EXHIBIT 1.1
SLM FUNDING CORPORATION
STUDENT LOAN-BACKED NOTES
UNDERWRITING AGREEMENT
NOVEMBER 20, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
ELEVEN XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000-0000
CREDIT SUISSE FIRST BOSTON(EUROPE) LIMITED
ONE XXXXX XXXXXX
XXXXXX X00 0XX
AND
XXXXXXX XXXXX XXXXXX INC.
000 XXXXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
AS REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS NAMED ON SCHEDULE I HERETO
Ladies and Gentlemen:
From time to time, the Student Loan Marketing Association ("Xxxxxx Mae"), a
corporation formed under the laws of the United States, and SLM Funding
Corporation, a Delaware corporation and a wholly-owned subsidiary of Xxxxxx Xxx
(the "Company"), propose to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine. Subject to the terms and
conditions stated herein and therein, the Company proposes to cause the Trust
specified in the applicable Pricing Agreement to issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (each firm constituting
the "Underwriter" with respect to such Pricing Agreement and the securities
specified therein) certain of such Trust's Student Loan-Backed Notes (the
"Notes") specified in Schedule II to such Pricing Agreement (with respect to
such Pricing Agreement, the "Designated Securities"), less the principal amount
of Designated Securities covered by Delayed Delivery Contracts, if any, as
provided in Section 3 hereof and as may be specified in Schedule II to such
Pricing Agreement (with respect to such Pricing Agreement, any Designated
Securities to be covered by Delayed Delivery Contracts are herein sometimes
referred to as "Contract Securities" and the Designated Securities to be
purchased by
the Underwriters (after giving effect to the deduction, if any, for Contract
Securities) are herein sometimes referred to as "Underwriters' Securities").
The Securities may be sold from time to time in one or more Series. Each
Series of Securities, which will include one or more classes of Notes and may
include one or more classes of Student Loan-Backed Certificates (the
"Certificates," and, together with the Notes, the "Securities") will be issued
by a Trust to be formed with respect to such Series (each, a "Trust"). Each
Trust will be formed pursuant to a trust agreement (a "Trust Agreement") to be
entered into between the Company and the Eligible Lender Trustee specified in
the related Pricing Agreement (the "Eligible Lender Trustee"). The Notes of each
Series will be issued and secured pursuant to an indenture (an "Indenture")
between the Trust and the Indenture Trustee specified in the related Pricing
Agreement (the "Indenture Trustee"). The Certificates of a Series will be issued
pursuant to the related Trust Agreement and will represent fractional undivided
interests in the Trust created thereby. The property of each Trust will include,
among other things, educational student loans to students and/or parents of
dependent students made under the Federal Family Education Loan Program
("Student Loans"). In addition, the Trust will enter into a swap agreement (the
"Swap Agreement") with Credit Suisse First Boston International (the "Swap
Counterparty").
With respect to each Trust, (i) the Company will acquire the related
Student Loans from Xxxxxx Mae pursuant to a Purchase Agreement and (ii) the
Company will sell the related Student Loans to such Trust pursuant to a Sale
Agreement, with the related Eligible Lender Trustee holding legal title thereto.
With respect to each Series, Xxxxxx Xxx Servicing L.P., as servicer (the
"Servicer") will enter into a servicing agreement (a "Servicing Agreement") with
the Trust, the Administrator, the Eligible Lender Trustee and the Indenture
Trustee with respect to the related Student Loans. Xxxxxx Mae, as administrator
(in such capacity, the "Administrator"), has entered into a Master
Administration Agreement with the Company dated as of May 1, 1997 and, as
contemplated by the terms of the Master Administration Agreement, will enter
into an Administration Agreement Supplement among the Company, the Trust, the
Eligible Lender Trustee, the Servicer and the Indenture Trustee with respect to
the Student Loans to be held by the Trust (the Master Administration Agreement,
as supplemented by the Administration Agreement Supplement, the "Administration
Agreement").
The terms and conditions of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the related Indenture.
