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EXHIBIT 1.3
SLM FUNDING CORPORATION
STUDENT LOAN-BACKED NOTES
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UNDERWRITING AGREEMENT
September 16, 1996
X.X. XXXXXX SECURITIES INC.
00 XXXX XXXXXX
XXX XXXX, XXX XXXX 00000
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 (such firms
constituting the "Underwriters" 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
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,
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among other things, educational student loans to students and/or parents of
dependent students ("Student Loans").
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 Corporation, 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"), will enter into an
Administration Agreement with the Eligible Lender Trustee, the Servicer, the
Company, the Trust and the Indenture Trustee with respect to the related
Student Loans.
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 Underwriters of such Securities, for whom the firms designated
as representatives of the Underwriters 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 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 Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the Representatives of
such Underwriters 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
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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. 333-2502),
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(a) under the Act, is hereinafter called a "Preliminary Prospectus;"
the various parts of such registration statement, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of the
registration statement became effective but excluding Form T-1, each as
amended at the time such part of the registration statement became
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities, 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
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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 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;
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(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
Mae 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 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 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;
(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
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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 under state securities or Blue Sky
laws in connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(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 Securities," 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
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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, 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) Ernst & Young LLP, who have certified certain financial
statements of Xxxxxx Xxx, 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 Administration Agreement, the Company's representations
and warranties in the related Sale Agreement 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 Xxx 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.
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3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of the Underwriters' Securities, the several Underwriters propose to offer such
Underwriters' Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
The Company may specify in Schedule II to the Pricing Agreement
applicable to any Designated Securities that the Underwriters are authorized to
solicit offers to purchase Designated Securities from the Company pursuant to
delayed delivery contracts (herein called "Delayed Delivery Contracts"),
substantially in the form of Annex III attached hereto but with such changes
therein as the Representatives and the Company may authorize or approve. If so
specified, the Underwriters will endeavor to make such arrangements, and as
compensation therefor the Company will pay to the Representatives, for the
accounts of the Underwriters, at the Time of Delivery, such commission, if any,
as may be set forth in such Pricing Agreement. Delayed Delivery Contracts, if
any, are to be with investors of the types described in the Prospectus and
subject to other conditions therein set forth. The Underwriters will not have
any responsibility with respect to the validity or performance of any Delayed
Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Designated Securities to be purchased by each Underwriter
as set forth in Schedule I to the Pricing Agreement applicable to such
Designated Securities shall be, in each case, the principal amount of Contract
Securities which the Company has been advised by the Representatives have been
attributed to such Underwriter, provided that, if the Company has not been so
advised, the amount of Contract Securities to be so deducted shall be, in each
case, that proportion of Contract Securities which the principal amount of
Designated Securities to be purchased by such Underwriter under such Pricing
Agreement bears to the total principal amount of the Designated Securities
(rounded as the Representatives may determine). The total principal amount of
Underwriters' Securities to be purchased by all the Underwriters pursuant to
such Pricing Agreement shall be the total principal amount of Designated
Securities set forth in Schedule I to such Pricing Agreement less the principal
amount of the Contract Securities. The Company will deliver to the
Representatives not later than 3:30 p.m., New York City time, on the third
business day preceding the Time of Delivery specified in the applicable Pricing
Agreement (or such other time and date as the Representatives and the Company
may agree upon in writing), a written notice setting forth the principal amount
of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by wire
transfer or by certified or official bank check or checks, payable to the order
of the Company in the funds specified in such Pricing Agreement, all in the
manner and at the place and time and
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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 Mae 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 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 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;
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(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
(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
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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; and (vii) all other costs and expenses
incident to the performance of its obligations hereunder and under any Delayed
Delivery Contracts which 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
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 to the
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, and the Company and Xxxxxx Mae shall have furnished or caused
to
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12
be furnished to such counsel such documents and information as they may
reasonably request to pass upon such matters;
(c) Internal 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(b) or as is otherwise satisfactory to the
Representatives;
(d) Special 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(c) or as is otherwise satisfactory to the
Representatives;
(e) Counsel for the Eligible Lender Trustee, satisfactory to
the Representatives, shall have furnished to the Representatives a
written opinion or opinions, dated the Time of Delivery for such
Designated Securities, substantially in the form attached hereto as
Annex II(d) or as is otherwise satisfactory to the Representatives;
(f) Counsel for the Indenture Trustee, satisfactory to the
Representatives, shall have furnished to the Representatives a written
opinion or opinions, dated the Time of Delivery for such Designated
Securities, substantially in the form attached hereto as Annex II(e) or
as is otherwise satisfactory to the Representatives;
(g) At the time a Preliminary Prospectus 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 Xxx shall have furnished to the
Representatives a letter or letters with respect to the Company, Xxxxxx
Mae, 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 Xxx shall have
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 (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 Xxx 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
Mae
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13
otherwise than as set forth or contemplated in such Information
Statement, 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 any setting of
minimum prices for trading on such exchange; (ii) a general moratorium
on commercial banking activities declared by either Federal or New York
State authorities; or (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in
this clause (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 Xxx 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 Mae, as the case may be, satisfactory to the
Representatives as to the accuracy of the representations and warranties
of the Company or Xxxxxx Xxx, as the case may be, herein at and as of
such Time of Delivery, as to the performance by the Company or Xxxxxx
Mae, 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;
(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 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; and
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14
(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.
