EXHIBIT 1.1
SLC Student Loan Trust 2005-3
$1,238,600,000
Student Loan Asset-Backed Notes
UNDERWRITING AGREEMENT
December 8, 2005
Citigroup Global Markets Inc.,
as representative of the Underwriters
listed on Schedule A hereto
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
SLC Student Loan Trust 2005-3, a Delaware statutory trust (the "Company"),
proposes to sell to Citigroup Global Markets Inc. (the "Representative") and the
other underwriters listed on Schedule A hereto (collectively with the
Representative, the "Underwriters"), pursuant to the terms of this Underwriting
Agreement (the "Agreement"), $1,238,600,000 aggregate principal amount of its
Student Loan Asset-Backed Notes (the "Notes") in the classes and initial
principal amounts set forth on Schedule A hereto. Citibank, N.A., a national
banking association, will act as eligible lender trustee (in such capacity, the
"Eligible Lender Trustee") on behalf of the Company. The Notes will be issued
under an Indenture, to be dated as of December 15, 2005 (the "Indenture"), among
the Company, the Eligible Lender Trustee, Wachovia Bank, National Association,
as indenture trustee (the "Indenture Trustee"), and Citibank, N.A., as indenture
administrator (in such capacity, the "Indenture Administrator"). Upon issuance,
the Notes will be secured by, among other things, Trust Student Loans (as
defined in the Indenture) pledged to the Indenture Trustee and described in the
Prospectus (as defined in Section 3 below). The Trust Student Loans will be
serviced by The Student Loan Corporation, a Delaware corporation ("SLC"),
pursuant to a Servicing Agreement, to be dated as of December 15, 2005 (the
"Servicing Agreement"), between SLC, as Servicer and Administrator, and the
Company. SLC will enter into a Subservicing Agreement with Citibank USA,
National Association, a national banking association (the "Sub-Servicer"), to be
dated as of December 15, 2005 (the "Subservicing Agreement"), pursuant to which
the Sub-Servicer will act as subservicer with respect to the Trust Student
Loans.
This Agreement, the Master Terms Purchase Agreement, to be dated as of
December 15, 2005 (along with the related Purchase Agreement, the "SLC Sale
Agreement"), among SLC, SLC Student Loan Receivables I, Inc. ("SLC Receivables")
and the Eligible Lender Trustee, the Master Terms Sale Agreement, to be dated as
of December 15, 2005 (along with the related Sale Agreement, the "SLC
Receivables Sale Agreement" and, collectively with the SLC Sale Agreement, the
"Sale Agreements"), among SLC Receivables, the Company and the Eligible Lender
Trustee, the Short-Form Trust Agreement, dated as of November 28, 2005, between
Wilmington Trust Company, as owner trustee (the "Owner Trustee"), and SLC
Receivables, as depositor (in such capacity, the "Depositor"), as amended and
restated pursuant to the Amended and Restated Trust Agreement, to be dated as of
December 15, 2005 (the "Trust Agreement"), between the Owner Trustee and the
Depositor, the Administration Agreement, to be dated as of December 15, 2005
(the "Administration Agreement"), between SLC, as servicer and administrator,
and the Company, the Eligible Lender Trust Agreement, to be dated as of December
15, 2005 (the "SLC Receivables Eligible Lender Trust Agreement"), between SLC
Receivables and the Eligible Lender Trustee, the Eligible Lender Trust
Agreement, to be dated as of December 15, 2005 (the "Company Eligible Lender
Trust Agreement" and, collectively with the SLC Receivables Eligible Lender
Trust Agreement, the "Eligible Lender Trust Agreement"), between the Company and
the Eligible Lender Trustee, the Subadministration Agreement, to be dated as of
December 15, 2005 (the "Subadministration Agreement"), between SLC, as
administrator, and CitiMortgage, Inc., as sub-administrator (the
"Sub-Administrator"), the Servicing Agreement, the Subservicing Agreement, and
the Indenture shall collectively hereinafter be referred to as the "Basic
Documents".
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Indenture or the Prospectus.
The Company proposes, upon the terms and conditions set forth herein, to
sell to each of the Underwriters on the Closing Date (as hereinafter defined)
the aggregate principal amount of each class of Notes set forth next to the name
of each Underwriter on Schedule A hereto.
The Company wishes to confirm as follows this Agreement with the
Underwriters in connection with the purchase and resale of the Notes.
1. Agreements to Sell, Purchase and Resell. (a) The Company hereby
agrees, subject to all the terms and conditions set forth herein, to sell to
each of the Underwriters and, upon the basis of the representations, warranties
and agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each of the Underwriters, severally and not
jointly, agrees to purchase from the Company, such principal amount of each
class of the Notes at such respective purchase prices as are set forth next to
the name of such Underwriter on Schedule A hereto.
(b) 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.
2. Delivery of the Notes and Payment Therefor. Delivery to the
Underwriters of and payment for the Notes shall be made at the office of
Cadwalader Xxxxxxxxxx & Xxxx LLP, New York, New York, at 12:00 p.m., New York
time, on December 15, 2005 (the "Closing Date"). The place of such closing and
the Closing Date may be varied by agreement between the Representative and the
Company.
