EXHIBIT 1.1
Underwriting Agreement dated September 19, 2002
$189,900,000
Education Loans Incorporated
STUDENT LOAN ASSET-BACKED NOTES, SERIES 2002-1
consisting of
$82,700,000 Student Loan Asset-Backed Notes, Senior Series 2002-1A
$82,700,000 Student Loan Asset-Backed Notes, Senior Series 2002-1B
$24,500,000 Student Loan Asset-Backed Notes, Subordinate Series 2002-1C
Underwriting Agreement
September 19, 2002
XXXXXXX XXXXX XXXXXX INC.,
as Representative of the Underwriters named herein
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Education Loans Incorporated, a Delaware corporation
("EdLinc") and wholly-owned subsidiary of Student Loan Finance Corporation, a
South Dakota corporation ("SLFC"), proposes to sell $189,900,000 aggregate
principal amount of its Student Loan Asset-Backed Notes, Series 2002-1 (the
"Notes") to Xxxxxxx Xxxxx Xxxxxx Inc. and U.S. Bancorp Xxxxx Xxxxxxx Inc.
(collectively, the "Underwriters" and each individually an "Underwriter") for
whom you (the "Representative") are acting as representative pursuant to the
terms of this Underwriting Agreement (this "Agreement"). The Notes are to be
issued in three series designated as Student Loan Asset-Backed Notes, Senior
Series 2002-1A (the "Series 2002-1A Notes"), Student Loan Asset-Backed Notes,
Senior Series 2002-1B (the "Series 2002-1B Notes", and together with the Series
2002-1A Notes, the "Series 2002-1 Senior Notes") and Student Loan Asset-Backed
Notes, Subordinate Series 2002-1C (the "Series 2002-1 Subordinate Notes"). The
initial aggregate principal amounts of each series of Notes shall be as listed
in Appendix A hereto.
The Notes shall be as described in, shall be subject to
redemption and auction, shall have such other provisions and details and shall
be issued pursuant to the Fourth Supplemental Indenture, dated as of September
1, 2002 (the "Supplemental Indenture"), supplemental to an Indenture of Trust,
dated as of December 1, 1999 (as supplemented and amended, the "Indenture"),
between EdLinc and U.S. Bank National Association, as trustee (the "Trustee").
Upon issuance, the Trustee shall use proceeds of the Notes as described in the
Prospectus (as hereinafter defined) to originate Student Loans and to purchase
Student Loans from Goal Funding, Inc., a Delaware corporation (the "Transferor")
and wholly-owned
Underwriting Agreement dated September 19, 2002
subsidiary of SLFC, and from unaffiliated lenders. The Notes will be secured by,
among other things, Financed Student Loans pledged to the Trustee and described
in the Prospectus.
Capitalized terms used but not defined herein have the
respective meanings ascribed thereto in Appendix B hereto.
1. Agreement to Sell, Purchase and Resell
(a) EdLinc hereby agrees, subject to all of the terms and
conditions set forth herein, to sell to the Underwriters and, upon the basis of
the representations, warranties and agreements of EdLinc, the Transferor and
SLFC herein contained and subject to all of the terms and conditions set forth
herein, the Underwriters, jointly and severally, agree to purchase from EdLinc,
all (but not less than all) of the Notes at the aggregate purchase price of
$189,078,000, and EdLinc hereby agrees to pay on behalf of the Underwriters, the
fees and expenses of counsel to the Underwriters in the aggregate amount of
$125,000. The maturity dates, purchase prices and underwriting discounts for
each series of the Notes shall be as listed in Appendix A hereto.
(b) The Series 2002-1 Senior Notes and the Series 2002-1
Subordinate Notes shall bear interest for the period commencing on the date of
issuance of the Notes through the end of the respective Initial Interest Periods
at the respective per annum rates specified in Appendix A hereto. Thereafter,
such rates per annum shall be determined in accordance with the Supplemental
Indenture.
(c) It is understood that the Underwriters propose to offer
the Notes for sale to the public (which may include selected dealers) as set
forth in the Prospectus. The Notes may be offered and sold to certain dealers
(including the Underwriters and other dealers depositing such Notes into
investment trusts or mutual funds) at prices lower than such public offering
prices.
(d) The Representative is duly authorized to execute this
Agreement and to act hereunder on behalf of the Underwriters.
(e) Each Underwriter severally represents and agrees that (i)
it has not offered or sold, and will not offer or sell, any Notes to persons in
the United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purpose of their businesses or otherwise in circumstances which have not
resulted, and will not result in, an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995; (ii) it
has complied and will comply with all applicable provisions of the Financial
Services Act of 1986 with respect to anything done by it in relation to the
Notes in, from or otherwise involving the United Kingdom; and (iii) it has only
issued or passed on, and will only issue and pass on, in the United Kingdom any
document received by it in connection with the issue of the Notes to a person
who is of a kind described in Article 11(3) of the Financial Services Xxx 0000
(Investment Advertisements) (Exemptions) Order 1996 or to a person to whom such
document may otherwise lawfully be issued, distributed or passed on.
2. Delivery of the Notes and Payment Therefor
-2-
Underwriting Agreement dated September 19, 2002
At 11:00 A.M., New York City time, on September 19, 2002, or
at such other time or on such earlier or later business day as shall have been
mutually agreed upon by EdLinc, SLFC, the Transferor and the Underwriters (the
"Closing Date"), EdLinc will deliver to DTC, for the account of the
Underwriters, the Notes in definitive form bearing CUSIP numbers, duly executed
and authenticated, together with the other documents hereinafter mentioned; and
the Underwriters will accept such delivery and pay the purchase price of the
Notes as set forth in Section 1 hereof in immediately available funds to the
account of EdLinc and EdLinc shall pay to Underwriters' counsel, on behalf of
the Underwriters, the fees and expenses of Underwriters' counsel as set forth in
Section 1 hereof in immediately available funds to the account of Xxxxx &
Xxxxxxx. Delivery of the Notes and payment as aforesaid shall be made at such
location in New York, New York as shall be requested by the Representative.
Delivery of the other documents shall be at the offices Xxxxxx & Whitney LLP, 00
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000. This payment
and delivery is herein called the "Closing". The Notes delivered at the Closing
shall be made available to the Trustee for the benefit of the Underwriters, to
facilitate a "Fast' closing through DTC, at least one business day prior to the
date of the Closing for purposes of inspection. The Notes shall be prepared and
delivered as fully registered notes in authorized denominations and registered
in such manner as the Representative shall have requested.
3. Representations and Warranties of EdLinc, SLFC and the
Transferor.
EdLinc, SLFC and the Transferor represent and warrant to, and
agree with, the Underwriters that:
(a) A registration statement on Form S-3 (File Nos. 333-85963
and 333-68072), including a prospectus and such amendments thereto as may have
been required to the date hereof, relating to the Notes and the offering thereof
from time to time in accordance with Rule 415 under the Securities Act of 1933,
as amended (the "Securities Act") has been filed with the Securities and
Exchange Commission (the "Commission") and such registration statement, as
amended, has become effective under the Securities Act; such registration
statement, as amended, including all information (if any) deemed to be a part of
such registration statement as of the Effective Time (as defined below), and
including the exhibits thereto and any material incorporated by reference
therein, and the prospectus and the prospectus supplement relating to the sale
of the Notes offered thereby constituting a part thereof, as amended or
supplemented including any prospectus filed under Rule 424(b) under the
Securities Act, are respectively referred to herein as the "Registration
Statement" and the "Prospectus"; and the conditions to the use of a registration
statement on Form S-3 under the Securities Act, as set forth in the General
Instructions to Form S-3, and the conditions of Rule 415 under the Securities
Act have been satisfied with respect to the Registration Statement. For purposes
of this Agreement, "Effective Time" means (x) if EdLinc has advised the
Representative that it does not propose to amend the Registration Statement, the
date and time as of which the Registration Statement, or the most recent
amendment thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission, or (y) if EdLinc has
advised the Representative that it proposes to file an amendment or post
effective amendment to the Registration Statement, the date and time as of which
the Registration Statement, as amended by such amendment or post effective
amendment, as the case may be, is declared effective by the Commission.
