SLM Funding LLC Student Loan-Backed Notes Underwriting Agreement
Exhibit 1.1
SLM Funding LLC
Student Loan-Backed Notes
November 4, 2005
To: the Persons Listed on Schedule A
Ladies and Gentlemen:
From time to time SLM Education Credit Finance Corporation (“SLM ECFC”), a Delaware
corporation and SLM Funding LLC (the “Company”), a Delaware limited liability company and a
wholly-owned subsidiary of SLM ECFC, propose to enter into one or more Pricing Agreements (each a
“Pricing Agreement”) in the form of Annex I hereto, with such additions and deletions as the
parties thereto may determine. Subject to the terms and conditions stated herein and therein, the
Company proposes to cause the Trust specified in the applicable Pricing Agreement to issue and sell
to the firms named in Schedule I to the applicable Pricing Agreement (each firm constituting the
“Underwriter” with respect to such Pricing Agreement and the securities specified therein) certain
of such Trust’s Student Loan-Backed Notes (the “Notes”) specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the “Designated Securities”), less the principal
amount of Designated Securities covered by Delayed Delivery Contracts, if any, as provided in
Section 3 hereof and as may be specified in Schedule II to such Pricing Agreement (with respect to
such Pricing Agreement, any Designated Securities to be covered by Delayed Delivery Contracts are
herein sometimes referred to as “Contract Securities” and the Designated Securities to be purchased
by the Underwriters (after giving effect to the deduction, if any, for Contract Securities) are
herein sometimes referred to as “Underwriters’ Securities”).
The Securities may be sold from time to time in one or more Series. Each Series of
Securities, which will include one or more classes of Notes and may include one or more classes of
Student Loan-Backed Certificates (the “Certificates,” and, together with the Notes, the
“Securities”) will be issued by a Trust to be formed with respect to such Series (each, a “Trust”).
Each Trust will be formed pursuant to a trust agreement (an “Initial Trust Agreement”) to be
entered into between the Company, the Eligible Lender Trustee specified in the related Pricing
Agreement (the “Eligible Lender Trustee”) on or before the date of each Pricing Agreement and
amended and restated at the Time of Delivery for that Series pursuant to an amended and restated
trust agreement (an “Amended and Restated Trust Agreement,” together with the Initial Trust
Agreement, a “Trust Agreement”) to be entered into between the Company, the Eligible Lender Trustee
and the Indenture Trustee (defined below). The Notes of each Series will be issued and secured
pursuant to an indenture (an “Indenture”) between the Trust and the Indenture Trustee specified in
the related Pricing Agreement (the “Indenture Trustee”). The Certificates of a Series will be
issued pursuant to the related Trust Agreement and will represent fractional undivided interests in
the Trust created thereby. The property of each Trust will include, among other
things, educational student loans to students and/or parents of dependent students made under
the Federal Family Education Loan Program (“Student Loans”).
At the Time of Delivery for the Designated Securities (as defined in Section 4 hereof), (i)
the Company will acquire the related Student Loans from SLM ECFC and VG Funding, LLC (“VG Funding”)
under separate Purchase Agreements, (ii) the Company will sell the related Student Loans to the
Trust pursuant to a Sale Agreement, between the Company and the Trust with the related Eligible
Lender Trustee holding legal title thereto (iii) the Company will make a deposit into the Add-On
Consolidation Loan Account, which may be used for the purchase of Add-On Consolidation Loans during
the Add-On Consolidation Loan Period and (iv) the Company will make a deposit into the Supplemental
Purchase Account, which may be used for the purchase of Additional Trust Student Loans during the
Supplemental Purchase Period. With respect to each Series, Xxxxxx Xxx, Inc., as servicer (the
“Servicer”) will enter into a servicing agreement (a “Servicing Agreement”) with the Trust, the
Administrator (defined below), the Eligible Lender Trustee and the Indenture Trustee with respect
to the related Student Loans. With respect to each Series, Xxxxxx Mae, Inc., as administrator (the
“Administrator”), will enter into an administration agreement (an “Administration Agreement”) with
the Trust, the Company, the Eligible Lender Trustee, the Servicer and the Indenture Trustee.
The terms and conditions of any particular issuance of Designated Securities shall be as
specified in the Pricing Agreement relating thereto and in or pursuant to the related Indenture.
Capitalized terms used but not defined herein or in any Pricing Agreement shall have the
meanings ascribed thereto in the related Indenture.