Capitalized terms used but not defined herein or in any Pricing Agreement
shall have the meanings ascribed thereto in the related Indenture.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriter of such Securities, for whom the firms designated as
representatives of the Underwriter of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
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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 Xxxxxx Xxx 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), (n) and (o)
of this Section 2 with respect to Xxxxxx Mae or the Servicer constitute
representations, warranties and agreements of Xxxxxx Xxx only and not of the
Company) :
(a) A registration statement on Form S-3 (File No. 333-97247),
including a form of prospectus, in respect of the Securities has been filed
with the Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus contained therein, to
the Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form; no other document with respect to
such registration statement or document incorporated by reference therein
has heretofore been filed or transmitted for filing with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act of 1933, as amended
(the "Act"), each in the form heretofore delivered to the Representatives);
and no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been
initiated or, to the best of Xxxxxx Mae's or the Company's knowledge,
threatened by the Commission (any preliminary prospectus included in such
registration statement or filed with the Commission pursuant to Rule 424(b)
under the Act, is hereinafter called a "Preliminary Prospectus;" the
various parts of such registration statement, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the registration statement at the
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time such part of the registration statement became effective but excluding
Form T-1, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities, in the
form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act, the
Exchange Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act, the Exchange Act and the Trust Indenture Act, as applicable,
and the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Designated Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will
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conform, in all material respects to the requirements of the Act and the
Trust Indenture Act, as applicable, and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities;
(d) Neither the Company nor Xxxxxx Xxx or any of its subsidiaries has
sustained since the date of the financial statements included in Xxxxxx
Mae's most recently published Information Statement any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in such Information Statement; and, since such date, there
has not been any material adverse change in the capital stock or long-term
debt of the Company or Xxxxxx Xxx or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of the
Company or Xxxxxx Mae or any of its subsidiaries or the transactions
contemplated hereby, otherwise than as set forth or contemplated in such
Information Statement;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the state of Delaware,
with power and authority (corporate and other) 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 Xxxxxx Xxx. Xxxxxx Xxx has been duly organized and is validly
existing under the laws of the United States, with power and authority
(corporate and otherwise) to own its properties and conduct its business as
described in the Prospectus and to consummate the transactions contemplated
therein and herein. The Servicer has been duly formed and is validly
existing as a limited partnership in good standing under the laws of the
State of Delaware, with power and authority (limited partnership and other)
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 Xxxxxx Mae;
(f) All of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable and are owned beneficially and of record by Xxxxxx Xxx;
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(g) This Agreement has been, and each Pricing Agreement with respect
to the Designated Securities upon its execution and delivery by the Company
and Xxxxxx Mae will have been, duly authorized, executed and delivered by
the Company and Xxxxxx Xxx. The Securities have been duly authorized, and,
when Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities, and, in the case of any Contract Securities, pursuant to
Delayed Delivery Contracts with respect to such Contract Securities, such
Designated Securities and Contract Securities will have been duly executed,
authenticated, issued and delivered. The Designated Securities will
constitute valid and legally binding obligations of the related Trust
entitled to the benefits provided by the Indenture, which will be
substantially in the form filed as an exhibit to the Registration
Statement. The Indenture has been duly authorized and duly qualified under
the Trust Indenture Act. The related Certificates are intended to represent
undivided ownership interests in the Trust created by the Trust Agreement,
which will be substantially in the form filed as an exhibit to the
Registration Statement, and will be entitled to the benefits provided by
the Trust Agreement. At the Time of Delivery (as defined in Section 4
hereof) for the Designated Securities, the Indenture and the Trust
Agreement will each constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles. The Indenture and Trust Agreement conform, and the
Designated Securities and the related Certificates will conform, to the
descriptions thereof contained in the Prospectus as amended or supplemented
with respect to the Designated Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, the
Trust Agreement, each of the Delayed Delivery Contracts, this Agreement and
any Pricing Agreement, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or Xxxxxx Mae is a party or by
which the Company or Xxxxxx Xxx is bound or to which any of the property or
assets of the Company or Xxxxxx Mae is subject, nor will such action result
in any violation of the provisions of the Company's Certificate of
Incorporation or By-xxxx, Xxxxxx Mae's charter, enabling legislation or
By-laws, or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or Xxxxxx
Mae 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 Xxxxxx Xxx 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
6
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" and set
forth in the Prospectus Supplement under the caption "Description of the
Notes," insofar as they purport to constitute a summary of the terms of the
Notes and the Certificates, are accurate, complete and fair;
(j) Xxxxxx Mae is not in violation of its charter as set forth in its
enabling legislation or By-laws, and the Company is not in violation of its