The Notes will be delivered to the Underwriters against payment of the
purchase price therefor to the Company in Federal Funds, by wire transfer to an
account at a bank acceptable to the Representative, or such other form of
payment as to which the parties may agree. Unless otherwise agreed to by the
Company and the Representative, each class of Notes will be evidenced by a
single global security in definitive form deposited with the Indenture Trustee
as custodian for The Depository Trust Company ("DTC") and will be registered in
the name of Cede & Co. as nominee of DTC. The Notes to be delivered to the
Underwriters shall be made available to the Underwriters in New York, New York,
for inspection and packaging not later than 11:30 a.m., New York City time, on
the business day next preceding the Closing Date.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) The registration statement on Form S-3 (No. 333-127510)
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 "Act"), has been filed with the Securities and Exchange Commission (the
"SEC" or the "Commission") and such registration statement, as amended, has
become effective; such registration statement, as amended, and the prospectus
relating to the sale of the Notes offered thereby constituting a part thereof,
as from time to time amended or supplemented (including the base prospectus, any
prospectus supplement filed with the Commission pursuant to Rule 424(b) under
the Act, including any preliminary prospectus, the information deemed to be a
part thereof pursuant to Rule 430A(b) under the Act, and the information
incorporated by reference therein) are respectively referred to herein as the
"Registration Statement," the "Prospectus," and the "Prospectus Supplement,"
respectively; and the conditions to the use of a registration statement on Form
S-3 under the Act, as set forth in the General Instructions to Form S-3, and the
conditions of Rule 415 under the Act, have been satisfied with respect to the
Registration Statement;
(b) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all material respects to
the requirements of the Act, the rules and regulations of the SEC (the "Rules
and Regulations") and the Trust Indenture Act of 1939, as amended, and the rules
and regulations thereunder (the "Trust Indenture Act"), and, except with respect
to information omitted pursuant to Rule 430A of the Act, did not include any
untrue statement of a material fact or, in the case of the Registration
Statement, omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and, in the case of the
Prospectus, omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and on the date of this Agreement, at the "time of sale" (within the
meaning of Rule 159 under the Act) of the first sale of the Notes by the
Underwriters on or after December 1, 2005 (the date of the preliminary
prospectus referred to in Section 3(q) below) and on the Closing Date, the
Registration Statement and the Prospectus will conform in all material respects
to the requirements of the Act, the Rules and Regulations and the Trust
Indenture Act, and neither of such documents included or will include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the foregoing does not apply to statements in or
omissions from the Registration Statement or the Prospectus based upon written
information furnished to the Company by the Underwriters, specifically for use
therein.
(c) The Commission has not issued and, to the best knowledge
of the Company, is not threatening to issue any order preventing or suspending
the use of the Registration Statement.
(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 Company or its affiliates
for the consummation of the transactions contemplated by this Agreement shall
have been obtained, except as otherwise provided in the Basic Documents.
(e) The Indenture has been duly and validly authorized by the
Company and, upon its execution and delivery by the Company and assuming due
authorization, execution and delivery by the Indenture Trustee, will be a valid
and binding agreement of the Company, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights generally and conform in all material
respects to the description thereof in the Prospectus. The Indenture has been
duly qualified under the Trust Indenture Act with respect to the Notes.
(f) The Notes have been duly authorized by the Company and the
Notes to be issued on the Closing Date, when executed by the Company and
authenticated by the Indenture Trustee in accordance with the Indenture, and
delivered to the Underwriters against payment therefor in accordance with the
terms hereof, will have been validly issued and delivered, and will constitute
valid and binding obligations of the Company 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, fraudulent
conveyance or other similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto, and the Notes will conform
in all material respects to the description thereof in the Prospectus.
(g) The Company is a statutory trust duly organized, validly
existing and in good standing under the laws of the State of Delaware with full
power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and as conducted on the date hereof, and
is duly registered and qualified to conduct its business and is in good standing
in each jurisdiction or place where the nature of its properties or the conduct
of its business requires such registration or qualification, except where the
failure so to register or qualify does not have a material adverse effect on the
condition (financial or other), business, prospects, properties, net worth or
results of operations of the Company.
(h) 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 the Company or any of its affiliates any brokerage or
finder's fee or other fee or commission as a result of any of the transactions
contemplated by this Agreement.
(i) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened or contemplated against the Company,
or to which the Company or any of its properties is subject, that are not
disclosed in the Prospectus and which, if adversely decided, would individually
or in the aggregate have a material adverse effect on the condition (financial
or other), business, properties or results of operations of the Company, or
would materially and adversely affect the ability of the Company to perform its
obligations under this Agreement and the other Basic Documents or otherwise
materially affect the issuance of the Notes or the consummation of the
transactions contemplated hereby or by the Basic Documents ("Material Adverse
Effect").
(j) Neither the offer, sale or delivery of the Notes by the
Company nor the execution, delivery or performance of this Agreement or the
other Basic Documents by the Company, nor the consummation by the Company 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 securities 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 conflicts or will
conflict with or constitutes or will constitute a breach of, or a default under,
the organizational documents or bylaws of the Company or (ii) 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 the Company is a party or by which the Company or any of its
properties may be bound, or violates or will violate in any material respect any
statute, law, regulation or filing or judgment, injunction, order or decree
applicable to the Company or any of its properties, or will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to the terms of any agreement or instrument to
which it is a party or by which it may be bound or to which any of its
properties is subject other than as contemplated by the Basic Documents.