1. Particular sales of Designated Securities may be made from time to time to the Underwriter
of such Securities, for whom the firms designated as representatives of the Underwriter of such
Securities in the Pricing Agreement relating thereto will act as representatives (the
“Representatives”). The term “Representatives” also refers to a single firm acting as sole
representative of the Underwriters and to an Underwriter or Underwriters who act on its or their
own behalf 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 Underwriter of such Designated Securities, the
names of the Underwriter of such Designated Securities, the names of the Representatives of such
Underwriter and the principal amount of such Designated Securities to be purchased by each
Underwriter and whether any of such Designated Securities shall be covered by Delayed Delivery
Contracts (as defined in Section 3 hereof) and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture and the registration statement and prospectus
with respect thereto) the terms of such Designated Securities. A Pricing Agreement
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shall be in the form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several and not joint.
2. The Company and SLM ECFC 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) and (o) of this Section 2 with respect to SLM ECFC, VG Funding, the Servicer or
the Administrator constitute representations, warranties and agreements of SLM ECFC only and not of
the Company):
(a) A registration statement on Form S-3 (File No. 333-103545), 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 SLM ECFC’s or the Company’s knowledge, threatened by the
Commission (any preliminary prospectus included in such registration statement or filed with
the Commission pursuant to Rule 424(b) under the Act, is hereinafter called a “Preliminary
Prospectus;” the various parts of such registration statement, including all exhibits
thereto and the documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration statement became effective
but excluding Form T-1, each as amended at the time such part of the registration statement
became effective, are hereinafter collectively called the “Registration Statement;” the
prospectus relating to the Securities, in the form in which it has most recently been filed,
or transmitted for filing, with the Commission on or prior to the date of this Agreement,
being hereinafter called the “Prospectus”; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the Act, as of the
date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and incorporated by reference in such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
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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;
(d) Neither SLM ECFC or any of its subsidiaries, taken as a whole, nor the Company has
sustained 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. There has not been (A)
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any material adverse change in the capital stock or long-term debt of SLM ECFC or any
of its subsidiaries, taken as a whole, or the Company or (B) 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
SLM ECFC or any of its subsidiaries, taken as a whole, or the Company, since the date of SLM
Corporation’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q or any
Form 8-K filed with the Commission, as applicable, unless disclosed in writing to the
Underwriters, on or prior to the date of this Agreement;
(e) The Company has been duly formed and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware, with power and authority
(corporate or otherwise) 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 SLM ECFC as of the date hereof. The Servicer has been duly
formed and is validly existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate or otherwise) to own its properties and
conduct its business as described in the Prospectus and to consummate the transactions
contemplated therein. The Administrator has been duly formed and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power and
authority (corporate or otherwise) to own its properties and conduct its business as
described in the Prospectus and to consummate the transactions contemplated therein. SLM
ECFC has been duly formed and is validly existing under the laws of the State of Delaware,
with power and authority (corporate or otherwise) to own its properties and conduct its
business as described in the Prospectus Supplement and to consummate the transactions
contemplated therein and herein. VG Funding has been duly formed and is validly existing as
a limited liability company in good standing under the laws of the State of Delaware, with
power and authority (corporate or otherwise) to own its properties and conduct its business
as described in the Prospectus and to consummate the transactions contemplated therein and
herein.