Certificate of Incorporation or By-laws, and neither Xxxxxx Xxx 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 Xxxxxx Mae's most
recently published Information Statement or Supplement to the Information
Statement, there are no legal or governmental proceedings pending to which
the Company or Xxxxxx Xxx or any of its subsidiaries is a party or of which
any property of the Company or Xxxxxx Mae or any of its subsidiaries is the
subject which, if determined adversely to the Company or Xxxxxx Xxx or any
of its subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company or Xxxxxx Mae
or any of its subsidiaries or on the consummation of the transactions
contemplated hereby; and, to the best of the Company's and Xxxxxx Mae's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(l) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(m) Neither the Company, Xxxxxx Mae 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, Xxxxxx
Mae's representations and warranties in the related Purchase Agreement and
the Administration Agreement, the Company's representations and warranties
in the related Sale Agreement
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and Trust Agreement and the Servicer's representations and warranties in
the Servicing Agreement will be true and correct in all material respects;
and
(p) In the event any of the Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts has
been duly authorized by the Company and Xxxxxx Mae 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 Underwriter' Securities, the several Underwriters propose to offer such
Underwriter' Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Company may specify in Schedule II to the Pricing Agreement applicable
to any Designated Securities that the Underwriters are authorized to solicit
offers to purchase Designated Securities from the Company pursuant to delayed
delivery contracts (herein called "Delayed Delivery Contracts"), substantially
in the form of Annex III attached hereto but with such changes therein as the
Representatives and the Company may authorize or approve. If so specified, the
Underwriters will endeavor to make such arrangements, and as compensation
therefor the Company will pay to the Representatives, for the accounts of the
Underwriters, at the Time of Delivery, such commission, if any, as may be set
forth in such Pricing Agreement. Delayed Delivery Contracts, if any, are to be
with investors of the types described in the Prospectus and subject to other
conditions therein set forth. The Underwriters will not have any responsibility
with respect to the validity or performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Designated Securities to be purchased by each Underwriter as
set forth in Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, the principal amount of Contract Securities
which the Company has been advised by the Representatives have been attributed
to such Underwriter, provided that, if the Company has not been so advised, the
amount of Contract Securities to be so deducted shall be, in each case, that
proportion of Contract Securities which the principal amount of Designated
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the total principal amount of the Designated Securities (rounded as the
Representatives may determine). The total principal amount of Underwriters'
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the total principal amount of Designated Securities set forth
in Schedule I to such Pricing Agreement less the principal amount of the
Contract Securities. The Company will deliver to the Representatives not later
than 3:30 p.m., New York City time, on the third business day preceding the Time
of Delivery specified in the applicable Pricing Agreement (or such other
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time and date as the Representatives and the Company may agree upon in writing),
a written notice setting forth the principal amount of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer or
by certified or official bank check or checks, payable to the order of the
Company in the funds specified in such Pricing Agreement, all in the manner and
at the place and time and date specified in such Pricing Agreement or at such
other place and time and date as the Representatives and the Company may agree
upon in writing, such time and date being herein called the "Time of Delivery"
for such Securities.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of the party designated in the
Pricing Agreement relating to such Underwriters' Securities in the amount of any
compensation payable by the Company to the Underwriters in respect of any
Delayed Delivery Contracts as provided in Section 3 hereof and the Pricing
Agreement relating to such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities, and Xxxxxx Xxx agrees with such Underwriters that it will cause the
Company:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Designated Securities and prior to the Time of Delivery for such
Designated Securities, which amendment or supplement shall be disapproved
by the Representatives for such Designated Securities promptly after
reasonable notice thereof; to advise the Representatives promptly of any
such amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Designated Securities, and
during such same period to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed
9
with the Commission, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any prospectus relating to
the Designated Securities, of the suspension of the qualification of such
Designated Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Designated Securities or suspending any such qualification, to promptly use
its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Designated Securities
for offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of such
Designated Securities, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented, in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a Prospectus is
required at any time in connection with the offering or sale of the
Designated Securities and if at such time any event shall have occurred as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and, upon their request,
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To cause the Trust to make generally available to holders of
Designated Securities, as soon as practicable, but in any event not later
than eighteen months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), an earnings statement of the
Trust (which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including, at
the option of the Company, Rule 158); and
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(e) To apply the net proceeds of the offering and sale of the
Designated Securities and the related Certificates that it receives in the
manner set forth in the Prospectus.