(k) The Company has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement and the other
Basic Documents to which it is a party; the execution and delivery of, and the
performance by the Company of its obligations under, this Agreement and the
other Basic Documents to which it is a party have been duly and validly
authorized by the Company and this Agreement and the other Basic Documents have
been duly executed and delivered by the Company and constitute the valid and
legally binding agreements of the Company, enforceable against the Company in
accordance with their respective terms, except as the enforcement hereof and
thereof may be limited by bankruptcy, insolvency, moratorium, fraudulent
conveyance or other similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto and subject to the
applicability of general principles of equity, and except as rights to indemnity
and contribution hereunder and thereunder may be limited by Federal or state
securities laws or principles of public policy.
(l) SLC's sale and contribution of Trust Student Loans to SLC
Receivables and SLC Receivables's sale and contribution of Trust Student Loans
to the Eligible Lender Trustee on behalf of the Company as of the applicable
sale date described in the Sale Agreements will vest in the Eligible Lender
Trustee on behalf of the Company all of the Company's right, title and interest
therein, subject to no prior lien, mortgage, security interest, pledge, adverse
claim, charge or other encumbrance.
(m) The Company's assignment of the Trust Student Loans to the
Indenture Trustee pursuant to the Indenture will vest in the Indenture Trustee,
for the benefit of the Noteholders, a first priority perfected security interest
therein, subject to no prior lien, mortgage, security interest, pledge, adverse
claim, charge or other encumbrance.
(n) The Company is not, nor as a result of the issuance and
sale of the Notes as contemplated hereunder will it become, subject to
registration as an "investment company" under the Investment Company Act of
1940, as amended (the "1940 Act").
(o) The representations and warranties made by the Company in
any Basic Document to which the Company is a party and made in any Officer's
Certificate of the Company will be true and correct at the time made and on and
as of the applicable Closing Date.
(p) The Company is not an "ineligible issuer" (within the
meaning of Rule 405 of the Act).
(q) The Company filed its preliminary prospectus, dated
December 1, 2005, relating to the Notes with the Commission pursuant to Rule
424(b) under the Act on December 6, 2005.
4. Agreements of the Company. The Company agrees with each of the
Underwriters as follows:
(a) The Company will prepare a supplement to the Prospectus
setting forth the amount of the Notes covered thereby and the terms thereof not
otherwise specified in the Prospectus, the price at which the Notes are to be
purchased by the Underwriters, either the initial public offering price or the
method by which the price at which the Notes are to be sold will be determined,
the selling concessions and reallowances, if any, and such other information as
the Underwriters and the Company deem appropriate in connection with the
offering of the Notes, and the Company will timely file such supplement to the
prospectus with the SEC pursuant to Rule 424(b) under the Act, but the Company
will not file any amendments to the Registration Statement as in effect with
respect to the Notes or any amendments or supplements to the Prospectus, or any
Free Writing Prospectus (as defined in Rule 405 under the Act), unless it shall
first have delivered copies of such amendments, supplements or Free Writing
Prospectus to the Underwriters, with reasonable opportunity to comment on such
proposed amendment or supplement, or if the Underwriters shall have reasonably
objected thereto promptly after receipt thereof; the Company will immediately
advise the Underwriters or the Underwriters' counsel (i) when notice is received
from the SEC that any post-effective amendment to the Registration Statement has
become or will become effective and (ii) of any order or communication
suspending or preventing, or threatening to suspend or prevent, the offer and
sale of the Notes or of any proceedings or examinations that may lead to such an
order or communication, whether by or of the SEC or any authority administering
any state securities or Blue Sky law, as soon as the Company is advised thereof,
and will use its best efforts to prevent the issuance of any such order or
communication and to obtain as soon as possible its lifting, if issued.
(b) If, at any time when the Prospectus relating to the Notes
is required to be delivered under the Act, any event occurs 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 a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or supplement
the Prospectus to comply with the Act or the Rules and Regulations, the Company
promptly will notify the Representative of such event and will promptly prepare
and file with the SEC, at its own expense, an amendment or supplement to such
Prospectus that will correct such statement or omission or an amendment that
will effect such compliance. Neither the Representative's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 7 hereof.
(c) The Company will immediately inform the Underwriters (i)
of the receipt by the Company of any communication from the SEC 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 the Company is a party
relating to the offering or sale of the Notes.
(d) The Company will furnish to the Underwriters, without
charge, copies of the Registration Statement (including 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) The Company will cooperate with the Underwriters in
listing the Class A Notes on the Irish Stock Exchange.
(f) The Company will cooperate with the Underwriters and with
their 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 under the securities or Blue Sky laws of such jurisdictions as
the Underwriters may designate and will file such consents to service of process
or other documents necessary or appropriate in order to effect such
qualification or exemptions; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now 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.
(g) The Company consents 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 furnished by the Company.
(h) To the extent, if any, that the rating or ratings provided
with respect to the Notes by the rating agency or agencies that initially rate
the Notes is conditional upon the furnishing of documents or the taking of any
other reasonable actions by the Company, the Company shall cause to be furnished
such documents and such other actions to be taken.