(f) All of the equity interests of the Company have been duly and validly authorized
and are owned beneficially and of record by SLM ECFC as of the date hereof;
(g) This Agreement has been, and each Pricing Agreement with respect to the Designated
Securities upon its execution and delivery by the Company and SLM ECFC will have been, duly
authorized, executed and delivered by the Company and SLM ECFC. 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
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has been duly authorized and duly qualified under the Trust Indenture Act. The related
Certificates are intended to represent undivided ownership interests in the Trust created by
the Trust Agreement, which will be substantially in the form filed as an exhibit to the
Registration Statement, and will be entitled to the benefits provided by the Trust
Agreement. At the Time of Delivery (as defined in Section 4 hereof) for the Designated
Securities, the Indenture and the Trust Agreement will each constitute a valid and legally
binding instrument, enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity principles. The Indenture and Trust
Agreement conform, and the Designated Securities and the related Certificates will conform,
to the descriptions thereof contained in the Prospectus as amended or supplemented with
respect to the Designated Securities;
(h) The issue and sale of the Securities and the compliance by the Company with all of
the provisions of the Securities, the Indenture, the Trust Agreement, each of the Delayed
Delivery Contracts, this Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which
the Company or SLM ECFC is a party or by which the Company or SLM ECFC is bound or to which
any of the property or assets of the Company or SLM ECFC is subject, nor will such action
result in any violation of the provisions of the Company’s Certificate of Formation or
Limited Liability Company Operating Agreement, SLM ECFC’s Certificate of Incorporation 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 SLM ECFC 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 SLM ECFC 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 Underwriter;
(i) The statements set forth in the Prospectus under the captions “Description of the
Notes” and “Description of the Certificates” and set forth in the Prospectus Supplement
under the caption “Description of the Notes,” insofar as they purport to constitute a
summary of the terms of the Notes and the Certificates, are accurate, complete and fair;
(j) SLM ECFC is not in violation of its Certificate of Incorporation or By-laws, and
the Company is not in violation of its Certificate of Formation or Limited Liability Company
Operating Agreement, and neither SLM ECFC nor the Company is in default
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in the performance or observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of its properties
may be bound;
(k) Other than as set forth in the Prospectus or in SLM Corporation’s most recent
Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K, in
each case, on or prior to the date of this Agreement, filed with the Commission, as
applicable, there are no legal or governmental proceedings pending to which the Company or
SLM ECFC or any of its subsidiaries is a party or of which any property of the SLM ECFC or
any of its subsidiaries is the subject which, if determined adversely to the Company or SLM
ECFC 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 SLM ECFC and any of its subsidiaries, taken as a whole,
or the Company, or on the consummation of the transactions contemplated hereby; and, to the
best of the Company’s and SLM ECFC’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;
(m) Neither the Company, SLM ECFC nor any of their affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within the meaning of
Section 517.075, Florida Statutes;
(n) PricewaterhouseCoopers LLP are independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder;
(o) At the Time of Delivery of the Designated Securities, SLM ECFC’s representations
and warranties in the Purchase Agreement, the Administrator’s representations and warranties
in the Administration Agreement, the Company’s representations and warranties in the Sale
Agreement and Trust Agreement, VG Funding’s representations and warranties in the Purchase
Agreement to which it is a party will be true and correct in all material respects 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 SLM ECFC 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
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or affecting creditors’ rights and to general equity principles; and any Delayed
Delivery Contracts conform to the description thereof in the Prospectus.
3. Upon the execution of the Pricing Agreement applicable to any Designated Securities and
authorization by the Representatives of the release of the 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.
Upon the execution of this Agreement and the Pricing Agreement related thereto and the
authorization of release of the Designated Securities to the Euro Co-Managers, the Euro Co-Managers
propose to offer the Designated Securities for sale upon the terms and conditions set forth in this
Agreement and the Prospectus. Each Euro Co-Manager also represents and warrants to, and agrees
with, the Company that:
(i) it will not offer, sell or resell the Designated Securities within the United States or
to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any
time and (ii) otherwise until 40 days after the later of the commencement of the offering of
the
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Designated Securities and the Closing Date for the offering of the Designated Securities;
except through a broker/dealer which is registered in the United States (as such terms are
defined in Regulation S promulgated under the Securities Act of 1933, as amended); and
(ii) in making any sales to purchasers within the United States of Designated Securities
acquired pursuant to this Agreement, it will conform to the provisions of paragraphs (a) and
(b) of Rule 2420 of the Conduct Rules of NASD Regulation, Inc. to the same extent as though
it were a member of the National Association of Securities Dealers, Inc.
The execution of this Agreement and the Pricing Agreement related thereto on behalf of each
Euro Lead Manager and Euro Co-Manager will constitute acceptance by each Manager of the IPMA
Agreement Among Managers Version 1, New York law.
4. Underwriters’ Securities to be purchased by each Underwriter pursuant to the Pricing
Agreement relating thereto, in the form specified in such Pricing Agreement, and in such authorized
denominations and registered in such names as the Representatives may request upon at least
forty-eight hours’ prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by such Underwriter or
on its behalf of the purchase price therefor by wire transfer or by certified or official bank
check or checks, payable to the order of the Company in the funds specified in such Pricing
Agreement, all in the manner and at the place and time and date specified in such Pricing Agreement
or at such other place and time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the “Time of Delivery” for such Securities.
Concurrently with the delivery of and payment for the Underwriters’ Securities, the Company
will deliver to the Representatives for the accounts of the Underwriters a check payable to the
order of the party designated in the Pricing Agreement relating to such Underwriters’ Securities in
the amount of any compensation payable by the Company to the Underwriters in respect of any Delayed
Delivery Contracts as provided in Section 3 hereof and the Pricing Agreement relating to such
Securities.