6. The Company and Xxxxxx Xxx covenant and agree with the several
Underwriters that the Company or Xxxxxx Mae will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's and Xxxxxx
Mae's counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or producing any Agreement among Underwriters, this
Agreement, any Pricing Agreement, any Indenture, any Trust Agreement, any
Delayed Delivery Contracts, any Blue Sky and Legal Investment Memoranda, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Designated
Securities; (iii) all expenses in connection with the qualification of the
Designated Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky and Legal Investment Surveys; (iv) any fees charged by
securities rating services for rating the Designated Securities; (v) the cost of
preparing the Designated Securities; (vi) the fees and expenses of the Eligible
Lender Trustee and the Indenture Trustee and any agent of the Eligible Lender
Trustee or the Indenture Trustee and the fees and disbursements of counsel for
the Eligible Lender Trustee and the Indenture Trustee in connection with any
Indenture and Trust Agreement and the Designated Securities; (vii) the fees
payable to the Luxembourg Stock Exchange in connection with listing Designated
Securities on the Luxembourg Stock Exchange; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder and under any
Delayed Delivery Contracts that are not otherwise specifically provided for in
this Section. It is understood, however, that, except as provided in this
Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the reasonable discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company and Xxxxxx
Mae 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 Xxxxxx Xxx
shall have performed all of their obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the
11
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with;
(b) Counsel for the Underwriters shall have furnished Representatives
such opinion or opinions, substantially in the form attached hereto as
Annex II(a), dated the Time of Delivery for such Designated Securities,
with respect to the Designated Securities and such other related matters as
the Representatives may reasonably request;
(c) Internal counsel for the Company, Xxxxxx Mae and the Servicer,
satisfactory to the Representatives, shall have furnished to the
Representatives a written opinion or opinions, dated the Time of Delivery
for such Designated Securities, substantially in the form attached hereto
as Annex II(b) or as is otherwise satisfactory to the Representatives;
(d) Special counsel for the Company, Xxxxxx Xxx and the Servicer,
satisfactory to the Representatives, shall have furnished to the
Representatives a written opinion or opinions, dated the Time of Delivery
for such Designated Securities, substantially in the form attached hereto
as Annex II(a) or as is otherwise satisfactory to the Representatives;
(e) Counsel for the Eligible Lender Trustee, satisfactory to the
Representatives, shall have furnished to the Representatives a written
opinion or opinions, dated the Time of Delivery for such Designated
Securities, substantially in the form attached hereto as Annex II(d) or as
is otherwise satisfactory to the Representatives;
(f) Counsel for the Indenture Trustee, satisfactory to the
Representatives, shall have furnished to the Representatives a written
opinion or opinions, dated the Time of Delivery for such Designated
Securities, substantially in the form attached hereto as Annex II(e) or as
is otherwise satisfactory to the Representatives;
(g) At the time a Preliminary Prospectus relating to such Designated
Securities was distributed and on the date of the Pricing Agreement for
such Designated Securities, the independent public accountants of the
Company and Xxxxxx Mae shall have furnished to the Representatives a letter
or letters with respect to the Company, Xxxxxx Xxx, the statistical and
financial information contained in the Preliminary Prospectus and the
Prospectus and certain agreed upon procedures with respect to the issuance
and offering of the Designated Securities and the related Student Loans, in
form and substance satisfactory to the Representatives and in each case
confirming that such accountants are independent public accountants with
the meaning of the Act and the applicable rules and regulations thereunder;
(h) (i) Neither the Company nor Xxxxxx Mae shall have sustained since
the date of the financial statements included in Xxxxxx Mae's most recently
published Information Statement or Supplement to the Information Statement
any material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by
12
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in such Information
Statement, and (ii) since such date, there shall not have been any material
adverse change in the capital stock or long-term debt of the Company or
Xxxxxx Mae or any such change, or any development involving a prospective
such change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company or
Xxxxxx Xxx otherwise than as set forth or contemplated in such Information
Statement or Supplement, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of the Representatives so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Underwriters' Securities on the
terms and in the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded Xxxxxx Mae's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act ("Rating Agency"),
and (ii) no such Rating Agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of Xxxxxx Mae's debt securities;
(j) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange or Luxembourg Stock Exchange or any setting
of minimum prices for trading on such exchange; (ii) a general moratorium
on commercial banking activities declared by any of United States Federal
or New York State authorities, or by The Bank of England or the European
Central Bank; or (iii) the outbreak or escalation of hostilities involving
the United States or United Kingdom or the declaration by the United States
or United Kingdom of a national emergency or war, if the effect of any such
event specified in this clause (iii) in the reasonable judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Underwriters' Securities on the
terms and in the manner contemplated in the Prospectus as theretofore
amended or supplemented relating to the Designated Securities;
(k) Each of the Company and Xxxxxx Mae 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 Xxxxxx Xxx, as the case may be, satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company or Xxxxxx Mae, as the case may be, herein at and as of such
Time of Delivery, as to the performance by the Company or Xxxxxx Xxx, as
the case may be, of all of their obligations hereunder to be performed at
or prior to such Time of Delivery, as to the matters set forth in
subsections (a), (h) and (i) of this Section and as to such other matters
as the Representatives may reasonably request;
13
(l) At the Time of Delivery, the aggregate principal amount of the
Underwriters' Securities as specified in the related Pricing Agreement for
the Designated Securities shall have been sold by the Company to the
Underwriters, and the aggregate amount of the related Certificates, if any,
as specified in the related underwriting agreement for such Certificates
shall have been sold by the Company to the underwriters specified in such
underwriting agreement;
(m) The Designated Securities shall be rated as set forth in the
related Prospectus by the Rating Agency (or Agencies) specified in such
Prospectus, and such Rating Agency or Agencies shall not have placed the
Designated Securities under surveillance or review with negative
implications; and
(n) The Designated Securities consisting of the Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class A-5 Notes shall
have been approved for listing on the Luxembourg Stock Exchange.