(i) So long as any of the Notes are outstanding, the Company
will furnish to the Underwriters (i) as soon as available, a copy of each
document relating to the Notes required to be filed with the SEC pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any order
of the SEC thereunder, and (ii) such other information concerning the Company as
the Underwriters may request from time to time.
(j) If this Agreement shall terminate or shall be terminated
after execution and delivery pursuant to any provisions hereof (otherwise than
by notice given by the Representative terminating this Agreement pursuant to
Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the
Representative because of any failure or refusal on the part of the Company to
comply with the terms or fulfill any of the conditions of this Agreement, the
Company agrees to reimburse the Underwriters for all out-of-pocket expenses
(including fees and expenses of their counsel) reasonably incurred by it in
connection herewith, but without any further obligation on the part of the
Company 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.
(l) Except as stated in this Agreement and in the Prospectus,
the Company has not taken, nor will it 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.
(m) For a period from the date of this Agreement until the
retirement of the Notes, the Company will deliver to you the annual statements
of compliance and the annual independent certified public accountants' reports
furnished to the Indenture Trustee or the Company pursuant to the Servicing
Agreement as soon as such statements and reports are furnished to the Indenture
Trustee or the Company.
(n) On or before the Closing Date, the Company shall xxxx its
accounting and other records, if any, relating to the Trust Student Loans and
shall cause the Servicer, SLC and SLC Receivables to xxxx their respective
computer records relating to the Trust Student Loans to show the absolute
ownership by the Indenture Trustee, as eligible lender of, and the interest of
the Company in, the initial Trust Student Loans, and the Company shall not take,
or shall not permit any other person to take, any action inconsistent with the
ownership of, and the interest of the Company in, the Trust Student Loans, other
than as permitted by the Basic Documents
(o) For the period beginning on the date of this Agreement and
ending 90 days hereafter, none of the Company and any entity affiliated,
directly or indirectly, with the Company will, without the prior written notice
to the Underwriters, offer to sell or sell notes (other than the Notes)
collateralized by FFELP Loans; provided, however, that this shall not be
construed to prevent the sale of FFELP Loans by the Company or any entity
affiliated, directly or indirectly, with the Company.
(p) If, at the time the Registration Statement became
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A under the 1933 Act, then, immediately following the execution of this
Agreement, the Company will prepare, and file or transmit for filing with the
Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act,
copies of an amended Prospectus containing all information so omitted.
(q) As soon as practicable, but not later than 16 months after
the date of this Agreement, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12 months
beginning after the later of (i) the effective date of the Registration
Statement, (ii) the effective date of the most recent post-effective amendment
to the Registration Statement to become effective prior to the date of this
Agreement and (iii) the date of the Company's most recent Annual Report or Form
10-K filed with the Commission prior to the date of this Agreement, which will
satisfy the provisions of Section 11(a) of the Act.
5. Representations and Warranties of the Underwriters. Each of the
Underwriters, severally and not jointly, hereby represents and warrants to and
agrees with SLC 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 business 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 1965, 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
(within the meaning of section 21 of the Financial Services Markets Act 2000
(the "FSMA")), received by it in connection with the issue or sale of the Notes
in circumstances in which section 21(1) of the FSMA does not apply to the
Company; 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.
6. Indemnification and Contribution. (a) Each of the Company and SLC
jointly and severally agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and expenses (or
actions in respect thereof) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Prospectus, or in any amendment or supplement thereto, or any
preliminary prospectus, 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 and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability, or action as such expenses are incurred, 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 an Underwriter furnished in writing
to the Company or SLC by or on behalf of such Underwriter through the
Representative expressly for use therein, it being understood that the only such
information furnished by any Underwriter consists of the information described
as such in Section 11 of this Agreement. The foregoing indemnity agreement shall
be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company and SLC and its respective trustees,
directors and officers, and any person who controls the Company or SLC within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the indemnity from the Company and SLC to the Underwriters set
forth in paragraph (a) hereof, but only (i) with respect to information relating
to such Underwriter furnished in writing by or on behalf of such Underwriter
through the Representative expressly for use in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus therein, it being understood that the only such information furnished
by any Underwriter consists of the information described as such in Section 11
of this Agreement and (ii) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Free Writing
Prospectus (as defined in Rule 405 under the Act) not constituting an "issuer
free writing prospectus" (as defined in Rule 433 (h)(1) under the Act) and used
by such indemnifying Underwriter, or arising out of or based upon any omission
or alleged omission to state therein a material fact necessary in order to make
the statements therein not misleading (except to the extent such untrue
statement or omission or alleged untrue statement or omission in such Free
Writing Prospectus (x) is based upon or results from errors, mistakes or
omissions in information provided by the Company or SLC to the Underwritings or
(y) is contained in the Prospectus, the Registration Statement or the
preliminary prospectus referred to in Section 3(q) above). The foregoing
indemnity agreement shall be in addition to any liability which the Underwriters
may otherwise have.
