus and
in the Pre-Pricing Disclosure Package by the Rating Agency (or Agencies) specified in such
Prospectus and in the Pre-Pricing Disclosure Package, and such Rating Agency or Agencies
shall not have placed the Designated Securities under surveillance or review with negative
implications.
9. (a) (i) The Company, SLM ECFC and SLM Corporation, jointly and severally, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact contained in (i) any
Preliminary Prospectus, any preliminary prospectus supplement, the
17
Registration Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Designated Securities, or any amendment or supplement thereto (including any static
pool data referenced therein), 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 or (ii) the Pre-Pricing Disclosure Package as filed with the Commission in
accordance with Section 7(f) hereof, or any Corrected Free-Writing Prospectus, or the omission or
alleged omission to state a material fact required to make the statements therein, in light of the
circumstances under which they were made, not misleading, which was not corrected by information
subsequently supplied by the Company to the Underwriters reasonably prior to the sale to the
applicable investor of the Designated Securities, which sale results in the loss, claim, damage or
liability arising out of or based upon such misstatement or omission, 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, SLM ECFC and SLM Corporation shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company, SLM ECFC or SLM Corporation by
any Underwriter of Designated Securities through the Representatives expressly for use therein.
(ii) The Company, SLM ECFC and SLM Corporation, jointly and severally, will indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon
failure of the Company, in its capacity as the depositor of the Trust, to maintain its status as an
eligible issuer within the meaning of Rule 405 under the Act as of the date hereof or as of the
time set forth in Rule 164(h)(2) of the Act. or its failure to file, pursuant to Rule 433 under the
Act, the Initial FWP with the Commission no later than the Initial FWP First Use Date, and the Term
Sheet with the Commission no later than the Term Sheet First Use Date, 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.
(b) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Company,
SLM ECFC and SLM Corporation 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 (i) 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 or (ii) the
Pre-Pricing Disclosure Package or any Corrected Free-Writing Prospectus, or arise out of or are
based upon the omission or alleged omission to
18
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 therein in
reliance upon and in conformity with written information furnished to the Company or SLM ECFC by
such Underwriter through the Representatives expressly for use therein; and will reimburse the
Company, SLM ECFC or SLM Corporation, as applicable, for any legal or other expenses reasonably
incurred by the Company, SLM ECFC or SLM Corporation 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 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company and SLM ECFC,
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
19
amount paid or payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Company and SLM ECFC, on
the one hand and the Underwriters of the Designated Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by the Company and SLM ECFC, on the one hand, and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company and SLM ECFC bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company or SLM ECFC, on the one hand, or such Underwriters on the other and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission. The Company, SLM ECFC, SLM Corporation and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations referred to above
in this subsection (d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the applicable
Designated Securities underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute
are several in proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company, SLM ECFC and SLM Corporation under this Section 9 shall be
in addition to any liability which the Company, SLM ECFC and SLM Corporation may otherwise have,
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 shall
remain of full force and effect notwithstanding any claim of one party against another under
Section 7 hereof or under the Initial FWP Side Letter. The obligations of the Underwriters under
this Section 9 shall be in addition to any liability which the respective Underwriters may
otherwise have, shall extend, upon the same terms and conditions, to each officer and director of
the Company, SLM ECFC or SLM Corporation and to each person, if any, who controls the Company, SLM
ECFC or SLM Corporation within the meaning of the Act and shall remain of full force and effect
notwithstanding any claim of one party against another under Section 7 hereof or under the Initial
FWP Side Letter.
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10. (a) If any Underwriter shall default in its obligation to purchase the Underwriters’
Securities which it has agreed to purchase under the Pricing Agreement relating to such
Underwriters’ Securities, the Representatives may in their discretion arrange for themselves or
another party or other parties to purchase such Underwriters’ Securities on the terms contained
herein and therein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Underwriters’ Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Underwriters’ Securities on such
terms. In the event that, within the respective prescribed period, the Representatives notify the
Company that they have so arranged for the purchase of such Underwriters’ Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of such Underwriters’
Securities, the Representatives or the Company shall have the right to postpone the Time of
Delivery for such Underwriters’ Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration Statement or the
Prospectus as amended or supplemented, or in any other documents or arrangements (including the
Pre-Pricing Disclosure Package), and the Company agrees to file promptly any amendments or
supplements to the Registration Statement, the Prospectus or such Free Writing 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 10 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
21
which remains unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the Company shall not exercise
the right described in subsection (b) above to require non-defaulting Underwriters to purchase
Underwriters’ Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement
relating to such Designated Securities shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements
in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for
its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and SLM ECFC and the several Underwriters and, to the extent provided in Xxxxxxx 0,
XXX Corporation, as set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the Company, SLM ECFC or SLM Corporation or any officer
or director or controlling person of the Company, SLM ECFC or SLM Corporation, and shall survive
delivery of and payment for the Securities.