"Effective
-3-
Underwriting Agreement dated September 19, 2002
Date" means the date of the Effective Time. Copies of the Registration
Statement, the Prospectus and all other documents which were filed by EdLinc
with the Commission on or prior to the date hereof have been delivered to you.
For purposes of this Agreement, all references to the Registration Statement and
the Prospectus or any amendment or supplement thereto shall be deemed to include
the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System ("XXXXX").
(b) On the Effective Date, on the date of this Agreement and
on the Closing Date, the Registration Statement and the Prospectus conformed,
conform and will conform in all material respects to the requirements of the
Securities Act, the rules and regulations of the Commission (the "Rules and
Regulations") and the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder (the "Trust Indenture Act"), and in the case of the
Registration Statement, did not, does not and will not include any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and in
the case of the Prospectus, did not, does not and will not include any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements made in
reliance upon and in conformity with information furnished in writing to EdLinc
by the Underwriters expressly for use therein. There are no contracts or other
documents required by the Securities Act or by the Rules and Regulations to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which have not been described or filed as
required. The Prospectus delivered to the Underwriter for use in connection with
the offering of the Notes was identical to the electronically transmitted copies
thereof filed with the Commission.
(c) The Commission has not issued and, to the best knowledge
of EdLinc and SLFC, is not threatening to issue any order preventing or
suspending the use of the Registration Statement. No order preventing or
suspending the use of any prospectus has been issued by the Commission or any
state regulatory authority or other jurisdictional regulatory agency ("Blue Sky
Authorities").
(d) As of the Closing Date, each consent, approval,
authorization or order of, or filing with, any court or governmental agency or
body which is required to be obtained or made by EdLinc, SLFC, the Transferor or
any of their affiliates for the consummation of the transactions contemplated by
this Agreement shall have been obtained, except as otherwise provided in the
Basic Documents.
(e) EdLinc has the requisite power and authority to execute,
deliver and perform its obligations under the Indenture, the Supplemental
Indenture, the Letter of Representations and the Auction Agent Agreement. The
Indenture has been duly and validly authorized, executed and delivered by EdLinc
and, assuming due authorization, execution and delivery by the other parties
thereto, constitutes the valid and legally binding agreement of EdLinc,
enforceable in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws of general applicability affecting creditors' rights or general equitable
principles. The Supplemental Indenture, the Letter of Representations and the
Auction Agent Agreement have been duly and
-4-
Underwriting Agreement dated September 19, 2002
validly authorized by EdLinc and, upon their execution and delivery by EdLinc,
assuming due authorization, execution and delivery by the other parties thereto,
will be duly executed and delivered by EdLinc and will constitute valid and
legally binding agreements of EdLinc, enforceable in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general applicability
affecting creditors' rights or general equitable principles. The Indenture, the
Supplemental Indenture, the Letter of Representations and the Auction Agent
Agreement conform in all material respects to the descriptions thereof in the
Prospectus.
(f) EdLinc has the requisite power and authority to issue the
Notes. The Notes have been duly authorized by EdLinc and, when executed by
EdLinc, authenticated by the Trustee in accordance with the Indenture and
delivered to the Underwriters against payment therefor in accordance with the
terms hereof, will have been validly issued and delivered, and will constitute
valid and legally binding obligations of EdLinc entitled to the benefits of the
Indenture and enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, moratorium, or other similar
laws of general applicability relating to or affecting creditors' rights or
general equitable principles. The Notes conform in all material respects to the
description thereof in the Prospectus.
(g) EdLinc and the Transferor each has the requisite power and
authority to execute, deliver and perform its obligations under the Transfer
Agreement. The Transfer Agreement has been duly and validly authorized by EdLinc
and the Transferor and, upon their execution and delivery (assuming due
authorization, execution and delivery by the other parties thereto) will be duly
executed and delivered by each of EdLinc and the Transferor and will constitute
a valid and legally binding agreement of each of EdLinc and the Transferor,
enforceable in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws of general applicability relating to or affecting creditors' rights or
general equitable principles. The Transfer Agreement conforms in all material
respects to the descriptions thereof in the Prospectus.
(h) [Reserved]
(i) EdLinc, SLFC and the Transferor each have all requisite
power and authority to execute, deliver and perform its respective obligations
under this Agreement; the execution and delivery of, and the performance by each
of EdLinc, SLFC and the Transferor of its respective obligations under this
Agreement have been duly and validly authorized by EdLinc, SLFC and the
Transferor, respectively, and this Agreement has been duly executed and
delivered by each of them and constitutes the valid and legally binding
agreement of each of them, enforceable against each of them in accordance with
its terms, except as the enforcement may be limited by bankruptcy, insolvency,
moratorium, or other similar laws relating to or affecting creditors' rights
generally or general equitable principles, and except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws or
principles of public policy.
(j) EdLinc has duly adopted EdLinc's Authorizing Resolutions
and has duly approved the execution, delivery and performance of the Basic
Documents, this Agreement, EdLinc's Program Agreements, the furnishing and use
of the information contained in the
-5-
Underwriting Agreement dated September 19, 2002
Prospectus, and the taking of any and all such actions as may be required on the
part of EdLinc to carry out, give effect to and consummate the transactions
contemplated by this Agreement, the Prospectus, the Basic Documents, and
EdLinc's Program Agreements, and all approvals necessary in connection with the
foregoing have been obtained.
(k) SLFC and the Transferor have duly adopted SLFC's
Authorizing Resolutions and the Transferor's Authorizing Resolutions,
respectively, and have duly approved the execution, delivery and performance of
the Basic Documents to which such entity is a party, SLFC's Program Agreements
and the Transferor's Program Agreements, as applicable, the furnishing and use
of the information contained in the Prospectus, and the taking of any and all
such actions as may be required on the part of SLFC and the Transferor to carry
out, give effect to and consummate the transactions contemplated by this
Agreement, the Prospectus, EdLinc's Program Agreements, the Transferor's Program
Agreements, SLFC's Program Agreements and the Basic Documents, and all approvals
necessary in connection with the foregoing have been obtained.
(l) EdLinc, the Transferor and SLFC each has the requisite
power and authority to execute, deliver and perform its respective obligations
under EdLinc's Program Agreements, the Transferor's Program Agreements and
SLFC's Program Agreements to which it is a party. EdLinc's Program Agreements,
the Transferor's Program Agreements and SLFC's Program Agreements have been duly
and validly authorized by EdLinc, the Transferor and SLFC to the extent each is
a party thereto and, assuming due authorization, execution and delivery by the
other parties thereto, duly executed and delivered by EdLinc, the Transferor and
SLFC, respectively, and constitute valid and legally binding agreements of
EdLinc, the Transferor and SLFC, respectively, enforceable in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws of general
applicability affecting creditors' rights or general equitable principles.
EdLinc's Program Agreements, the Transferor's Program Agreements and SLFC's
Program Agreements conform in all material respects to the descriptions thereof
in the Prospectus.
(m) EdLinc is a Delaware corporation and wholly owned
subsidiary of SLFC, is duly organized, validly existing and in good standing
under the laws of the State of Delaware, with the requisite power and authority
to own, lease and operate its properties and to conduct its business as
conducted on the date hereof and as contemplated in the Prospectus and with full
power and authority to own and pledge its assets and to issue the Notes as
described in the Prospectus. EdLinc is duly qualified to conduct its business
and is in good standing in each jurisdiction where the nature of its properties
or the conduct of its business requires such qualification, except where the
failure so to qualify could not have a material adverse effect on its condition
(financial or other), business, prospects, properties, net worth or results of
operations.
(n) SLFC is a corporation duly organized, validly existing and
in good standing under the laws of the State of South Dakota, with the requisite
power and authority to own, lease and operate its properties and to conduct its
business as conducted on the date hereof and as contemplated in the Prospectus,
and is duly qualified to conduct its business and is in good standing in each
jurisdiction where the nature of its properties or the conduct of its business
requires such qualification, except where the failure so to qualify could not
have a material
-6-
Underwriting Agreement dated September 19, 2002
adverse effect on its condition (financial or other), business, prospects,
properties, net worth or results of operations.