(c) If any action, suit or proceeding shall be brought against
any person in respect of which indemnity may be sought pursuant to Section 6(a)
or 6(b), such person (the "indemnified party") shall promptly notify the parties
against whom indemnification is being sought (the "indemnifying parties"), but
the omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party except to the extent that
the indemnifying party is materially prejudiced by such omission. In case any
such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may 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). The applicable Underwriter or any such controlling person 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 such 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, 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 there may be one
or more legal defenses available to it which are different from or additional to
or in conflict with those available to the indemnifying parties and in the
reasonable judgment of such counsel it is advisable for the Underwriter or such
controlling person to employ separate counsel (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 each Underwriter and controlling persons not having
actual or potential differing interests with such Underwriter or among
themselves, which firm shall be designated in writing by such Underwriter, and
that all such fees and expenses shall be reimbursed on a monthly basis as
provided in paragraph (a) hereof. An indemnifying party will not, without the
prior written consent of the indemnified party, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding 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 an indemnified party.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under paragraphs (a) or (b) 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
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 the
Company and SLC on the one hand and the applicable Underwriter 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 the Company and SLC on the one hand and the
applicable Underwriter 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 the Company and SLC on the one hand and an Underwriter 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 the
Company and SLC bear to the total underwriting discounts and commissions
received by such Underwriter. The relative fault of the Company and SLC 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 the Company and SLC on the one hand or by an
Underwriter on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(e) The Company, SLC and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 6 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 6, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total Underwriting discounts and commissions received by such Underwriter with
respect to the Notes underwritten by it exceed 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 Underwriters' obligations in this paragraph
(e) to contribute are several in proportion to their respective underwriting
obligation.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 6 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 6 and the
representations and warranties of the Company 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, the Company,
SLC 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, the Company,
SLC 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 6.
7. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters to purchase the Notes hereunder are subject to the following
conditions precedent:
(a) All actions required to be taken and all filings required
to be made by the Company under the 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 shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Underwriters, shall be contemplated by the
Commission.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development or event involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of the Company, SLC,
SLC Receivables, the Servicer or the Sub-Servicer not contemplated by the
Registration Statement, which in the opinion of the Representative, would
materially adversely affect the market for the Notes, (ii) any downgrading in
the rating of any debt securities of the Company, SLC, SLC Receivables, the
Servicer or the Sub-Servicer by any nationally recognized statistical rating
organization or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company, SLC,
SLC Receivables, the Servicer or the Sub-Servicer (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating), or (iii) any event or development which
makes any statement made in the Registration Statement or Prospectus untrue or
which, in the opinion of the Company 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
Representative, materially adversely affect the market for the Notes.
(c) You shall have received an opinion addressed to you of
Cadwalader, Xxxxxxxxxx & Xxxx LLP, or other counsel satisfactory to you, dated
the Closing Date, in form and substance satisfactory to you and your counsel
with respect to the status of the Company, to each of the Sale Agreements, the
Servicing Agreement, the Administration Agreement, the Company Eligible Lender
Trust Agreement, the Indenture, the Trust Agreement, and this Agreement and to
the validity of the Notes and such related matters as you shall reasonably
request. In addition, you shall have received an opinion addressed to you of
Cadwalader, Xxxxxxxxxx & Xxxx LLP, in its capacity as counsel for the Company,
in form and substance satisfactory to you and your counsel, concerning "true
sale," "non- consolidation" and "first perfected security interest" and certain
other issues with respect to the transfer of the Trust Student Loans from the
SLC to SLC Receivables, SLC Receivables to the Company and from the Company to
the Indenture Trustee.
(d) You shall have received an opinion addressed to you of
Cadwalader, Xxxxxxxxxx &Taft LLP, in its capacity as counsel for the Company,
dated the Closing Date, in form and substance satisfactory to you and your
counsel to the effect that the statements in the Prospectus under the headings
"U.S. Federal Income Tax Consequences" and "ERISA Considerations", to the extent
such statements summarize the material tax consequences and the material
consequences under ERISA, respectively, of the purchase, beneficial ownership
and disposition of the Notes to holders thereof described therein, are correct
in all material respects.
(e) You shall have received an opinion addressed to you of
Cadwalader, Xxxxxxxxxx &Taft LLP, in its capacity as counsel for the Company,
dated the Closing Date, in form and substance satisfactory to you and your
counsel with respect to the character of the Notes for federal tax purposes.
(f) You shall have received an opinion addressed to you of
Stroock & Stroock & Xxxxx LLP, in its capacity as Underwriters' Counsel, dated
the Closing Date, in form and substance satisfactory to you.
(g) You shall have received an opinion and disclosure letters
addressed to you of Cadwalader, Xxxxxxxxxx &Taft LLP, in its capacity as counsel
for the Company, dated the Closing Date in form and substance satisfactory to
you and your counsel with respect to the Prospectus (including the preliminary
prospectus) and the Registration Statement and certain matters arising under the
Trust Indenture Act and the 0000 Xxx.
(h) You shall have received opinions addressed to you of
Cadwalader, Xxxxxxxxxx &Taft LLP or other counsel satisfactory to you in their
capacity as counsel to SLC and SLC Receivables, each dated the Closing Date and
satisfactory in form and substance to you and your counsel.
(i) You shall have received an opinion addressed to you of
Xxxxxxxx, Xxxxxx & Finger, P.A., in its capacity as counsel to the Owner
Trustee, dated the Closing Date and in form and substance satisfactory to you
and your counsel.
