Exhibit 1.1
$____________
Education Loans Incorporated
----------------------------
STUDENT LOAN ASSET-BACKED NOTES, SERIES 1999-[X]
consisting of
$____________ Student Loan Asset-Backed Notes, Senior Series 1999-[X]
$____________ Student Loan Asset-Backed Notes, Subordinate Series 1999-[X]
Underwriting Agreement
----------------------
__________, 1999
XXXXXXX XXXXX XXXXXX INC.
[,as Representative of the several
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 to Xxxxxxx Xxxxx Xxxxxx Inc. [(sometimes
referred to herein as the "Representative," the "Underwriter," or the
"Underwriters")][and ____________ (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"), $__________ aggregate principal amount of its Student Loan
Asset-Backed Notes, Series 1999-[X] (the "Notes"). The Notes are to be issued in
[_____] series designated as Student Loan Asset-Backed Notes, Senior Series
1999-[X] (the "Series 1999-[X] Senior Notes") and Student Loan Asset-Backed
Notes, Subordinate Series 1999-[X] (the "Series 1999-[X] 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 First Supplemental Indenture, dated as of ________ 1, 1999 (the
"Supplemental Indenture"), supplemental to an Indenture of Trust, dated as of
________ 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 to acquire Student Loans as
described in the Prospectus from Goal Funding, Inc., a Delaware corporation (the
"Transferor") and wholly-owned subsidiary of SLFC, and the Notes will be secured
by, among other things, Financed Student Loans pledged to the Trustee and
described in the Prospectus (as hereinafter defined).
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 [(except as hereinafter limited
in part with respect to [_____] in Section 13 hereof)] agree to purchase from
EdLinc, all (but not less than all) of the Notes at the aggregate purchase price
of $__________, and EdLinc hereby agrees to pay to the Underwriters an aggregate
underwriting fee in the amount of $____________ [and to additionally pay, on
behalf of the Underwriters, the fees and expenses of counsel to the Underwriters
in the aggregate amount of $____________]. The maturity dates, purchase prices
and underwriting fees for each series of the Notes shall be as listed in
Appendix A hereto.
(b) [The Series 1999-[X] Senior Notes and the Series 1999-[X] 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 rates to
be agreed to by EdLinc and the Underwriters pursuant to an executed writing
(which may be in counterparts), and may be evidenced by telegraphic
communications or any other rapid transmission device designed to produce a
written record of communication transmitted, which writing shall be effective no
later than the Closing Date, provided that such interest rates shall not exceed
[_____]% per annum. Thereafter, such rates per annum shall be determined in
accordance with the Supplemental Indenture. (for auction rate Notes)] [The
Series 1999-[X] Note Initial Interest Rate (as defined in the Supplemental
Indenture) will be determined by Xxxxxxx Xxxxx Barney Inc. two Business Days
prior to Closing to equal One-Month LIBOR plus [_____]% per annum with respect
to the Series 1999-[X] Senior Notes and One-Month LIBOR plus [_____]% per annum
with respect to the Series 1999-[X] Subordinate Notes. The Series 1999-[X] Note
Interest Rate following the Initial Interest Period (as such terms are defined
in the Supplemental Indenture) with respect to the Series 1999-[X] Notes will be
determined by the Trustee from time to time as described in the Supplemental
Indenture to equal One-Month LIBOR plus [_____]% per annum with respect to the
Series 1999-[X] Senior Notes and One-Month LIBOR plus [_____]% per annum with
respect to the Series 1999-[X] Subordinate Notes. (for LIBOR rate based Notes)]
(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.
-2-
(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
At [_____] A.M., New York City time, on ____________, 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 [(i)] to the Underwriters the underwriting fee as set forth in Section 1
hereof in immediately available funds to the account of the Representative [,
and (ii) 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 [_____]. This payment and delivery is herein
called the "Closing". The Notes delivered at the Closing shall be made available
to the Underwriters and DTC at least two business days 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 No. ____________), including
a prospectus and such amendments thereto as may have been required to the date
hereof, relating
-3-
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 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.
(b) On the Effective Date and on the date of this Agreement, the
Registration Statement and the Prospectus conformed and 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 and does 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 and does 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.
(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").