(o) The Transferor is a Delaware corporation and wholly owned
subsidiary of SLFC, is duly organized, validly existing and in good standing
under the laws of the State of Delaware, with the requisite power and authority
to own, lease and operate its properties and to conduct its business as
conducted on the date hereof and as contemplated in the Prospectus. The
Transferor is duly qualified to conduct its business and is in good standing in
each jurisdiction where the nature of its properties or the conduct of its
business requires such qualification, except where the failure so to qualify
could not have a material adverse effect on its condition (financial or other),
business, prospects, properties, net worth or results of operations.
(p) There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, or before or by any court, governmental or
public board or body, pending or known to be threatened against or affecting
EdLinc, SLFC or the Transferor or to which EdLinc, SLFC, the Transferor or any
of their respective properties is subject, nor to the best of the knowledge of
EdLinc, SLFC and the Transferor is there any basis therefor, that are not
disclosed in the Prospectus and wherein an unfavorable decision, ruling or
finding would materially adversely affect the validity or enforceability of the
Notes, EdLinc's Authorizing Resolutions, SLFC's Authorizing Resolution, the
Transferor's Authorizing Resolution, the Basic Documents, EdLinc's Program
Agreements, the Transferor's Program Agreements, SLFC's Program Agreements, the
Investment Agreement, this Agreement or any other agreement or instrument to
which EdLinc, SLFC or the Transferor is a party, used or contemplated for use in
the consummation of transactions contemplated by this Agreement, the Basic
Documents, EdLinc's Program Agreements, the Transferor's Program Agreements,
SLFC's Program Agreements, the Investment Agreement or by the Prospectus.
(q) Neither the offer, sale or delivery of the Notes by
EdLinc, nor the execution, delivery or performance of this Agreement, any of the
Basic Documents or any of EdLinc's Program Agreements, the Transferor's Program
Agreements or SLFC's Program Agreements by EdLinc, SLFC or the Transferor, nor
the adoption of the EdLinc's Authorizing Resolutions, SLFC's Authorizing
Resolution or the Transferor's Authorizing Resolution, nor the consummation by
EdLinc, SLFC or the Transferor of the transactions contemplated hereby or
thereby (i) requires or will require any consent, approval, authorization or
other order of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official (except for
compliance with the federal securities laws or Blue Sky laws of various
jurisdictions, the qualification of the Indenture under the Trust Indenture Act
and such other consents, approvals or authorizations as shall have been obtained
prior to the Closing Date), or (ii) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the
organizational documents of EdLinc, SLFC or the Transferor or (iii) conflicts or
will conflict with or constitutes or will constitute a breach of, or a default
under, in any material respect, any material agreement, indenture, lease or
other instrument to which EdLinc, SLFC or the Transferor is a party or by which
EdLinc, SLFC or the Transferor or any of their respective properties may be
bound, or (iv) violates or will violate in any material respect any statute,
law, regulation or filing or judgment, injunction, order or decree applicable to
EdLinc, SLFC or the Transferor or any of their respective properties, or (v)
results or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of
-7-
Underwriting Agreement dated September 19, 2002
EdLinc, SLFC or the Transferor pursuant to the terms of any agreement or
instrument to which any is a party or by which any may be bound or to which any
of their respective properties is subject other than as contemplated by the
Basic Documents.
(r) Neither EdLinc, SLFC nor the Transferor is, and following
the consummation of the transactions contemplated hereby and the use of proceeds
from the Notes as described in the Prospectus will be, an "investment company"
under the Investment Company Act of 1940, as amended (the "1940 Act').
(s) Neither EdLinc, SLFC, the Transferor nor any of their
affiliates does business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075, Florida Statute
and EdLinc, SLFC and the Transferor agrees to comply with such Section if prior
to the completion of the distribution of the Notes it commences doing such
business. EdLinc, SLFC and the Transferor are not, and have not at any time
been, in default in the payment of principal of or interest on any obligations
of EdLinc, SLFC, or the Transferor, respectively.
(t) The representations and warranties made by (i) EdLinc
herein, in the Basic Documents, in EdLinc's Program Agreements and in any
officer's certificate delivered pursuant hereto or thereto and (ii) the
Transferor and SLFC herein, in EdLinc's Program Agreements, in the Transferor's
Program Agreements, in SLFC's Program Agreements, and in any officer's
certificate of the Transferor or SLFC delivered pursuant hereto or thereto, will
be true and correct at the time made and on and as of the Closing Date.
(u) The Indenture will create a first lien upon the Financed
Student Loans and a valid pledge of and perfected security interest in the
entire Trust Estate, subject only to the provisions of the Indenture permitting
the application thereof for the purposes and on the terms and conditions set
forth therein. On the Closing Date, the Trustee will have legal title to the
Trust Estate for the benefit of EdLinc, including without limitation the
Financed Student Loans, and no lien other than the lien of the Indenture will
exist with respect to any asset which constitutes a part of the Trust Estate
securing the Notes.
(v) Neither EdLinc, SFLC or the Transferor nor any agent
acting on any of their behalf has taken or will take any action that might cause
this Agreement or the sale of the Notes to violate Regulations G, T, U, or X of
the Board of Governors of the Federal Reserve System, in each case as in effect,
or as the same may hereafter be in effect, as of the Closing.
(w) Other than as contemplated by this Agreement or as
disclosed in the Prospectus, there is no broker, finder or other party that is
entitled to receive from SLFC or any of its subsidiaries any brokerage or
finder's fee or other fee or commission as a result of any transactions
contemplated by this Agreement.
4. Agreements of EdLinc, SLFC and the Transferor
EdLinc, SLFC and the Transferor agree with the Underwriters as
follows:
-8-
Underwriting Agreement dated September 19, 2002
(a) Prior to the execution of this Agreement, EdLinc has,
pursuant to Rule 424(b) under the Securities Act, prepared and filed a
prospectus and prospectus supplement, properly completed, with the Commission
relating to the Notes. EdLinc will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus and
will not effect such amendment or supplement without the consent of the
Representative prior to the Closing Date, and thereafter will not effect any
such amendment or supplement relating to or affecting the Notes to which the
Representative reasonably objects; provided, however, no consent of the
Representative shall be required in connection with any filing made pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations promulgated thereunder; EdLinc will also advise the
Representative promptly of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for any additional
information; and EdLinc will also advise the Representative promptly of the
effectiveness of the Registration Statement and of any amendment or supplement
to the Registration Statement or the Prospectus, of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or known threat of any proceeding for that purpose,
of the suspension of the qualification of the Notes for offering or sale in any
jurisdiction, and of the initiation or threatening of any proceeding relating to
the offering or sale of the Notes; and EdLinc will use its best efforts to
prevent the issuance of any such stop order or other order preventing or
suspending the use of the Prospectus or suspending the qualification of the
Indenture or the Notes for offering or sale in any jurisdiction and, in the
event of the issuance of any stop order or of any other such order, promptly use
its best efforts to obtain the withdrawal of such order.
(b) If the delivery of a prospectus is required at any time
under the Securities Act after an event has occurred which results in the
Prospectus, as then amended or supplemented, including an untrue statement of a
material fact or omitting to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading, or, if for any other reason it shall be necessary to amend
or supplement the Prospectus to comply with the Securities Act, the Rules and
Regulations or the Trust Indenture Act, EdLinc and SLFC will notify the
Underwriters and, upon the Underwriters' request, prepare and file with the
Commission and furnish, without charge to the Underwriters and to any dealer in
securities, as many copies as the Underwriters may from time to time reasonably
request, an amendment or supplement to such Prospectus which corrects such
statement or omission or amendment that effects such compliance.
(c) EdLinc and SLFC will immediately inform the Representative
(i) of the receipt by EdLinc or SLFC of any communication from the Commission or
any state securities authority concerning the offering or sale of the Notes and
(ii) of the commencement of any lawsuit or proceeding to which EdLinc or SLFC is
a party relating to the offering or sale of the Notes.
(d) EdLinc will furnish to the Underwriters, without charge,
copies of the Registration Statement (at least one copy of which will be signed
and include all documents and exhibits thereto or incorporated by reference
therein), the Prospectus, and all amendments and supplements to such documents
relating to the Notes, in each case in such quantities as the Underwriters may
reasonably request.