12. If any Pricing Agreement shall be terminated pursuant to Section 10 or Section 8(i)
hereof, the Company, SLM ECFC and SLM Corporation 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 Section 9 hereof and in Section 6 hereof with respect to the Company and SLM ECFC; but,
if for any other reason Underwriters’ Securities are not delivered by or on behalf of the Company
as provided herein, the Company and SLM ECFC 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,
SLM ECFC and SLM Corporation shall then be under no further liability to any Underwriter with
respect to such Designated Securities except as provided in Sections 6 and 9 hereof.
13. 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, SLM ECFC or SLM
Corporation shall be delivered or sent by mail, telex or facsimile transmission to:
22
SLM Funding LLC
00000 Xxxxxxxx Xxx
X0000
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Vice President
00000 Xxxxxxxx Xxx
X0000
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Vice President
SLM Education Credit Finance Corporation
00 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Vice President
00 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Vice President
SLM Corporation
00000 Xxxxxxxx Xxx
X0000
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: J. Xxxxx Xxxxxx, Senior Vice President
00000 Xxxxxxxx Xxx
X0000
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: J. Xxxxx Xxxxxx, Senior Vice President
provided, however, that any notice to an Underwriter pursuant to Section 9(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set
forth in the related Pricing Agreement. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
14. This Agreement and each Pricing Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and SLM ECFC and, to the extent provided in Sections
6(b), 9, 11 and 12 hereof, SLM Corporation, the officers and directors of the Company, SLM ECFC and
SLM Corporation and each person who controls the Company, SLM ECFC, SLM Corporation 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.
15. 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.
16. This Agreement and each Pricing Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
17. 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.
23
If the foregoing is in accordance with your understanding, please sign and return to us ten
counterparts hereof.
Very truly yours, SLM Funding LLC By /S/ XXXX X. XXXXXX Name: Xxxx X. Xxxxxx Title: Vice President |
||||
SLM Education Credit Finance Corporation |
||||
By: | /S/ XXXX X. XXXXXX | |||
Name: | Xxxx X. Xxxxxx | |||
Title: | Vice President | |||
Accepted and agreed with respect to Sections 6(b), 9, 11,
12 and 14 of this Agreement:
12 and 14 of this Agreement:
SLM Corporation |
||||
By: | /S/ J. XXXXX XXXXXX | |||
Name: | J. Xxxxx Xxxxxx | |||
Title: | Senior Vice President |
Accepted as of the date hereof:
BANC OF AMERICA SECURITIES LLC
By: /S/ XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: Principal
Name: Xxxxxxx X. Xxxxx
Title: Principal
XXXXXX BROTHERS INC.
By: /S/ XXXXXX XXXXXXX
Name: Xxxxxx Xxxxxxx
Title: Managing Director
Name: Xxxxxx Xxxxxxx
Title: Managing Director
As Representatives of the several
Underwriters named in Schedule I hereto
Underwriters named in Schedule I hereto
ANNEX I
Pricing Agreement
______________________
As Representatives of the several
Underwriters named on Schedule I hereto,
Underwriters named on Schedule I hereto,
c/o
______________________
______________________
______________________
______________________
, 200_
Ladies and Gentlemen:
SLM Funding LLC, a Delaware limited liability company (the “Company”), and SLM Education
Credit Finance Corporation, a Delaware corporation (“SLM ECFC”), propose, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated , 200 (the
“Underwriting Agreement”), between the Company, SLM ECFC and SLM Corporation, 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 13 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 13 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 SLM ECFC
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 Xxx 0000 (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, SLM ECFC and SLM Corporation. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
2
pursuant to the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company, SLM ECFC and SLM Corporation 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: | ||||
SLM Education Credit Finance Corporation |
||||
By: | ||||
Name: | ||||
Title: | ||||
Accepted and agreed with respect to Sections 9, 11, 13 and
14 of the Underwriting Agreement:
14 of the Underwriting Agreement:
SLM Corporation |
||||
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.:
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 2006-2]
ANNEX II(b)
The Company, SLM ECFC and the Servicer: Internal Counsel Opinion
[Opinion to be issued, which will be substantially in the form provided for
SLM Student Loan Trust 2006-2]
ANNEX II(c)
The Company, SLM ECFC and the Servicer: Outside Counsel Opinion
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2006-2]
ANNEX II(d)
Eligible Lender Trustee: Counsel Opinion
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2006-2]
ANNEX II(e)
Indenture Trustee: Counsel Opinion
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2006-2]
ANNEX III
DELAYED DELIVERY CONTRACT
SLM Funding LLC
c/o
Attention: ,
20___
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: |