-4-
(d) As of the Closing Date, each consent, approval, authorization or order
of, or filing with, any court or governmental agency or body which is required
to be obtained or made by the 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 [and the
Auction Agent Agreements]. The Indenture, the Supplemental Indenture [and the
Auction Agent Agreements] have been duly and validly authorized by EdLinc and,
upon their execution and delivery by EdLinc, assuming due authorization,
execution and delivery by the Trustee [and, in the case of the Auction Agent
Agreements, the Auction Agent], 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 [and the Auction Agent
Agreements] 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, executed and delivered
by EdLinc and the Transferor and, upon their execution and delivery (assuming
due authorization, execution and delivery by the Trustee and the Transferor's
Trustee) will be duly executed and delivered by each of EdLinc and the
Transferor and will constitute valid and legally binding agreements 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) SLFC and EdLinc each have the requisite power and authority to execute,
deliver and perform its obligations under the Servicing Agreement. The Servicing
Agreement has been duly and validly authorized by each of SLFC and EdLinc and,
upon execution and delivery, assuming due authorization, execution and delivery
by the Trustee, will be duly executed and delivered by each of SLFC and EdLinc
and will constitute a valid and legally
-5-
binding agreement of each of SLFC and 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
relating to or affecting creditors' rights or general equitable principles. The
Servicing Agreement conforms in all material respects to the description thereof
in the Prospectus.
(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 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 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 and SLFC's Program Agreements to which it is a
party. EdLinc'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
-6-
equitable principles. EdLinc'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 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, 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 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
-7-
EdLinc'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 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
the Servicing Agreement, in EdLinc's Program Agreements, in SLFC's Program
Agreements, in the Transfer Agreement, 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
-8-
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:
(a) Immediately following the execution of this Agreement, EdLinc will
pursuant to Rule 424(b) under the Securities Act prepare and file a prospectus
supplement, properly completed, with the Commission. EdLinc will advise the
Representative promptly of any such filing. 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, except for the Current Report on Form 8-K described in Section 4(m), 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
-9-
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.
(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 Underwriter 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 Representative (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
-10-
information concerning EdLinc, SLFC or the Transferor, as the Representative 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.
(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.
(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 Underwriter shall be deemed to be an
action of EdLinc, the Transferor or SLFC.
(m) Provided that EdLinc received the Computational Materials (as defined
in Section 8 below) within the time frame set forth in Section 8, EdLinc will
cause such Computational Materials to be filed with Commission on a Current
Report on Form 8-K (the "Current Report") not later than the second Business Day
following the receipt of such Computational Materials.
(n) Deposits required by the Indenture into the Acquisition 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
-11-
(a) SLFC agrees to indemnify and hold harmless the Underwriters and each
person, if any, who controls an 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 the
preliminary prospectus supplement, dated ____________ , 1999 (the "Preliminary
Prospectus"), 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; provided, however, that the indemnification contained in this
paragraph (a) with respect to the Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Series of Notes covered thereby by the Underwriter
to any person if the untrue statement or alleged untrue statement or omission or
alleged omission of a material fact contained in such Preliminary Prospectus was
corrected in the final Prospectus relating to such Series of Notes and the
Underwriter sold Notes of such Series to that person without sending or giving
at or prior to the written confirmation of such sale, a copy of the final
Prospectus (as then amended or supplemented) if EdLinc or SLFC has previously
furnished sufficient copies thereof to the Underwriters. 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 payment of all reasonable fees and expenses. The Underwriters 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
-12-
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 (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
-13-
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 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:
-14-
(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, SLFC's Program Agreements [the Investment
Agreement,] the 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
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-Dealer, the Investment Agreement Provider] 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
-15-
Authorizing Resolution, the Transferor's Authorizing Resolution, EdLinc'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, SLFC 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 Underwriters shall have received on the Closing Date an opinion of
Xxxxxx X. Xxxx, counsel for EdLinc, SLFC and the Transferor, dated the Closing
Date and addressed to the Underwriters, in form and scope satisfactory to the
Representative and its counsel.
(h) The Underwriters shall have received on the Closing Date an opinion of
Davenport, Evans, Xxxxxxx & Xxxxx, counsel for the Trustee and for 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) [The Underwriters shall have received on the Closing Date an opinion of
counsel for the Auction Agent, dated the Closing Date and addressed to the
Underwriters, in form and scope satisfactory to the Representative and its
counsel.]
(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 Underwriters 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.
(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,
Xxxxxxx PLLP, certified public accountants, an agreed-upon procedures 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.