-9-
Underwriting Agreement dated September 19, 2002
(e) EdLinc, SLFC and the Transferor will cooperate with the
Underwriters and with its counsel in connection with the qualification of, or
procurement of exemptions with respect to, the Notes for offering and sale by
the Underwriters and by dealers, and with the determination of their eligibility
for investment, under the laws of such jurisdictions as the Underwriters may
designate and will file such consents to service of process or other documents
necessary or appropriate to effect such qualification or exemptions; provided
that in no event shall either the Transferor, SLFC or EdLinc be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
(other than the State of South Dakota if not currently so qualified) or to take
any action which would subject it to service of process in suits, other than
those arising out of the offering or sale of the Notes, in any jurisdiction
where it is not now so subject.
(f) EdLinc, SLFC and the Transferor consent to the use, in
accordance with the securities or Blue Sky laws of such jurisdictions in which
the Notes are offered by the Underwriters and by dealers, of the Prospectus.
(g) To the extent, if any, that the ratings provided with
respect to the Notes by the Rating Agencies are conditional upon the furnishing
of documents or the taking of any other actions by EdLinc, SLFC or the
Transferor, SLFC, EdLinc, SLFC and the Transferor shall cause to be furnished
such documents and such other actions to be taken.
(h) So long as any of the Notes are outstanding, EdLinc, SLFC
or the Transferor will furnish to the Underwriters (i) as soon as available, a
copy of each document relating to EdLinc, SLFC, the Transferor or the Notes
required to be filed with the Commission pursuant to the Exchange Act, or any
order of the Commission thereunder, and (ii) such other information concerning
EdLinc, SLFC or the Transferor, as the Underwriters may request from time to
time.
(i) To make generally available to the Noteholders and the
Underwriters as soon as practicable, a copy of each Monthly Servicing Report (as
defined in the Indenture) required under the Indenture and the Servicing
Agreement, and to file with the Commission on Form 8-K such Monthly Servicing
Reports for at least 12 consecutive months beginning after the effective date of
the Registration Statement (as defined in Rule 158(c) under the Securities Act)
in compliance with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including Rule 158).
(j) If this Agreement shall terminate or shall be terminated
after execution and delivery pursuant to any provisions hereof or if this
Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of EdLinc, SLFC or the Transferor to comply with the terms
or fulfill any of the conditions of this Agreement SLFC agrees to reimburse the
Underwriters for all out-of-pocket expenses (including, without limitation, fees
and expenses of its counsel; costs related to its due diligence investigation of
EdLinc, SLFC and the Transferor; costs of preparing to market and the actual
marketing of the Notes; and costs incurred in the performance of its obligations
hereunder) reasonably incurred by them in their roles as Underwriters, but
without any further obligation on the part of SLFC for loss of profits or
otherwise.
-10-
Underwriting Agreement dated September 19, 2002
(k) The net proceeds from the sale of the Notes hereunder will
be applied substantially in accordance with the description set forth in the
Prospectus. EdLinc, SLFC and the Transferor will not take or omit to take any
action which will in any way cause the proceeds from the sale of the Notes to be
applied in a manner contrary to that provided for in the Prospectus and the
Indenture.
(l) Except as stated in this Agreement and in the Prospectus,
neither EdLinc, the Transferor nor SLFC has taken, nor will any of them take,
and each of them will use their best efforts to cause each of their respective
directors and officers not to take, directly or indirectly, any action designed
to or that might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Notes to facilitate the sale or resale of the
Notes; it being understood that no such action of any Underwriters shall be
deemed to be an action of EdLinc, the Transferor or SLFC.
(m) [Reserved]
(n) Deposits required by the Indenture into the Acquisition
Fund, the Alternative Loan Guarantee Fund and the Reserve Fund shall be made on
the Closing Date.
(o) Other than pursuant to your consent and as permitted by
the Securities Act and the Rules and Regulations, EdLinc, SLFC and the
Transferor will not distribute any prospectus or other offering material in
connection with the offering of the Notes.
5. Indemnification and Contribution
(a) SLFC agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, the Prospectus, or in any amendment or supplement
thereto, or in any application filed under the Blue Sky laws of any jurisdiction
or other document executed by EdLinc or SLFC for that purpose, or arising out of
or based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating to
the Underwriters furnished in writing to EdLinc by or on behalf of any
Underwriter through the Representative expressly for use in connection
therewith. The foregoing indemnity agreement shall be in addition to any
liability which EdLinc or SLFC may otherwise have.
(b) If any action, suit or proceeding shall be brought against
an Underwriter or any person controlling an Underwriter in respect of which
indemnity may be sought against SLFC, such Underwriter or such controlling
person, as the case may be, shall promptly notify the party against whom
indemnification is being sought (the "indemnifying parties"), and such
indemnifying parties shall assume the defense thereof, including the employment
of counsel and
-11-
Underwriting Agreement dated September 19, 2002
payment of all reasonable fees and expenses. The Underwriter or any such
controlling person, as the case may be, shall have the right to employ separate
counsel in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the Underwriter or such controlling person unless (i) the indemnifying parties
have agreed in writing to pay such fees and expenses, (ii) the indemnifying
parties have failed to assume the defense and employ counsel, or (iii) the named
parties to any such action, suit or proceeding (including any impleaded parties)
include both the Underwriter or such controlling person and the indemnifying
parties and the Underwriter or such controlling person shall have been advised
by its counsel that representation of such indemnified party and any
indemnifying party by the same counsel would be inappropriate under applicable
standards of professional conduct (whether or not such representation by the
same counsel has been proposed) due to actual or potential differing interests
between them (in which case the indemnifying party shall not have the right to
assume the defense of such action, suit or proceeding on behalf of the
Underwriter or such controlling person). It is understood, however, that the
indemnifying parties shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
the Underwriter and controlling persons not having actual or potential differing
interests with the Underwriter or among themselves, which firm shall be
designated in writing by the Underwriter, and that all such fees and expense
shall be reimbursed on a monthly basis. The indemnifying parties shall not be
liable for any settlement of any such action, suit or proceeding effected
without their written consent, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, the indemnifying parties agree to indemnify and hold harmless the
Underwriter and any such controlling person from and against any loss, claim,
damage, liability or expense by reason of such settlement or judgment to the
extent provided in paragraph (a).
(c) The Underwriters agree, jointly and severally, to
indemnify and hold harmless EdLinc and SLFC and their respective directors and
officers, and any person who controls EdLinc or SLFC within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the indemnity from SLFC to the Underwriters set forth in paragraph (a)
hereof, but only with respect to information relating to the Underwriters
furnished in writing by or on behalf of the Underwriters through the
Representative expressly for use under the caption "Plan of Distribution" in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus or "Blue Sky" applications. If any action,
suit or proceeding shall be brought against EdLinc or SLFC, any of their
respective directors or officers, or any such controlling person based on the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus and in respect of which indemnity may be
sought against the Underwriters pursuant to this paragraph (c), the Underwriters
shall have the rights and duties given to SLFC by paragraph (b) above (except
that if SLFC shall have assumed the defense thereof, the Underwriters shall not
be required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
Underwriters' expense), and EdLinc and SLFC, their respective directors and
officers, and any such controlling person shall have the rights and duties given
to the Underwriters by paragraph
-12-
Underwriting Agreement dated September 19, 2002
(b) above. The foregoing indemnity agreement shall be in addition to any
liability which the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by EdLinc
and SLFC on the one hand and the Underwriters on the other hand from the
offering of the Notes, or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of EdLinc and SLFC on the one hand and the Underwriters on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by EdLinc and SLFC on
the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Notes (before
deducting expenses) received by EdLinc and SLFC bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault of
EdLinc and SLFC on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by EdLinc or SLFC on the one
hand or by the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) EdLinc, SLFC and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 5 were determined
by a pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 5, the Underwriters
shall not be required to contribute any amount in excess of the amount received
by the Underwriters over the price paid by the Underwriters for the Notes
purchased by them and distributed to the public less the amount of any damages
which the Underwriters have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 5 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 5 and the
representations and warranties of EdLinc, SLFC, the Transferor and the
Underwriters set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any
-13-
Underwriting Agreement dated September 19, 2002
investigation made by or on behalf of the Underwriters, EdLinc, SLFC or the
Transferor or any person controlling any of them or their respective directors
or officers, (ii) acceptance of any Notes and payment therefor hereunder, and
(iii) any termination of this Agreement. A successor to the Underwriters, EdLinc
or SLFC or any person controlling any of them or their respective directors or
officers, shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 5.