5. The Company agrees with each of the Underwriters of any Designated Securities, and SLM ECFC
agrees with such Underwriters that it will cause the Company:
(a) To prepare the Prospectus as amended or supplemented in relation to the applicable
Designated Securities in a form approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on
the second business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such earlier time as may
be required by Rule 424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after the date of the
Pricing Agreement relating to such Designated Securities and prior to the Time of Delivery
for such Designated Securities, which amendment or supplement shall be disapproved by the
Representatives for such Designated Securities promptly after reasonable notice thereof; to
advise the Representatives promptly of any such amendment
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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;
(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;
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(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. (a) The Company and SLM ECFC covenant and agree with the several Underwriters that the
Company or SLM ECFC will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company’s and SLM ECFC’s counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof
to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any Indenture, any Trust Agreement, any
Delayed Delivery Contracts, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Designated Securities; (iii) all expenses in connection with the
qualification of the Designated Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the Blue Sky and Legal
Investment Surveys; (iv) any fees charged by securities rating services for rating the Designated
Securities; (v) the cost of preparing the Designated Securities; (vi) the fees and expenses of the
Eligible Lender Trustee and the Indenture Trustee and any agent of the Eligible Lender Trustee or
the Indenture Trustee and the fees and disbursements of counsel for the Eligible Lender Trustee and
the Indenture Trustee in connection with any Indenture and Trust Agreement and the Designated
Securities; (vii) the fees payable to the Luxembourg Stock Exchange in connection with listing
Designated Securities on the Luxembourg Stock Exchange; and (viii) all other costs and expenses
incident to the performance of their obligations hereunder and under any Delayed Delivery Contracts
that are not otherwise specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any offers they may make.
(b) Each of the Company, SLM ECFC and SLM Corporation acknowledges and agrees that the
purchase and sale of the Designated Securities pursuant to this Agreement, including the
determination of the initial public offering price of the Designated Securities and any related
discounts and commissions, is an arm’s-length commercial transaction between the Company, on the
one hand, and the Underwriters, on the other. In connection therewith and with the process leading
to such transaction, the each of the Company, SLM ECFC and SLM Corporation acknowledges and agrees
that each Underwriter is acting solely as a principal and not as the
11
agent or fiduciary or in any other position of higher trust of the Company and that no
Underwriter has assumed (i) a fiduciary responsibility in favor of the Trust specified in the
applicable Pricing Agreement with respect to the offering and sale of the Designated Securities
contemplated hereby or (ii) any other obligation to any of the Company, SLM ECFC and SLM
Corporation except for the obligations expressly set forth in this Agreement. Each of the Company,
SLM ECFC and SLM Corporation covenants and agrees that it will not claim that any Underwriter owes
a fiduciary or other similar duty to the Trust specified in the applicable Pricing Agreement in
connection with the offering and sale of the Designated Securities contemplated hereby or the
process leading thereto. Each Underwriter covenants and agrees that it has disclosed to the
Company, SLM ECFC and SLM Corporation any conflicts of interest that would materially impact the
arm’s-length commercial nature of the purchase and sale of the Designated Securities including the
determination of the initial public offering price of the Designated Securities and any related
discounts and commissions.