-16-
(n) All the representations and warranties of EdLinc, SLFC and the
Transferor contained in this Agreement, EdLinc'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 1999-[X] Senior Notes "Aaa" and
"AAA", respectively, and (ii) the Series 1999-[X] 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, 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 and the Basic Documents; 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 Preliminary Prospectus and the Prospectus; (iii) representing
that (A) the Indenture, the Supplemental Indenture, the Servicing Agreement, the
Transfer Agreement, [the Investment Agreement, the Auction Agent Agreements] and
the Trustee's Program Agreements, have been duly authorized, executed and
delivered on behalf of
-17-
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 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
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, 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 of the Closing Date by a
duly authorized officer of the Broker-Dealer to be a true and correct copy
thereof and in full force and effect].
(w) The Underwriters shall have received a certificate of the Transferor's
Trustee, signed by an officer of such trustee, dated the Closing Date, (i)
containing permission to include the information concerning the Transferor's
Trustee in the Preliminary Prospectus and the Prospectus; (ii) representing that
(A) the Transfer Agreement has been duly authorized, executed and delivered on
behalf of the Transferor's Trustee and is in full force and effect, (B) such
agreement may be used in connection with the public offering of the Notes, (C)
the Transferor's 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 Transfer Agreement, (E) there is no litigation pending or
to his or her knowledge threatened against the Transferor's Trustee, or
involving any of the property or assets under the control of the Transferor's
Trustee, which
-18-
involves the possibility of any judgment or liability which may materially
adversely affect the security for 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 Transferor's Trustee 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 that,
in his or her opinion, with respect to references to the Transferor's 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;
(x) 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, [Subservicers], [the Auction Agent, the Broker-Dealer,
the Investment Agreement Provider,] and such Guarantee Agencies, if any,
specified by the Representative.
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 of any
Registration Statement, each Prospectus and each amendment or supplement thereto
and each other Basic Document, EdLinc's Program Agreement, SLFC's Program
Agreement, [Investment Agreement] and Trustee's Program 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
-19-
Transferor, (B) the Trustee and its counsel, (C) [the Auction Agent and its
counsel,] (D) any Guarantee Agencies 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, Xxxxxxx
PLLP, 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 cost of preparation, reproduction and
distribution of the Preliminary Prospectus and the final Prospectus distributed
to investors (excluding any amendments or supplements thereto) and this
Agreement and all other expenses incurred by it in connection with its public
offering and distribution of the Notes, including the cost of preparing,
printing and delivering the Preliminary Blue Sky Memorandum and all other
underwriting documents [and the fees and disbursements of their counsel].
8. Computational Materials
Not later than 4:00 p.m. New York City time, on the date on which
Computational Materials (as defined below) are first used by an Underwriter,
said Underwriter shall deliver to EdLinc electronically a complete copy of all
materials, if any, provided by such Underwriter to prospective investors in such
Notes which constitute "Computational Materials" within the meaning of the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Peabody & Co. Incorporated, and Xxxxxx Structured Asset Corporation, the
no-action letter dated may 27, 1994 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association and the no-action
letter of February 17, 1995 issued by the Commission to the Public Securities
Association (collectively, the "Xxxxxx/PSA Letters") and the filing of which is
a condition of the relief granted in such letters (such materials being the
"Computational Materials").
Each Underwriter severally and not jointly represents and warrants to and
agrees with EdLinc, as of the date hereof and as of the Closing Date, that the
Computational Materials furnished to EdLinc by such Underwriter pursuant to this
Section 8 constitute (either in original, aggregated or consolidated form) all
of the materials furnished to the prospective investors in the Notes by such
Underwriter prior to the time of delivery thereof to EdLinc that are required to
be filed with the Commission with respect to the Notes in accordance with the
Xxxxxx/PSA Letters and such Computational Materials comply with the requirements
of the Xxxxxx/PSA Letters.
Notwithstanding the foregoing, such Underwriter makes no representation or
warranty with respect to statements in any Computational Materials relating to
the Financed Student Loans which were furnished by or on behalf of Edlinc, SLFC
or the Transferor to such Underwriter.