(j) You shall have received an opinion addressed to you of
Thacher, Xxxxxxxx & Xxxx LLP, in its capacity as counsel to the Indenture
Trustee, dated the Closing Date and in form and substance satisfactory to you
and your counsel, to the effect that:
(i) The Indenture Trustee is a national banking association duly
organized and validly existing under the laws of the United States.
(ii) The Indenture Trustee has the full corporate trust power to
accept the office of indenture trustee under the Indenture and to enter
into and perform its obligations under the Indenture and each Guarantee
Agreement.
(iii) The execution and delivery of each of the Indenture and each
Guarantee Agreement, and the performance by the Indenture Trustee of its
obligations under the Indenture and each Guarantee Agreement, have been
duly authorized by all necessary action of the Indenture Trustee and each
has been duly executed and delivered by the Indenture Trustee.
(iv) The Indenture and each Guarantee Agreement constitute valid and
binding obligations of the Indenture Trustee enforceable against the
Indenture Trustee.
(v) The execution and delivery by the Indenture Trustee of the
Indenture and each Guarantee Agreement do not require any consent,
approval or authorization of, or any registration or filing with, any
state or United States Federal governmental authority.
(vi) Each of the Notes has been duly authenticated by the Indenture
Trustee.
(vii) Neither the consummation by the Indenture Trustee of the
transactions contemplated in the Indenture and each Guarantee Agreement
nor the fulfillment of the terms thereof by the Indenture Trustee will
conflict with, result in a breach or violation of, or constitute a default
under any law or the charter, by-laws or other organizational documents of
the Indenture Trustee or the terms of any indenture or other agreement or
instrument known to such counsel and to which the Indenture Trustee or any
of its subsidiaries is a party or is bound or any judgment, order or
decree known to such counsel to be applicable to the Indenture Trustee or
any of its subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Indenture Trustee or any of its subsidiaries.
(viii) The Eligible Lender Trustee is an "eligible lender" for
purposes of the FFELP Program in its capacity as Indenture Trustee with
respect to Trust Student Loans held under the Indenture.
(k) You shall have received an opinion addressed to you of
Thacher, Xxxxxxxx & Xxxx LLP, in its capacity as counsel for the Eligible Lender
Trustee and the Indenture Administrator, in form and substance satisfactory to
you.
(l) [Intentionally Omitted]
(m) You shall have received certificates addressed to you
dated the Closing Date of any two of the Chairman of the Board, the President,
any Executive Vice President, Senior Vice President or Vice President, the
Treasurer, any Assistant Treasurer, the principal financial officer or the
principal accounting officer of the Sub-Administrator in which such officers
shall state that, to the best of their knowledge after reasonable investigation,
(i) the representations and warranties of the Sub-Administrator contained in the
Subadministration Agreement are true and correct in all material respects, that
the Sub-Administrator has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such agreements at or
prior to the Closing Date, (ii) that they have reviewed the Prospectus and that
the information therein regarding the Sub-Administrator is fair and accurate in
all material respects, and (iii) since the date set forth in such certificate,
except as may be disclosed in the Prospectus, no Material Adverse Effect or any
development involving a prospective Material Adverse Effect in, or affecting
particularly the business or properties of the Sub-Administrator has occurred.
(n) You shall have received certificates addressed to you
dated the Closing Date of any two of the Chairman of the Board, the President,
any Executive Vice President, Senior Vice President or Vice President, the
Treasurer, any Assistant Treasurer, the principal financial officer or the
principal accounting officer of SLC, SLC Receivables and the Servicer in which
such officers shall state that, to the best of their knowledge after reasonable
investigation, (i) the representations and warranties of SLC, SLC Receivables or
the Servicer, as the case may be, contained in the respective SLC Sale
Agreement, SLC Receivables Sale Agreement, the Servicing Agreement, the
Subservicing Agreement, the Administration Agreement and the Subadministration
Agreement, as applicable, are true and correct in all material respects, that
each of SLC, SLC Receivables and the Servicer has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied under such
agreements at or prior to the Closing Date, (ii) that they have reviewed the
Prospectus and that the information therein regarding SLC, SLC Receivables or
the Servicer, as applicable, is fair and accurate in all material respects, and
(iii) as of the date of this Agreement, no Material Adverse Effect or any
development involving a prospective Material Adverse Effect, in or affecting
particularly the business or properties of SLC, SLC Receivables or the Servicer,
as applicable, has occurred.
(o) You shall have received certificates addressed to you
dated the Closing Date of any two of the Chairman of the Board, the President,
any Executive Vice President, Senior Vice President or Vice President, the
Treasurer, any Assistant Treasurer, the principal financial officer or the
principal accounting officer of the Sub-Servicer in which such officers shall
state that, to the best of their knowledge after reasonable investigation, (i)
the representations and warranties of the Sub-Servicer contained in the
Subservicing Agreement are true and correct in all material respects, that the
Sub-Servicer has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied under such agreements at or prior to the
Closing Date, (ii) that they have reviewed the Prospectus and that the
information therein regarding the Sub-Servicer is fair and accurate in all
material respects, and (iii) since the date set forth in such certificate,
except as may be disclosed in the Prospectus, no Material Adverse Effect or any
development involving a prospective Material Adverse Effect in, or affecting
particularly the business or properties of the Sub-Servicer has occurred.