(o) The Swap Agreement shall have been entered into by the Trust and
the Swap Counterparty, and the Underwriters shall have received a copy,
addressed to them or on which they are otherwise entitled to rely, of each
opinion of counsel required to be delivered thereunder at or before the
Time of Delivery, and a copy of each certificate required to be delivered
thereunder at or before the Time of Delivery.
8. (a) The Company and Xxxxxx Mae, jointly and severally, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Designated Securities, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that the Company and Xxxxxx Xxx shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company or Xxxxxx Mae by any Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company and Xxxxxx Xxx against any losses, claims, damages or
liabilities to which they may
14
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated Securities, or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company or Xxxxxx Mae by such Underwriter through
the Representatives expressly for use therein; and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each
15
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 Xxxxxx Xxx, on the one hand and
the Underwriters of the Designated Securities on the other from the offering of
the Designated Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and Xxxxxx
Mae, 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 Xxxxxx Xxx, 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
Xxxxxx Mae 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 Xxxxxx Xxx, 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, Xxxxxx Mae and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by PRO
RATA allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company and Xxxxxx Xxx under this Section 8
shall be in addition to any liability which the Company and Xxxxxx Mae may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Underwriters and to each person, if any, who
controls any Underwriter within the meaning of the Act; and the
16
obligations of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
or Xxxxxx Xxx and to each person, if any, who controls the Company or Xxxxxx Mae
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Underwriters' Securities which it has agreed to purchase under the Pricing
Agreement relating to such Underwriters' Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Underwriters' Securities on the terms contained herein and
therein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Underwriters'
Securities, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Underwriters' Securities on such terms. In the
event that, within the respective prescribed period, the Representatives notify
the Company that they have so arranged for the purchase of such Underwriters'
Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Underwriters' Securities, the Representatives or the
Company shall have the right to postpone the Time of Delivery for such
Underwriters' Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Underwriters' Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Underwriters'
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Underwriters' Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Underwriters' Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the
17
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 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, Xxxxxx Xxx and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company or Xxxxxx Mae or any officer or director or controlling person of the
Company or Xxxxxx Xxx, and shall survive delivery of and payment for the
Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company and Xxxxxx Mae shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such Pricing
Agreement except as provided in Sections 6 and 8 hereof; but, if for any other
reason Underwriters' Securities are not delivered by or on behalf of the Company
as provided herein, except for any of the reasons specified in Section 7(j), the
Company and Xxxxxx Xxx will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company and Xxxxxx Mae shall
then be under no further liability to any Underwriter with respect to such
Designated Securities except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company or Xxxxxx Xxx shall be delivered or
sent by mail, telex or facsimile transmission to:
SLM Funding Corporation
Suite B
000 X. Xxxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxx 00000
18
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxx
Student Loan Marketing Association
00000 Xxxxxx Xxx Xxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx
Vice President
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company or Xxxxxx Xxx by the Representatives upon request. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company, Xxxxxx Mae and,
to the extent provided in Sections 8 and 10 hereof, the officers and directors
of the Company and Xxxxxx Xxx and each person who controls the Company, Xxxxxx
Mae or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any such Pricing Agreement. No purchaser
of any of the Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business and "New York Business Day" shall mean any
day when banking institutions are open for business in New York City, New York.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
19
IF THE FOREGOING IS IN ACCORDANCE WITH YOUR UNDERSTANDING, PLEASE SIGN AND
RETURN TO US 7 COUNTERPARTS HEREOF.