6. Conditions of the Underwriters' Obligations
The obligations of the Underwriters to purchase the Notes
hereunder are subject to the following conditions:
(a) All actions required to be taken and all filings required
to be made by EdLinc, SLFC or the Transferor under the Securities Act and the
Trust Indenture Act prior to the sale of the Notes shall have been duly taken or
made. At and prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement or the sale of the Notes or the
qualification of the Indenture shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of EdLinc, SLFC,
the Transferor or the Underwriters, shall be contemplated by the Commission or
any Blue Sky Authorities.
(b) Any requests to the Commission for inclusion of additional
or supplemental information in the Registration Statement or the Prospectus
shall have been complied with by EdLinc, SLFC and the Transferor to your
reasonable satisfaction.
(c) Since the respective dates as of which information is
given in the Registration Statement (or any amendment or supplement thereto),
except as may otherwise be stated therein or contemplated thereby, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting the condition (financial or other) or net worth of
EdLinc, SLFC or the Transferor not contemplated by the Registration Statement,
which in the opinion of the Representative, would materially adversely affect
the market for the Notes, or (ii) any event or development which makes any
statement made in the Registration Statement or Prospectus untrue or which, in
the opinion of EdLinc and its counsel SLFC and its counsel, the Transferor and
its counsel or the Underwriters and their counsel, requires the filing of any
amendment to or change in the Registration Statement or Prospectus in order to
state a material fact required by any law to be stated therein or necessary in
order to make the statements therein not misleading, if amending or
supplementing the Registration Statement or Prospectus to reflect such event or
development would, in the opinion of the Underwriters, materially adversely
affect the market for the Notes.
(d) At the time of the Closing, (i) the Notes, each of the
Basic Documents, EdLinc's Program Agreements, the Transferor's Program
Agreements, SLFC's Program Agreements, the Investment Agreement, the Trustee's
Program Agreements, the Transferor Trustee's Program Agreements and this
Agreement shall have been duly authorized, executed and delivered, and in full
force and effect, and, in the case of the Notes, authenticated; (ii) EdLinc's
Authorizing Resolutions, SLFC's Authorizing Resolution and the Transferor's
Authorizing Resolution shall have been duly adopted by EdLinc, SLFC and the
Transferor, as applicable, and shall be in full force and effect; (iii) the
contracts between the United States
-14-
Underwriting Agreement dated September 19, 2002
Secretary of Education and each of the Guarantee Agencies shall be duly
authorized, executed and delivered and in full force and effect; (iv) the
documents referred to in clauses (i) through (iii) above shall be in forms
satisfactory to the Representative and shall not have been amended, modified or
supplemented from the respective forms heretofore delivered to the
Representative, except as may have been agreed to in writing by the
Representative, and EdLinc, SLFC and the Transferor shall have duly adopted and
there shall be in full force and effect such additional resolutions and
agreements, as shall, in the opinion of Xxxxxx & Xxxxxxx LLP, Minneapolis,
Minnesota, be necessary in connection with the transactions contemplated hereby;
and (v) EdLinc, SLFC, the Transferor, the Trustee, the Auction Agent, the
Broker-Dealers, the Investment Agreement Provider, the Transferor's Trustee, the
EdLinc 1998 Indenture Trustee, ACS, EASCI, GLELSI and the Guarantee Agencies
shall perform or have performed all their respective obligations required under
or specified in this Agreement, the Basic Documents, the Investment Agreement,
EdLinc's Authorizing Resolutions, SLFC's Authorizing Resolution, the
Transferor's Authorizing Resolution, EdLinc's Program Agreements, the
Transferor's Program Agreements, SLFC's Program Agreements and the Trustee's
Program Agreements, to be performed simultaneously with or prior to Closing.
(e) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxx & Whitney LLP, Special Counsel to EdLinc and the
Transferor, dated the Closing Date and addressed to the Underwriters, in form
and scope satisfactory to the Representative and its counsel.
(f) The Underwriters shall have received on the Closing Date
the approving opinion of Xxxxxx & Xxxxxxx LLP, dated the Closing Date and in
form and scope satisfactory to the Representative and its counsel, and a letter
addressed to the Underwriters to the effect that the Underwriters may rely on
such opinion and consenting to the references to it in the Prospectus.
(g) The Underwriter shall have received on the Closing Date an
opinion of Xxxxxx X. Xxxx, counsel for EdLinc and SLFC, dated the Closing Date
and addressed to the Underwriter, in form and scope satisfactory to the
Underwriter and its counsel.
(h) The Underwriters shall have received on the Closing Date
an opinion of Davenport, Evans, Xxxxxxx & Xxxxx, counsel for the Trustee, the
EdLinc 1998 Indenture Trustee and the Transferor's Trustee, dated the Closing
Date and addressed to the Underwriters, in form and scope satisfactory to the
Representative and its counsel.
(i) [Reserved]
(j) The Underwriters shall have received on the Closing Date
opinions of counsel for the Investment Agreement Providers, dated the Closing
Date and addressed to the Underwriters, in form and scope satisfactory to the
Representative and its counsel.
(k) The Underwriter shall have received on the Closing Date
opinions of counsel for such Guarantee Agencies, if any, specified by the
Representative, each dated the Closing Date and addressed to the Underwriters,
in form and scope satisfactory to the Representative and its counsel.
-15-
Underwriting Agreement dated September 19, 2002
(l) The Underwriters shall have received on the Closing Date
an opinion or opinions of Xxxxx & Lardner, counsel for the Underwriters, dated
the Closing Date, and addressed to the Underwriters, in form and scope
satisfactory to the Representative.
(m) The Underwriters shall have received on the Closing Date
from Xxxx Xxxxxx LLP, certified public accountants, a comfort letter dated the
Closing Date, and in form and substance satisfactory to the Representative, to
the effect that they have carried out certain specified procedures, not
constituting an audit, with respect to certain financial information pertaining
to EdLinc and to the Financed Student Loans and setting forth the results of
such specified procedures.
(n) All the representations and warranties of EdLinc, SLFC and
the Transferor contained in this Agreement, EdLinc's Program Agreements, the
Transferor's Program Agreements, SLFC's Program Agreements and the Basic
Documents shall be true and correct in all material respects on and as of the
date hereof and on and as of the Closing Date as if made on and as of the
Closing Date.
(o) EdLinc, SLFC and the Transferor each shall have performed
or complied with any of its agreements herein contained and required to be
performed or complied with by it hereunder at or prior to the Closing Date.
(p) The Underwriters shall have received by instrument dated
the Closing Date (at the option of the Representative), in addition to the
opinions referred to in clauses (d) through (k) of this Section 6, the right to
rely on opinions provided by such counsel and all other counsel under the terms
of the Basic Documents or to Xxxxx'x and Fitch.
(q) The Underwriters shall have received evidence satisfactory
to them that Xxxxx'x and Fitch have rated (i) the Series 2002-1 Senior Notes
"Aaa" and "AAA", respectively, and (ii) the Series 2002-1 Xxxxxxxxxxx Xxxxx,
"X0" and "A", respectively, and there has not been any announcement by Xxxxx'x
or Fitch that (Y) it is downgrading any of its ratings assigned to the Notes or
(Z) it is reviewing its ratings assigned to the Notes with a view to possible
downgrading, or with negative implications, or direction not determined.
(r) The Underwriters shall have received a certificate of the
President of EdLinc, SLFC and the Transferor, as applicable, affirming the
matters specified in Sections 6(n) through (q) and such other matters as the
Representative may reasonably request.