(p) You shall have received evidence satisfactory to you that,
on or before the Closing Date, UCC-1 financing statements have been or are being
filed in the office of the Secretary of State of the States of Delaware and New
York reflecting the grant of the security interest by the Company in the Trust
Student Loans and the proceeds thereof to the Indenture Trustee.
(q) You shall have received a certificate addressed to you
dated the Closing Date from a responsible officer acceptable to you of the
Indenture Trustee in form and substance satisfactory to you and your counsel and
to which shall be attached each Guarantee Agreement.
(r) The Underwriters shall have received on the Closing Date
from KPMG LLP, accountants to the Company, a 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 information regarding the Trust Student Loans and
setting forth the results of such specified procedures.
(s) All the representations and warranties of the Company
contained in this Agreement 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 and the Underwriters shall have
received a certificate, dated the Closing Date and signed by an executive
officer of the Company to the effect set forth in this Section 7(s) and in
Section 7(t) hereof.
(t) The Company shall not have failed at or prior to the
Closing Date to 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.
(u) The Underwriters shall have received by instrument dated
the Closing Date (at the option of the Representative), in lieu of or in
addition to the legal opinions referred to in this Section 7, the right to rely
on opinions provided by such counsel and all other counsel under the terms of
the Basic Documents.
(v) You shall have received certificates addressed to you
dated the Closing Date of New York State Higher Education Services Corporation,
California Student Aid Commission and United Student Aid Funds, Inc. (each, a
"Significant Guarantor") to the effect that (i) the information in the
Prospectus with respect to the applicable Significant Guarantor does not contain
any untrue statement of material fact or omit to state a material fact required
to be stated therein or necessary to make the statements about the Significant
Guarantor therein, in the light of the circumstances under which they are made,
not misleading, and (ii) there are no proceedings pending or overtly threatened
in writing against the Significant Guarantor in any court or before any
governmental authority or arbitration board or tribunal, wherein an unfavorable
decision, ruling or finding is likely and would materially adversely affect the
performance by the Significant Guarantor to carry on its business substantially
as now conducted.
(w) The Class A Notes shall be rated "AAA," "AAA" and "Aaa,"
respectively, by Fitch, Inc. ("Fitch"), Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. ("S&P") and Xxxxx'x Investors
Service ("Xxxxx'x"), the Class B Notes shall be rated "AA+," "AA+" and "Aa1,"
respectively, by Fitch, S&P and Xxxxx'x and that none of Fitch, S&P or Xxxxx'x
have placed the Notes under surveillance or review with possible negative
implications.
(x) The issuance of the Notes shall not have resulted in a
reduction or withdrawal by Fitch, S&P or Moody's of their then current rating of
any outstanding securities issued by the Company.
(y) You shall have received evidence satisfactory to you of
the completion of all actions necessary to effect the transfer of the Trust
Student Loans as described in the Prospectus and the recordation thereof on
SLC's, SLC Receivables' and the Sub-Servicer's computer systems.
(z) You shall have received such further information,
certificates and documents as the Representative may reasonably have requested,
and all proceedings in connection with the transactions contemplated by this
Agreement and all documents incident hereto shall be in all material respects
reasonably satisfactory in form and substance to the Representative and its
counsel.
(aa) You shall have received such other opinions, certificates
and documents as are required under the Indenture as a condition to the issuance
of the Notes.
The Company will provide or cause to be provided to you such
conformed copies of such of the foregoing opinions, notes, letters and documents
as you reasonably request.
8. Expenses. The Company agrees 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 it of its obligations hereunder: (i) the
preparation, printing or reproduction of the Registration Statement, the
Prospectus and each amendment or supplement to any of them, this Agreement, and
each other Basic Document; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of the Registration Statement, the Prospectus and all amendments
or supplements to any of them as may be reasonably requested for use in
connection with the offering and sale of the Notes; (iii) the preparation,
printing, authentication, issuance and delivery of definitive certificates for
the Notes; (iv) the printing (or reproduction) and delivery of this Agreement,
the preliminary and supplemental Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Notes; (v) qualification of the Indenture under the Trust Indenture Act;
(vi) the qualification of the Notes for offer and sale under the securities or
Blue Sky laws of the several states as provided in Section 3(j) hereof
(including the reasonable fees, expenses and disbursements of counsel relating
to the preparation, printing or reproduction, and delivery of the preliminary
and supplemental Blue Sky Memoranda and such qualification); (vii) the listing
of the Class A Notes on the Irish Stock Exchange; (viii) the fees and
disbursements of (A) the Company's counsel, (B) the Underwriters' counsel, (C)
the Indenture Trustee and its counsel, (D) the Owner Trustee and its counsel,
(E) DTC in connection with the book-entry registration of the Notes, (F) the SEC
and (G) KPMG LLP, accountants for the Company and issuer of the Comfort Letter;
and (viii) the fees charged by S&P, Fitch and Xxxxx'x for rating the Notes.
9. Effective Date of Agreement. This Agreement shall be deemed
effective as of the date first above written upon the execution and delivery
hereof by all the parties hereto. Until such time as this Agreement shall have
become effective, it may be terminated by the Company, by notifying the
Representative, or by the Representative, by notifying the Company.
Any notice under this Section 9 may be given by telecopy or
telephone but shall be subsequently confirmed by letter.