Very truly yours,
SLM FUNDING CORPORATION
By: /s/ XXXX X. XXXXXX
-------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
STUDENT LOAN MARKETING ASSOCIATION
By: /s/ XXXXXX XXXXXXXXXX
-------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Treasurer
Accepted as of the date hereof:
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ XXXXXXXX XXXXX
---------------------
Name: Xxxxxxxx Xxxxx
Title: Director
----------------
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
By: /s/ XXXXXX XXXXXXXXX
-------------------------
Name: Xxxxxx Xxxxxxxxx
------------------------
Title: Authorized Signatory
----------------------------
XXXXXXX XXXXX XXXXXX INC.
By: /s/ XXXX X. XXXXXX XX.
---------------------------
Name: Xxxx X. Xxxxxx Xx.
--------------------------
Title: Director
On behalf of each of the Underwriters
20
ANNEX I
PRICING AGREEMENT
_______________________
AS REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS NAMED ON SCHEDULE I HERETO,
C/O____________________
_______________________
_______________________
, 200_
Ladies and Gentlemen:
SLM Funding Corporation, a Delaware corporation (the "Company"), and the
Student Loan Marketing Association, a corporation formed under the laws of the
United States ("Xxxxxx Mae"), propose, subject to the terms and conditions
stated herein and in the Underwriting Agreement, dated __________, 200__ (the
"Underwriting Agreement"), between the Company and Xxxxxx Xxx, 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 and _________, as trustee (the "Indenture
Trustee").
Each of the provisions of the Underwriting Agreement is incorporated herein
by reference in its entirety, and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the Representatives and
on behalf of each of the Underwriters of the Designated Securities pursuant to
Section 12 of the Underwriting Agreement and the address of the Representatives
referred to in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
cause the Trust to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto, less the principal
amount of Designated Securities covered by Delayed Delivery Contracts, if any,
as may be specified in Schedule II.
During the period beginning from the date of this Pricing Agreement for the
Designated Securities and continuing to and including [Closing Date], the
Company agrees, and Xxxxxx Mae agrees that it will cause the Company, not to,
and not to permit any affiliated entity to, offer, sell, contract to sell or
otherwise dispose of, any securities (other than the Designated Securities)
collateralized by, or any securities (other than the related Certificates)
evidencing an ownership in, Student Loans, without the prior written consent of
the Representatives.
Each Underwriter represents and agrees that (a) it has not offered or
sold and will not offer or sell any Notes 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; (b) it has only communicated
or caused to be communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in investment activity, with
the meaning of section 21 of the Financial Services and Markets Act 2000 (the
"FSMA"), received by it in connection with the issue or sale of 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. The Company represents and agrees that
it has been informed of the existence of the FSA stabilizing guidance contained
in Section MAR 2, Xxx 2G of the FSA Handbook (the Handbook of rules and guidance
issued by the Financial Services Authority).
Credit Suisse First Boston (Europe) Limited, in its capacity as UK
Stabilizing Manager, may, to the extent permitted by applicable laws, over-allot
and effect transactions in any over-the-counter market or otherwise in
connection with the distribution of the Class A-5 Student Loan-Backed Notes (the
"Euro Notes") with a view to supporting the market price of the
2
Euro Notes at levels higher than those which might otherwise prevail in the open
market, but in doing so it shall not act as agent of the Company and any loss
resulting from over-allotment or stabilization will be borne, and any profit
arising from them shall be retained, by the UK Stabilizing Manager or, as the
case may be, the Underwriters in the manner agreed between them. The
Underwriters acknowledge that the Company has not authorized the issue of Euro
Notes in a principal amount exceeding Euro [ ].