(s) The Underwriters shall have received (i) a certificate or
certificates from the Secretary or Assistant Secretary of each of EdLinc, SLFC
and the Transferor certifying and attaching copies of (A) organizational
documents, (B) resolutions authorizing this Agreement, the Basic Documents, the
Investment Agreement, EdLinc's Program Agreements, the Transferor's Program
Agreements, SLFC's Program Agreements and the transactions contemplated hereby
and thereby, (C) all written communications, and any memoranda relating to
conversations between such entity, its officers and employees or, to its
knowledge, its counsel, accountants or other representatives, on the one hand,
and the Commission or its staff, on the other hand, relating to the Registration
Statement and certifying the incumbency and signature of the officers executing
this Agreement, the Basic Documents, EdLinc's Program Agreements, the
-16-
Underwriting Agreement dated September 19, 2002
Transferor's Program Agreements and SLFC's Program Agreements; and (ii)
certificates of legal existence and good standing with respect to SLFC from the
Secretary of State of the State of South Dakota and with respect to EdLinc and
the Transferor from the Secretary of State of the State of Delaware, dated as of
the Closing Date or such earlier date within two weeks of the Closing Date.
(t) The Underwriters shall have received a certificate of the
Trustee, signed by an officer of the Trustee, dated the Closing Date, (i) to the
effect that the Trustee received each of the items enumerated in Section 3.2 of
the Indenture; (ii) containing permission to include the information concerning
the Trustee in the Prospectus and to use the Basic Documents, the Investment
Agreement and the Trustee's Program Agreements in connection with the public
offering of the Notes; (iii) representing that (A) the Basic Documents to which
the Trustee is a party, the Investment Agreement and the Trustee's Program
Agreements, have been duly authorized, executed and delivered on behalf of the
Trustee and are in full force and effect, (B) such agreements may be used in
connection with the public offering of the Notes, (C) the Trustee is an
"eligible lender" under the Higher Education Act of 1965, as amended, (D) no
litigation is pending or, to his or her knowledge, threatened in any court to
restrain or enjoin the issuance or delivery of any of the Notes, or the
collection of revenues pledged or to be pledged to pay the principal of, and
interest on, the Notes, or in any way contesting or affecting the validity or
enforceability of the Notes, the Basic Documents, the Investment Agreement, the
Trustee's Program Agreements or the Underwriting Agreement or the collection of
said revenues or the pledge thereof, (E) there is no litigation pending or to
his or her knowledge threatened against the Trustee, or involving any of the
property or assets under the control of the Trustee, which involves the
possibility of any judgment or liability which may materially adversely affect
the security for the Notes or the collection of revenues pledged or to be
pledged to pay the principal of, and interest on, the Notes or materially
adversely affect the Trustee or the Program (but in lieu of such certificate the
Representative may in its sole discretion accept an opinion of the Trustee's
counsel as to the matters referred to above, acceptable to the Representative in
form and substance, that in their opinion the issues raised in any such pending
or threatened litigation are without substance or that the contentions of the
plaintiffs therein are without merit), and (F) he or she has carefully examined
the Prospectus with respect to references to the Trustee and that, in his or her
opinion, with respect to references to the Trustee, as of the date of the
Prospectus and at all times subsequent through and including the Closing Date,
the Prospectus did not and does not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(u) The Underwriters shall have received certified copies of
the Basic Documents, EdLinc's Authorizing Resolutions, SLFC's Authorizing
Resolution, the Transferor's Authorizing Resolution, EdLinc's Program
Agreements, the Transferor's Program Agreements, SLFC's Program Agreements, in
each case certified as of the Closing Date by each corporation's respective
corporate Secretary to be a true and correct copy thereof and in full force and
effect.
(v) The Underwriters shall have received certified copies of
the Trustee's Program Agreements and the Investment Agreement, in each case
certified as of the Closing Date by a duly authorized officer of the Trustee to
be a true and correct copy thereof and in full force and effect, and certified
copies of the Broker-Dealer Agreements, in each case certified as
-17-
Underwriting Agreement dated September 19, 2002
of the Closing Date by a duly authorized officer of the respective the
Broker-Dealers to be a true and correct copy thereof and in full force and
effect.
(w) The Underwriters shall have received certificates of the
Transferor's Trustee and the EdLinc 1998 Indenture Trustee, signed by an officer
of each such trustee, dated the Closing Date, (i) containing permission to
include the information concerning the Transferor's Trustee and the EdLinc 1998
Indenture Trustee, as applicable, in the Prospectus and to use the Transferor
Trustee's Program Agreements and the EdLinc 1998 Indenture Trustee's Program
Agreements, as applicable, in connection with the public offering of the Notes;
(ii) representing that (A) the Transferor Trustee's Program Agreements and the
EdLinc 1998 Indenture Trustee's Program Agreements have been duly authorized,
executed and delivered on behalf of the Transferor's Trustee and the EdLinc 1998
Indenture Trustee, as applicable, and each is in full force and effect, (B) such
agreements may be used in connection with the public offering of the Notes, (C)
the Transferor's Trustee and the EdLinc 1998 Indenture Trustee is an "eligible
lender" under the Higher Education Act of 1965, as amended, (D) no litigation is
pending or, to his or her knowledge, threatened in any court in any way
contesting or affecting the validity or enforceability of the Transferor
Trustee's Program Agreements and the EdLinc 1998 Indenture Trustee's Program
Agreements, (E) there is no litigation pending or to his or her knowledge
threatened against the Transferor's Trustee or the EdLinc 1998 Indenture
Trustee, or involving any of the property or assets under the control of the
Transferor's Trustee or the EdLinc 1998 Indenture Trustee, which involves the
possibility of any judgment or liability which may materially adversely affect
the security for the Notes or materially adversely affect the Transferor's
Trustee or the EdLinc 1998 Indenture Trustee or the Program (but in lieu of such
certificate the Representative may in its sole discretion accept an opinion of
the Transferor's Trustee counsel or the EdLinc 1998 Indenture Trustee's counsel
as to the matters referred to above, acceptable to the Representative in form
and substance, that in their opinion the issues raised in any such pending or
threatened litigation are without substance or that the contentions of the
plaintiffs therein are without merit), and (F) he or she has carefully examined
the Prospectus with respect to references to the Transferor's Trustee and the
EdLinc 1998 Indenture Trustee, as applicable, and that, in his or her opinion,
with respect to references to the Transferor's Trustee and the EdLinc 1998
Indenture Trustee, as applicable, as of the date of the Prospectus and at all
times subsequent through and including the Closing Date, the Prospectus did not
and does not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(x) The Underwriters shall have received on the Closing Date
certificates of officers for such Guarantee Agencies and Sub-servicers, if any,
specified by the Representative, each dated the Closing Date, containing
permission to include the information concerning that entity in the Prospectus
and covering such other matters specified by the Representative, in form and
scope satisfactory to the Representative and its counsel.
(y) The Underwriters shall have received such additional
certificates, instruments and other documents as shall be requested by the
Representative, including, without limitation, from EdLinc, SLFC, the
Transferor, the Trustee, the Transferor's Trustee, the EdLinc 1998 Indenture
Trustee, Sub-Servicers, the Auction Agent, the Broker-Dealers, the Investment
Agreement Provider, and such Guarantee Agencies, if any, specified by the
Representative.
-18-
Underwriting Agreement dated September 19, 2002
All opinions, certificates, letters and other documents
referred in this Section 6 will be in compliance with the provisions hereof only
if they are reasonably satisfactory in form and substance to the Representative
and counsel for the Underwriters.
Any certificate or document signed by any officer of EdLinc,
SLFC or the Transferor and delivered to the Underwriters, or to counsel for the
Underwriters, shall be deemed a representation and warranty by EdLinc, SLFC or
the Transferor, respectively, to the Underwriters as to the statements made
therein.
If these conditions are not satisfied, or if the obligations
of the Underwriters shall be terminated for any reason permitted by this
Agreement, this Agreement shall terminate and neither the Underwriters nor
EdLinc, SLFC or the Transferor shall be under further obligation hereunder,
except that the respective obligations of EdLinc, the Transferor and SLFC and
the Underwriters for the payment of expenses, as provided in Section 7 hereof,
shall continue in full force and effect.