10. 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 the Company, by notice to the Company, if
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 shall have been declared by either Federal or
state authorities, or (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, as applicable,
or to enforce contracts for the resale of the Notes by the Underwriters. Notice
of such termination may be given to the Company by telecopy or telephone and
shall be subsequently confirmed by letter.
11. Information Furnished by the Underwriters. The statements set
forth in the table on the cover (page 1) of the Prospectus Supplement, and in
the tables and the third, sixth (second sentence only), seventh (second and
third sentences only), tenth, eleventh and twelfth paragraphs under the heading
"Underwriting" in 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 6 hereof.
12. Default by One of the Underwriters. If any of the Underwriters
shall fail on the Closing Date to purchase the Notes which it is obligated to
purchase hereunder (the "Defaulted Notes"), the remaining Underwriters (the
"Non-Defaulting Underwriters") shall have the right, but not the obligation,
within one (1) Business Day thereafter, to make arrangements to purchase all,
but not less than all, of the Defaulted Notes upon the terms herein set forth;
if, however, the Non-Defaulting Underwriters shall have not completed such
arrangements within such one (1) Business Day period, then this Agreement shall
terminate without liability on the part of the Non-Defaulting Underwriters.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, the Non-Defaulting Underwriters shall have the
right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
13. Absence of Fiduciary Relationship. Each of the Company and SLC
acknowledges and agrees that:
(a) the Underwriters have been retained solely to act as
underwriters in connection with the sale of the Notes and agree with
the Company and SLC that no fiduciary, advisory or agency
relationship between the Company and SLC and the Underwriters has
been created in respect of any of the transactions contemplated by
this Agreement, irrespective of whether the Underwriters have
advised or are advising the Company and SLC on other matters;
(b) the price of the Notes set forth in this Agreement was
established by the Company and SLC following discussions and
arms-length negotiations with the Underwriters and the Company and
SLC are capable of evaluating and understanding and understand and
accept the terms, risks and conditions of the transactions
contemplated by this Agreement;
(c) the Company and SLC have been advised that the
Underwriters and their affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of
the Company and SLC and that the Underwriters have no obligation to
disclose such interests and transactions to the Company and SLC by
virtue of any fiduciary, advisory or agency relationship; and
(d) the Company and SLC waive, to the fullest extent permitted
by law, any claims they may have against the Underwriters for breach
of fiduciary duty or alleged breach of fiduciary duty and agree that
the Underwriters shall have no liability (whether direct or
indirect) to the Company and SLC in respect of such a fiduciary duty
claim or to any person asserting a fiduciary duty claim on behalf of
or in right of the Company or SLC, including members, employees or
creditors of the Company or SLC.
14. Survival of Representations and Warranties. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement or contained in notes of officers of the Company submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation or statement as to the results thereof, made by or on
behalf of the Underwriters, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes.
15. Miscellaneous. Except as otherwise provided in Sections 6, 9 and
10 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at 000 Xxxxxxxxxx
Xxxxxxxxx, 0xx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxxxx XxXxxx, and
(ii) if to the Underwriter, to Citigroup Global Markets Inc., 000 Xxxxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxxxx.
This Agreement has been and is made solely for the benefit of the
Underwriters, the Company, their respective directors, officers, trustees and
controlling persons referred to in Section 6 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 an Underwriter of any of the Notes in his status
as such purchaser.
16. Applicable Law; Counterparts. 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.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriter.
Very truly yours,
SLC STUDENT LOAN TRUST 2005-3
By: SLC Student Loan Receivables I, Inc.,
as Depositor
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Treasurer
THE STUDENT LOAN CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: VP & Treasure
Confirmed as of the date first
above mentioned.
CITIGROUP GLOBAL MARKETS INC.,
acting on behalf of itself and as Representative
of the Underwriters
By: /s/ Hantz Xxxxxx
--------------------------------
Name: Hantz Xxxxxx
-----------------------------
Title: VP
----------------------------
SCHEDULE A
-------------------------------------------------------------------------------------------------------------------
PRICE TO UNDERWRITING PROCEEDS TO
NOTES UNDERWRITER PUBLIC DISCOUNT DEPOSITOR
-------------------------------------------------------------------------------------------------------------------
Xxxxxxx
Lynch,
Pierce,
Citigroup Xxxxxx &
Global Credit Suisse Xxxxxx Xxxxx
Markets Inc. First Boston Brothers Inc. Incorporated
-------------------------------------------------------------------------------------------------------------------
Class A-1 $354,900,000 $40,950,000 $40,950,000 $109,200,000 100% 0.1750% 99.8250%
Class A-2 $145,600,000 $16,800,000 $16,800,000 $44,800,000 100% 0.2500% 99.7500%
Class A-3 $139,100,000 $16,050,000 $16,050,000 $42,800,000 100% 0.3000% 99.7000%
Class A-4 $141,440,000 $16,320,000 $16,320,000 $43,520,000 100% 0.3650% 99.6350%
Class B $24,050,000 $2,775,000 $2,775,000 $7,400,000 100% 0.3925% 99.6075%
-------------------------------------------------------------------------------------------------------------------
Total $805,090,000 $92,895,000 $92,895,000 $247,720,000 $1,238,600,000 $3,096,965 $1,235,503,035
-------------------------------------------------------------------------------------------------------------------