8. (a) The Company and Xxxxxx Xxx, 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 Mae 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 Xxx 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 will indemnify and hold harmless the Company and
Xxxxxx Mae against any losses, claims, damages or liabilities to which they may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in 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 Xxx by
such Underwriter through the Representatives expressly for use therein; and
will reimburse the Company for any legal or other expenses
14
15
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
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 Mae, 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 Xxx, 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,
15
16
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 Mae, 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
Xxx 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 Mae, 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 Xxx 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 Mae under this Section
8 shall be in addition to any liability which the Company and Xxxxxx Xxx may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the 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 Mae and to each person, if any, who controls the Company or
Xxxxxx Xxx 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
16
17
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
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.
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18
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, Xxxxxx Mae 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 Xxx or any officer or director or
controlling person of the Company or Xxxxxx Mae, 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 Xxx 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 Mae 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 Xxx 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 Mae shall be delivered
or sent by mail, telex or facsimile transmission to:
SLM Funding Corporation
000 Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Vice President
Student Loan Marketing Association
00000 Xxxxxx Xxx Xxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
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Attention: Xxxxxx X. Xxxxxx
Vice President and Treasurer
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 Mae 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.
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IF THE FOREGOING IS IN ACCORDANCE WITH YOUR UNDERSTANDING, PLEASE SIGN AND
RETURN TO US ___ COUNTERPARTS HEREOF.
Very truly yours,
SLM FUNDING CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer and Controller
STUDENT LOAN MARKETING ASSOCIATION
By: /s/ Xxxxxx X. XxXxxxx
-----------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Executive Vice President and
Chief Financial Officer
Accepted as of the date hereof:
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
20
21
ANNEX I
PRICING AGREEMENT
-----------------------
AS REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS NAMED ON SCHEDULE I HERETO,
C/O
-------------------
-----------------------
-----------------------
, 199
--
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 __________, 199__ (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 _______, 199__ 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.
22
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
cause the Trust to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto, less the principal
amount of Designated Securities covered by Delayed Delivery Contracts, if any,
as may be specified in Schedule II.
During the period beginning from the date of this Pricing Agreement for
the Designated Securities and continuing to and including the later of (i) [___
days after] the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Representatives and (ii) [__ days
after] the Time of Delivery for such Designated Securities, 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 or Certificates to persons in the United
Kingdom prior to the expiration of the period of six months from the issue date
of the Notes and the Certificates 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 complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 with respect to
anything done by it in relation to the Notes and the Certificates in, from or
otherwise involving the United Kingdom; and (c) it has only issued or passed on
and will only issue or pass on in the United Kingdom any document received by
it in connection with the issuance of the Notes and the Certificates to a
person who is of a kind described in article 11(3) of the Financial Services
Xxx 0000 (Investment Advertisements) (Exemptions) Order 1995 or is a person to
whom such document may otherwise lawfully be issued or passed on.
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 Xxx. 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
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which shall be submitted to the Company and Xxxxxx Mae 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:
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24
Accepted as of the date hereof:
[__________________]
By:
----------------------------------------
[__________________]
By:
----------------------------------------
Name:
Title:
On behalf of each of the Underwriters
4
25
SCHEDULE I
PRINCIPAL AMOUNT OF DESIGNATED SECURITIES TO BE PURCHASED
UNDERWRITER CLASS CLASS CLASS
--- --- ---
26
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.:
27
ANNEX II(a)
UNDERWRITER: COUNSEL OPINION
28
ANNEX II(b)
THE COMPANY, XXXXXX XXX AND THE SERVICER: INTERNAL COUNSEL OPINION
29
ANNEX II(c)
THE COMPANY, XXXXXX MAE AND THE SERVICER: OUTSIDE COUNSEL OPINION
30
ANNEX II(d)
ELIGIBLE LENDER TRUSTEE: COUNSEL OPINION
31
ANNEX II(e)
INDENTURE TRUSTEE: COUNSEL OPINION
32
ANNEX III
DELAYED DELIVERY CONTRACT
SLM FUNDING CORPORATION
C/O
----------------------
--------------------------
--------------------------
Attention: .............................. ..........., 19
--
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 .............., 19..,
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 .............., 19.. (the "Delivery Date") and interest on the Designated
Securities so purchased will accrue from .............., 19...
[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
------------- ------ ----------------
....................., 19.. $............. ....................., 19..
....................., 19.. $............. ....................., 19..
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
33
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
34
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: ............., 19..
SLM FUNDING CORPORATION
By:
-------------------------
Name:
Title:
F-3