Each Underwriter further represents and agrees that:
(a) it understands that the Seller has not taken any action, or will
take any action, that would permit a public offering of the Notes in any country
or jurisdiction other than in the United States, where action for that purpose
is required, and the Notes shall not be offered or sold, directly or indirectly,
and neither the Prospectus nor any circular, prospectus, form of application,
advertisement or other material may be distributed in or from or published in
any such country or jurisdiction, except under circumstances that will result in
compliance with any applicable laws and regulations;
[(b) it has not offered or sold and will not offer or sell the Notes,
nor will it circulate or distribute the Prospectus or any other offering
document or material relating to the Notes, either directly or indirectly, to
the public or any member of the public in Singapore other than to an
institutional investor or other person specified in Section 106C of the
Singapore Companies Act; to a sophisticated investor, and in accordance with the
conditions specified in Section 106D of the Singapore Companies Act; or
otherwise pursuant to, and in accordance with the conditions of, any other
applicable provision of the Singapore Companies Act;
(c) it will comply with the German Securities Sales Prospectus Act,
as amended, and any other laws applicable in Germany governing the issue, and
the restrictions applying to the offer and distribution of Euro-securities; and
it will not promote publicly (KEINE OFFENTLICHE WERBUNG) the distribution of the
Notes within the Federal Republic of Germany; and, in connection with the
initial offering of Notes denominated in Euros in Germany, it will offer and
sell Notes (i) only for an aggregate purchase price per purchaser of at least
e80,000 (or the foreign currency equivalent) or such other amount as may be
stipulated from time to time by applicable German law, or (ii) in accordance
with the provisions of the German Securities Prospectus Act of June 21, 2002, as
amended, or any other laws applicable in Germany governing the issue, offering,
and sale of securities;
(d) it has not offered or sold in connection with the Notes' initial
distribution, and will not offer or sell, directly or indirectly, in connection
with the Notes' initial distribution, any Notes in the Republic of France,
whether or not such Notes are Paris-listed notes, and it has not distributed and
will not distribute or cause to be distributed in France the Prospectus or any
other offering material relating to the Notes, except (i) to qualified investors
(investisseurs qualifies), or (ii) to a restricted group of investors (cercle
restreint d'investisseurs), all as defined in Articles L.411-1 and L.411-2 of
the CODE MONETAINE ET FINANCIER in Decree No. 98-880 dated October 1998 and in
Regulation No. 98-09 of the Commission des Operations de Bourse;
3
(e) it has not, directly or indirectly, offered or sold and will not,
directly or indirectly, offer or sell in The Netherlands any Notes with a
denomination of less than e50,000 (or its foreign currency equivalent) other
than to Persons who trade or invest in securities in the conduct of a profession
or business (which includes banks, securities intermediaries (including dealers
and brokers), insurance companies, pension funds, other institutional investors
and finance companies and treasury departments of large enterprises which as an
ancillary activity regulatory invest in securities) unless one of the other
exemptions or exceptions to the prohibition contained in Article 3 of the Dutch
Securities Transactions Supervision Act 1995 is applicable and the conditions
attached to such exemption or exception are met; and
(f) the Notes may not be offered, sold or delivered and that no other
offering material relating to the Notes may be distributed or made available to
the public in the Republic of Italy, except to Persons whose ordinary services
involve them in acquiring, holding, managing or disposing of investments for the
purposes of their business, or otherwise in circumstances which do not
constitute an offer to the public in Italy within the meaning attributed to such
phrase by COMMISSIONE NAZIONALE SOCIETA E BORSA or CONSOB; and the offer, sale
or delivery of the Notes in Italy or the distribution of copies of any offering
document relating to the Notes may only be performed if (i) it is carried out by
or through one of the following authorized intermediaries: (A) investment
companies and banks authorized to place and distribute securities in Italy
pursuant to Legislative Decree No. 58 of 24 February 1998 and CONSOB Regulation
No. 11522 of 1 July 1998, and (B) foreign banks or financial institutions(the
controlling shareholder of which is owned by one or more banks located in the
same European Union member state) authorized to place and distribute securities
in Italy pursuant to, respectively, Articles 16 and 18 of the Legislative Decree
No. 385 of 1 September 1993 or the Consolidated Banking Act, in each case acting
in compliance with the relevant provisions of the Legislative Decree No. 415 of
23 July 1996 and related regulations and any other applicable laws and
regulations, (ii) it is in compliance with the requirements of CONSOB Resolution
Xx. 00000 xx 00 Xxxxxxxxx 0000, (xxx) it is preceded and followed by the
communications to CONSOB as required by applicable Italian laws and regulations,
(iv) it is in compliance with Article 129 of the Consolidated Banking Act and
with the relevant instructions of the Bank of Italy, pursuant to which trading
or placement of foreign securities is subject to prior notification to the Bank
of Italy depending on the amount of the issue and the characteristics of the
Notes to be issued, (v) it will be conducted in accordance with any relevant
limitations which the Bank of Italy or CONSOB may impose upon the offer or sale
of the Notes, or (vi) Italian residents submit unsolicited offers to the
underwriters to purchase the Notes.]