7. Expenses
EdLinc and SLFC, jointly and severally, agree to pay or to
otherwise cause the payment of the following costs and expenses and all other
costs and expenses incident to the performance by them and the Transferor of
their respective obligations hereunder: (i) the preparation, printing or
reproduction and distribution of any Registration Statement, each Prospectus and
each amendment or supplement thereto and each other Basic Document, EdLinc's
Program Agreement, Transferor's Program Agreements, SLFC's Program Agreement,
and Trustee's Program Agreement, and the Investment Agreement; (ii) the
preparation, printing, authentication, issuance and delivery of definitive
certificates for the Notes; (iii) the qualification of the Indenture under the
Trust Indenture Act; (iv) the fees and disbursements of (A) counsel and Special
Counsel for EdLinc, SLFC and the Transferor, (B) the Trustee, the Transferor's
Trustee, the EdLinc 1998 Indenture Trustee and their respective counsel, (C) the
Auction Agent and its counsel, (D) any Guarantee Agencies and Sub-servicers and
their respective counsel, (E) the Investment Agreement Provider and its counsel,
(F) the Depository Trust Company in connection with the book-entry registration
of the Notes, (G) Xxxx Xxxxxx LLP, accountants for EdLinc, SLFC and the
Transferor and issuer of the specified procedures letter referenced in Section
6(m) hereof, and (H) counsel for the Underwriters as set forth in Sections 1 and
2 hereof; (v) the fees charged by Xxxxx'x and Fitch for rating the Notes; (vi)
the Blue Sky filing fees and expenses; and (vii) the cost of any advertising
expenses requested or undertaken by EdLinc, SLFC or the Transferor and incurred
in connection with the public offering of the Notes. The Underwriters shall be
under no obligation to pay any expense incident to the performance of the
obligations of EdLinc, SLFC or the Transferor hereunder.
The Underwriters shall pay the expenses incurred by it in
connection with its public offering and distribution of the Notes (except as
otherwise provided in the preceding paragraph).
8. Nonpetition Covenant
-19-
Underwriting Agreement dated September 19, 2002
Each Underwriter covenants and agrees that it will not at any
time institute against EdLinc or the Transferor, or join in any institution
against EdLinc or the Transferor of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law in connection with
any obligation relating to this Agreement.
9. Effective Date of Agreement
This Agreement shall become effective upon the execution and
delivery hereof by all the parties hereto.
10. Representations, Warranties and Agreements to Survive
Delivery
All representations, warranties and agreements contained in
the Agreement or contained in certificates of officers of EdLinc, SFLC or the
Transferor submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the
Underwriters or any officer, director, or controlling person of the
Underwriters, or by or on behalf of EdLinc, SFLC or the Transferor, and shall
survive delivery of the Notes to the Underwriters. The expense payment
provisions set forth in Sections 4(j) and 7 hereof and the indemnification and
contribution provisions in Section 5 hereof also shall survive delivery of the
Notes to the Underwriters and any termination or cancellation of this Agreement.
11. Termination of Agreement
This Agreement shall be subject to termination in the absolute
discretion of the Representative, without liability on the part of the
Underwriters to EdLinc, SLFC or the Transferor, by notice to EdLinc, SLFC and
the Transferor, if on or prior to the Closing Date (i) trading in securities
generally on the New York Stock Exchange, American Stock Exchange or the Nasdaq
National Market shall have been suspended or materially limited; (ii) a general
moratorium on commercial banking activities in New York, Delaware or South
Dakota shall have been declared by either federal or state authorities; (iii)
there shall have occurred any outbreak or escalation of hostilities or other
international or domestic calamity, crisis or change in political, financial or
economic conditions, including any act of terrorism, the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representative, impracticable or inadvisable to commence or continue the
offering of the Notes on the terms set forth in the Prospectus or to enforce
contracts for the resale of the Notes by the Underwriters; (iv) legislation
shall be introduced in or enacted by the Congress of the United States or
adopted by either the House of Representatives or the Senate or approved by a
Committee thereof, or a decision by a court of the United States or the Tax
Court of the United States shall be rendered, or a ruling, regulation, proposed
regulation or official statement by or on behalf of the Treasury Department of
the United States, the Internal Revenue Service or any other governmental agency
shall be made, an announcement by a member of Congress shall be made relating to
legislation which has been introduced or which is proposed to be introduced, or
any other event shall occur, with respect to federal taxation upon revenues or
other income of the general character expected to be pledged under the Indenture
or upon interest received on securities of the general character of the Notes,
or which would have the effect of changing,
-20-
Underwriting Agreement dated September 19, 2002
directly or indirectly, the federal income tax consequences of interest on
securities of the general character of the Notes in the hands of the holders
thereof, which in the opinion of the Representative materially and adversely
affects the market price of the Notes; (v) legislation shall be enacted by the
States of South Dakota or Delaware, or a decision by a court of competent
jurisdiction of the States of South Dakota or Delaware or any administrative
tribunal of the States of South Dakota or Delaware or other governmental agency
or department thereof shall be rendered with respect to taxation by the States
of South Dakota or Delaware or any of their respective political subdivisions
upon revenues or other income of the general character expected to be pledged
under the Indenture or upon interest received on securities of the general
character of the Notes, or which would have the effect the changing, directly or
indirectly, the tax consequences under the States of South Dakota or Delaware
tax laws of interest on securities of the general character of the Notes in the
hands of the holders thereof, which in the opinion of the Representative
materially affects the market price of the Notes; (vi) additional material
restrictions not in force as of the date hereof shall have been imposed upon
trading in securities of the general character of the Notes by any governmental
authority or by any national securities exchange; (vii) a default shall have
occurred in the payment of principal or interest on outstanding obligations of
EdLinc, SLFC or the Transferor, the State of South Dakota, or any agency or
authority thereof, which in the opinion of the Representative materially and
adversely affects the market for the Notes; or (vii) any rating of the Notes
shall have been changed or withdrawn by Xxxxx'x or Fitch, or Xxxxx'x or Fitch
shall have announced that it is considering a change or withdrawal of such
rating and such action, in the opinion of the Representative, shall materially
and adversely affect the market for the Notes. Notice of such termination may be
given to EdLinc, SLFC and the Transferor, by telegram, telecopy or telephone and
shall be subsequently confirmed by letter.
12. Information Furnished by the Underwriters
The statements set forth under the heading "Underwriting" in
the Prospectus Supplement dated September 12, 2002 (the "Prospectus Supplement")
constitute the only information furnished by or on behalf of the Underwriters as
such information is referred to in Sections 3(b) and 5 hereof, and each
Underwriter confirms that such statements relating to such Underwriter are
correct.
13. Miscellaneous
Except as otherwise provided in Sections 4 and 11 hereof,
notice given pursuant to any provision of this Agreement shall be in writing and
shall be delivered (i) if to EdLinc, SLFC or the Transferor, at 000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx, Xxxxx Xxxxxx 00000, Attention: A. Norgrin
Xxxxxxxxx, (ii) if to the Underwriters, to Xxxxxxx Xxxxx Xxxxxx Inc., 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx X. Xxxxx.
This Agreement has been and is made solely for the benefit of,
and shall be binding upon, the Underwriters, the Transferor, SLFC, EdLinc, their
respective directors, officers, trustees and controlling persons referred to in
Section 5 hereof and their respective successors and assigns, to the extent
provided herein, and no other person shall acquire or have any right under or by
virtue of this Agreement. Neither the term "successor" nor the term
-21-
Underwriting Agreement dated September 19, 2002
"successors and assigns" as used in this Agreement shall include a purchaser
from the Underwriters of any of the Notes in his status as such purchaser.
14. Applicable Law; Counterparts; Headings
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York without giving effect to the
choice of laws or conflict of laws principles thereof.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof or
thereof shall have been executed and delivered on behalf of each party hereto.
The headings of the Sections of this Agreement are inserted
for convenience only and shall not be deemed to be part hereof.
[The remainder of this page is intentionally left blank.]
-22-
Underwriting Agreement dated September 19, 2002
Please confirm that the foregoing correctly sets forth the
agreement among EdLinc, SLFC, the Transferor and the Underwriters.
Very truly yours,
EDUCATION LOANS INCORPORATED
("EdLinc")
By /s/ A. Norgrin Xxxxxxxxx
---------------------------------------------
Name: A. Norgrin Xxxxxxxxx
Title: President
STUDENT LOAN FINANCE CORPORATION
("SLFC")
By /s/ A. Norgrin Xxxxxxxxx
---------------------------------------------
Name: A. Norgrin Xxxxxxxxx
Title: President
GOAL FUNDING, INC.