-20-
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, 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, 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
-21-
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 subheading "Weighted Average Life of
the Series 1999-[X] Notes" under the heading "Maturity and Prepayment
Considerations", and] under the heading "Underwriting" in the Prospectus
Supplement dated ____________ , 1999 (the "Prospectus Supplement") and the
computational material contained in the Form 8-K filed with Commission on
____________ , 1999 relating to the Notes 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 and the Representative
confirms that [the information under the subheading "Weighted Average Life of
the Series 1999-[X] Notes" under the heading "Maturity and Prepayment
Considerations" in the Prospectus Supplement, and] the computational materials
contained in the Form 8-K filed with Commission on ____________ , 1999 is
correct; provided that with respect to [the information contained under the
subheading "Weighted Average Life of the Series 1999-[X] Notes" under the
heading "Maturity and Prepayment Considerations" in the Prospectus Supplement,
and] the computational materials contained in the Form 8-K filed with Commission
on ____________ , 1999 relating to the Notes, each Underwriter (including the
Representative) has assumed that the underlying financial information regarding
the Financed Student Loans as furnished by or on behalf of EdLinc, SLC or the
Transferor to such Underwriter is accurate and each Underwriter makes no
representation, warranty or confirmation with respect to such underlying
financial information regarding the Financed Student Loans. Anything to the
contrary notwithstanding in this Agreement, EdLinc, SLFC and the Transferor
agree that the information contained [under the subheading "Weighted Average
Life of the Series 1999-[X] Notes" under the heading "Maturity and Prepayment
Considerations" in the Prospectus Supplement, and] the computational materials
contained in the Form 8-K filed with Commission on ____________ , 1999 relating
to the Notes is not included in the indemnification provided by each Underwriter
contained in Section 5(c) hereof.
-22-
13. Liability of Underwriters
[Except as limited by law or regulation of the United States Comptroller of
the Currency as to commercial banks' legal capacity to underwrite, the] [The]
obligation of each particular Underwriter hereunder is joint and several. [To
the extent [_____] is legally limited in respect to its underwriting the Notes,
its obligation hereunder shall be deemed to have been initially and for all
purposes a several and neither a joint or joint and several obligation, and to
such extent its several obligation shall be in the proportion which its
participation (initially identified in writing to EdLinc, and thereafter as
modified from time to time by the Underwriters) bears to the aggregate principal
amount of the Notes; provided, however, that each Underwriter not so expressly
limited shall continue to have a joint and several obligation to purchase the
Notes in accordance with the terms of this Underwriting Agreement.]
14. 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 "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.
15. 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.]
-23-
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
------------------------------------
Name:
Title:
STUDENT LOAN FINANCE CORPORATION
("SLFC")
By
------------------------------------
Name:
Title:
GOAL FUNDING, INC.
(the "Transferor")
By
------------------------------------
Name:
Title:
Confirmed as of the date
first above mentioned.
XXXXXXX XXXXX XXXXXX INC.
[___________________________
By Xxxxxxx Xxxxx Barney Inc.]
By
--------------------------------
Name:
Title:
-24-
APPENDIX A
Initial Aggregate Underwriting
Series Principal Amount Maturity Date Purchase Price Fee
------ ---------------- ------------- -------------- ------------
1999-[X] $ % $
0000-[X]
-00-
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.
"Basic Documents" means the Indenture, the Supplemental Indenture, the
Transfer Agreement, [the Auction Agent Agreements, the Broker-Dealer
Agreements,] the Servicing Agreement and the Letter of Representations.
"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"); and
4. EdLinc's Program Agreements.
"EdLinc's Program Agreements" means the Loan Purchase Contracts and the
forms of Student Loan Purchase Agreements.
"Letter of Representations" means, individually and collectively, the
Blanket Issuer Letter of Representations, dated as of July 31, 1997, from EdLinc
to The Depository Trust Company ("DTC") and the Blanket Issuer Letter of
Representations, dated as of September 26, 1997, from the Corporation to DTC,
each containing certain representations to induce DTC to accept the Notes for
deposit.
"Loan Purchase Contracts" means, individually and collectively, the Student
Loan Purchase Agreements between EdLinc and the eligible lenders described in
Exhibits [_____] to the Supplemental Indenture, and the Transferor's Student
Loan Purchase Agreements.
"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's Program Agreements" means [the Subservicing Agreements].
-26-
"Transferor's Authorizing Resolutions" means the Resolutions of the
Transferor's board of directors, adopting, accepting, ratifying and approving:
1. the Transfer Agreement, this Agreement and the Prospectus; and,
2. the Transferor's Student Loan Purchase Agreements.
"Transferor's Student Loan Purchase Agreements" means the Student Loan
Purchase Agreements between the Transferor and the eligible lenders described in
Exhibit [_____] to the Supplemental Indenture.
"Transferor's Trustee" means [[_____]], as trustee under the Indenture of
Trust, dated as of [[_____]], between the Transferor and [[_____]].
"Trustee's Program Agreements" means the Guarantee Agreements.
-27-