If the foregoing is in accordance with your understanding, please sign and
return to us _______ counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company and Xxxxxx Mae. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be
4
submitted to the Company and Xxxxxx Xxx 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 CORPORATION
By:
-------------------------------------
Name:
Title:
STUDENT LOAN MARKETING ASSOCIATION
By:
-------------------------------------
Name:
Title:
5
Accepted as of the date hereof:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
------------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
By:
------------------------------------------
Name:
Title:
XXXXXXX XXXXX BARNEY INC.
By:
------------------------------------------
Name:
Title:
On behalf of each of the Underwriters
6
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.:
2
ANNEX II(a)
THE COMPANY, XXXXXX XXX, THE SERVICER AND THE UNDERWRITERS: OUTSIDE COUNSEL
OPINION
[Opinions to be issued, which together will be substantially in the form
provided for
SLM Student Loan Trust 2002-6]
ANNEX II(b)
THE COMPANY, XXXXXX MAE AND THE SERVICER: INTERNAL COUNSEL OPINION
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2002-6]
ANNEX II(c)
ELIGIBLE LENDER TRUSTEE: COUNSEL OPINION
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2002-6]
ANNEX II(d)
INDENTURE TRUSTEE: COUNSEL OPINION
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2002-6]
ANNEX III
DELAYED DELIVERY CONTRACT
SLM FUNDING CORPORATION
C/O _______________________
___________________________
___________________________
Attention:_____________________________ _______________, 20__
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SLM Funding Corporation
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
$_____
principal amount of the Company's ________ (hereinafter called the "Designated
Securities"), offered by the Company's Prospectus, dated ______________, 20__,
as amended or supplemented, receipt of a copy of which is hereby acknowledged,
at a purchase price of _____% of the principal amount thereof, plus accrued
interest from the date from which interest accrues as set forth below, and on
the further terms and conditions set forth below.
The undersigned will purchase the Designated Securities from the Company on
______________, 20__ (the "Delivery Date") and interest on the Designated
Securities so purchased will accrue from ______________, 20__.
[THE UNDERSIGNED WILL PURCHASE THE DESIGNATED SECURITIES FROM THE COMPANY
ON THE DELIVERY DATE OR DATES AND IN THE PRINCIPAL AMOUNT OR AMOUNTS SET FORTH
BELOW:
PRINCIPAL DATE FROM WHICH
DELIVERY DATE AMOUNT INTEREST ACCRUES
------------- --------- ----------------
_____________________, 20__ $_____________ _____________________, 20__
_____________________, 20__ $_____________ _____________________, 20__
EACH SUCH DATE ON WHICH DESIGNATED SECURITIES ARE TO BE PURCHASED HEREUNDER IS
HEREINAFTER REFERRED TO AS A "DELIVERY DATE."(4)]
Payment for the Designated Securities which the undersigned has agreed to
purchase on [THE] [EACH] Delivery Date shall be made to the Company or its order
by certified or official bank check in __________ Clearing House funds at the
office of __________, _________, __________, or by wire transfer to a bank
account specified by the Company, on [THE] [SUCH] Delivery Date upon delivery to
the undersigned of the Designated Securities then to be purchased by the
undersigned in definitive fully registered form and in such denominations and
registered in such names as the undersigned may designate by written, telex or
facsimile communication addressed to the Company not less than five full
business days prior to [THE] [SUCH] Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Designated Securities on [THE] [EACH] Delivery Date shall be subject to the
condition that the purchase of Designated Securities to be made by the
undersigned shall not on [THE] [SUCH] Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject. The obligation of the
undersigned to take delivery of and make payment for Designated Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Designated Securities pursuant to other contracts similar to this
contract.
[THE UNDERSIGNED UNDERSTANDS THAT UNDERWRITERS (THE "UNDERWRITERS") ARE
ALSO PURCHASING DESIGNATED SECURITIES FROM THE COMPANY, BUT THAT THE OBLIGATIONS
OF THE UNDERSIGNED HEREUNDER ARE NOT CONTINGENT ON SUCH PURCHASES]. Promptly
after completion of the sale to the Underwriters the Company will mail or
deliver to the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the Opinion of Counsel for the Company delivered to the
Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
F-2
It is understood that the acceptance by the Company of any Delayed Delivery
Contract (including this contract) is in the Company's sole discretion and that,
without limiting the foregoing, acceptances of such contracts need not be on a
first-come, first-served basis. If this contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
Yours very truly,
----------------------------------------
By:
-------------------------------------
(Authorized Signature)
Name:
Title:
----------------------------------------
(Address)
Accepted: ________________________, 20__
SLM FUNDING CORPORATION
By:
-------------------------------------
Name:
Title:
F-3