(the "Transferor")
By /s/ A. Norgrin Xxxxxxxxx
---------------------------------------------
Name: A. Norgrin Xxxxxxxxx
Title: President
Confirmed as of the date first above mentioned.
XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
-23-
Underwriting Agreement dated September 19, 2002
APPENDIX A
Initial Aggregate Underwriting Initial
Series Principal Amount Maturity Date Purchase Price Discount Interest Rate
------ ---------------- ----------------- -------------- -------------- -------------
2002-1A $ 82,700,000 December 1, 2035 99.567% 0.433% 1.88%
2002-1B 82,700,000 December 1, 2035 99.567 0.433 1.88%
2002-1C 24,500,000 December 1, 2035 99.567 0.433 2.05%
------------
Total $189,900,000 $189,078,000 $822,000
-24-
Underwriting Agreement dated September 19, 0000
XXXXXXXX X
CERTAIN DEFINITIONS
Capitalized terms used but not defined in this Appendix B or
elsewhere in this Agreement have the respective meanings ascribed thereto in the
Supplemental Indenture.
"ACS" means ACS (formerly AFSA Data Corporation), a Delaware
corporation and a wholly owned subsidiary of Affiliated Computer Services, Inc.
"ACS Bailment Agreement" means the Bailment Agreement, dated
as of December 1, 1999 among ACS, the Trustee and Edlinc.
"ACS Sub-servicing Agreement" means the Secondary Market FFEL
Servicing Agreement, dated as of February 1, 1999, between ACS and SLFC, as
amended.
"Bailment Agreements" means the SLFC Bailment Agreement, the
ACS Bailment Agreement, the EASCI Bailment Agreement and the GLELSI Bailment
Agreement.
"Basic Documents" means the Indenture, the Supplemental
Indenture, the Transfer Agreement, the Auction Agent Agreement, the
Broker-Dealer Agreements, the Servicing Agreement, the Bailment Agreements, the
Joint Sharing Agreement and the Letter of Representations.
"EASCI" means Educational Assistance Service Company, Inc., a
South Dakota corporation and a wholly owned subsidiary of Education Assistance
Corporation, a South Dakota nonprofit corporation.
"EASCI Bailment Agreement" means the Bailment Agreement, dated
as of February 1, 2002 among EASCI, the Trustee and Edlinc.
"EASCI Sub-servicing Agreement" means the Agreement, dated as
of December 31, 2001, between EASCI and SLFC, as amended.
"EdLinc's Authorizing Resolutions" means the Resolutions of
EdLinc's board of directors, adopting, accepting, ratifying and approving:
1. the Basic Documents;
2. this Agreement and the Prospectus;
3. one or more investment agreements (individually and
collectively the "Investment Agreement") between the
Trustee and one or more parties meeting the requirements of
the Indenture (individually and collectively the
"Investment Agreement Provider");
4. the Transferor's Student Loan Purchase Agreements; and
5. EdLinc's Program Agreements.
-25-
Underwriting Agreement dated September 19, 2002
"EdLinc 1998 Indenture" means the Indenture of Trust, dated as
of February 1, 1998, between EdLinc and the EdLinc 1998 Indenture Trustee, as
amended and supplemented.
"EdLinc 1998 Indenture Trustee" means U.S. Bank National
Association, as trustee under the EdLinc 1998 Indenture.
"EdLinc 1998 Indenture Trustee Joint Sharing Agreement" means
the Joint Sharing Agreement, dated as of December 1, 1999, among EdLinc, the
Trustee and the EdLinc 1998 Indenture Trustee.
"EdLinc 1998 Indenture Trustee's Program Agreements" means the
EdLinc 0000 Xxxxxxxxx and the EdLinc 1998 Indenture Trustee Joint Sharing
Agreement.
"EdLinc's Program Agreements" means the Bailment Agreements,
the Joint Sharing Agreements, the Servicing Agreement, the EdLinc 1998 Indenture
and the EdLinc Student Loan Purchase Agreements.
"EdLinc's Student Loan Purchase Agreements" means the Student
Loan Purchase Agreements between EdLinc and the eligible lenders described in
Exhibit H-1 to the Supplemental Indenture and the forms of Student Loan Purchase
Agreements.
"GLHESC" means Great Lakes Higher Education Services
Corporation, a Wisconsin nonprofit corporation.
"GLELSI" means Great Lakes Educational Loan Services, Inc., a
Wisconsin corporation and a wholly owned subsidiary of GLHESC.
"GLELSI Bailment Agreement" means the Bailment Agreement,
dated as of February 1, 2002 among GLELSI, the Trustee and Edlinc.
"GLELSI Sub-servicing Agreement" means the Student Loan
Origination and Servicing Agreement, dated as of November 20, 1998, between
GLELSI and SLFC, as amended.
"Goal Funding Indenture" means the Indenture, dated as of
December 1, 2001, among the Transferor's Trustee, the Transferor, Market Street
Funding Corporation, as the conduit lender, certain financial institutions
identified therein, as the alternative lenders, PNC Bank, National Association,
as the administrative agent, and Ambac Assurance Corporation, as the surety bond
provider, as amended and supplemented.
"Joint Sharing Agreement" means, collectively, the EdLinc 1998
Indenture Trustee Joint Sharing Agreement and the Transferor's Trustee Joint
Sharing Agreement.
"Letter of Representations" means the Blanket Issuer Letter of
Representations, dated as of September 12, 2002, from EdLinc to The Depository
Trust Company ("DTC"), containing certain representations to induce DTC to
accept the Notes for deposit.
"Loan Purchase Contracts" means, individually and
collectively, EdLinc's Student Loan Purchase Agreements and the Transferor's
Student Loan Purchase Agreements.
-26-
Underwriting Agreement dated September 19, 2002
"Servicing Agreement" means the Servicing and Administration
Agreement, dated as of December 1, 1999, as amended by Amendment No. 1 to
Servicing and Administration Agreement, dated as of December 1, 2000, and
Amendment No. 2 to Servicing and Administration Agreement, dated as of July 1,
2001, each among EdLinc, SLFC and the Trustee.
"SLFC's Authorizing Resolutions" means the Resolutions of the
SLFC's board of directors, adopting, accepting, ratifying and approving:
1. the Basic Documents, this Agreement and the Prospectus;
2. SLFC's Program Agreements; and,
3. EdLinc's Program Agreements.
"SLFC Bailment Agreement" means the Bailment Agreement, dated
as of December 1, 1999, as amended by Amendment No. 1 to Bailment Agreement,
dated as of July 1, 2001, each among SLFC, the Trustee and Edlinc.
"SLFC's Program Agreements" means the Servicing Agreement, the
Sub-servicing Agreements and the SLFC Bailment Agreement.
"Sub-servicers" means ACS, EASCI and GLELSI.
"Sub-servicing Agreements" means the ACS Sub-servicing
Agreement, the EASCI Sub-servicing Agreement and the GLELSI Sub-Servicing
Agreement.
"Transferor's Authorizing Resolutions" means the Resolutions
of the Transferor's board of directors, adopting, accepting, ratifying and
approving:
1. this Agreement and the Prospectus; and,
2. the Transferor's Program Agreements.
"Transferor's Program Agreements" means the Transfer
Agreement, the Goal Funding Indenture, the Transferor's Trustee Joint Sharing
Agreement and the Transferor's Student Loan Purchase Agreements.
"Transferor's Trustee Joint Sharing Agreement" means the Joint
Sharing Agreement, dated as of December 14, 2001, among EdLinc, the Transferor,
the Trustee and the Transferor's Trustee.
"Transferor's Student Loan Purchase Agreements" means the
Student Loan Purchase Agreements between the Transferor and the eligible lenders
described in Exhibit H-2 to the Supplemental Indenture.
"Transferor's Trustee" means U.S. Bank National Association,
as trustee under the Goal Funding Indenture.
-27-
Underwriting Agreement dated September 19, 2002
"Transferor's Trustee's Program Agreements" means the Goal
Funding Indenture, the Transfer Agreement and the Transferor's Trustee Joint
Sharing Agreement.
"Trustee's Program Agreements" means the Guarantee Agreements.
-28-