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 SLM ECFC 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 SLM ECFC shall have performed all of their
obligations hereunder theretofore to be performed, and the following additional conditions:
(a) (i) 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; (ii) 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 (iii) all requests for additional information on the part of the Commission shall have
been complied with;
(b) Counsel for the Underwriters shall have furnished Representatives such opinion or
opinions, substantially in the form attached hereto as Annex II(a), dated the Time of
Delivery for such Designated Securities, with respect to the Designated Securities and such
other related matters as the Representatives may reasonably request;
(c) Internal counsel for the Company, the Administrator, SLM Corporation, SLM ECFC, VG
Funding 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, the Administrator, SLM Corporation, SLM ECFC, VG
Funding and the Servicer, satisfactory to the Representatives, shall have furnished to the
Representatives a written opinion or opinions, dated the Time of
12
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 SLM ECFC shall have furnished to the
Representatives a letter or letters with respect to the Company, SLM ECFC, 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 SLM ECFC or any of its subsidiaries, taken as a whole, nor the Company
shall have sustained (i) 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; and, (ii) there shall not have
been (A) any material adverse change in the capital stock or long-term debt of SLM ECFC or
any of its subsidiaries, taken as a whole, or the Company or (B) 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 SLM ECFC or any of its subsidiaries, taken as a whole, or the Company or the
transactions contemplated hereby, otherwise than, in the case of clauses (A) and (B) above,
as set forth in SLM Corporation’s most recent Annual Report on Form 10-K or Quarterly Report
on Form 10-Q or any Current Report on Form 8-K filed with the Commission, or as disclosed in
writing to the Underwriters on or prior to the date of this Agreement, 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, there shall not have occurred any of the following: (1) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange or
13
any setting of minimum prices for trading on such exchange; (2) a general moratorium on
commercial banking activities declared by either Federal or New York State authorities; or
(3) 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 (3) 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;
(j) Each of the Company and SLM ECFC 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 SLM ECFC, as the case may be, satisfactory to the
Representatives as to the accuracy of the representations and warranties of the Company or
SLM ECFC, as the case may be, herein at and as of such Time of Delivery, as to the
performance by the Company or SLM ECFC, 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;
(k) 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 to the Underwriters, the aggregate amount of the related Certificates, if
any, as specified in the related underwriting agreement for such Certificates shall have
been sold to the underwriters specified in such underwriting agreement; and
(l) 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, SLM ECFC and SLM Corporation, 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, SLM ECFC and SLM Corporation 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
14
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, SLM ECFC or SLM Corporation by any Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or supplemented relating to such
Securities.
(b) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Company,
SLM ECFC and SLM Corporation 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 SLM ECFC by such
Underwriter through the Representatives expressly for use therein; and will reimburse the Company,
SLM ECFC or SLM Corporation, as applicable, for any legal or other expenses reasonably incurred by
the Company, SLM ECFC or SLM Corporation 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
15
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 SLM ECFC,
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 SLM ECFC, on the one hand and the
Underwriters of the Designated Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative benefits received
by the Company and SLM ECFC, 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 SLM ECFC 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 SLM
ECFC, 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, SLM ECFC, SLM Corporation 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
16
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, SLM ECFC and SLM Corporation under this Section 8 shall be
in addition to any liability which the Company, SLM ECFC and SLM Corporation may otherwise have and
shall extend, upon the same terms and conditions, to each officer and director of the Underwriters
and to each person, if any, who controls any Underwriter within the meaning of the Act and the
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, SLM ECFC or SLM Corporation and to each
person, if any, who controls the Company, SLM ECFC or SLM Corporation within the meaning of the
Act.
9. (a) If any Underwriter shall default in its obligation to purchase the Underwriters’
Securities which it has agreed to purchase under the Pricing Agreement relating to such
Underwriters’ Securities, the Representatives may in their discretion arrange for themselves or
another party or other parties to purchase such Underwriters’ Securities on the terms contained
herein and therein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Underwriters’ Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Underwriters’ Securities on such
terms. In the event that, within the respective prescribed period, the Representatives notify the
Company that they have so arranged for the purchase of such Underwriters’ Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of such Underwriters’
Securities, the Representatives or the Company shall have the right to postpone the Time of
Delivery for such Underwriters’ Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration Statement or the
Prospectus as amended or supplemented, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be made necessary. The term
“Underwriter” as used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to the Pricing Agreement with
respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the Underwriters’
Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate principal amount of such Underwriters’ Securities
which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of the
Designated Securities, then the Company shall have the right (i) to require each non-defaulting
Underwriter to purchase the principal amount of Designated Securities which such non-defaulting
Underwriter agreed to purchase under the Pricing Agreement relating to such Designated Securities,
and, in addition, (ii) to require each non-defaulting Underwriter to purchase its pro rata share of
the Designated Securities of such defaulting Underwriter or
17
Underwriters for which such arrangements have not been made (which share only shall pertain to
and be based on the principal amount of the Designated Securities which such non-defaulting
Underwriter or Underwriters previously agreed to purchase under the Pricing Agreement relating to
such Designated Securities, it being acknowledged and agreed that such non-defaulting Underwriter
or Underwriters shall not be required to purchase a share of any class of Designated Securities of
a defaulting Underwriter or Underwriters which the non-defaulting Underwriter or Underwriters had
not previously agreed to purchase under the Pricing Agreement relating to such Designated
Securities). 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.
10. The respective indemnities, agreements, representations, warranties and other statements
of the Company and SLM ECFC and the several Underwriters and, to the extent provided in Xxxxxxx 0,
XXX Corporation, 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, SLM ECFC or SLM Corporation or any officer
or director or controlling person of the Company, SLM ECFC or SLM Corporation, and shall survive
delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9 or Section 7(i) hereof,
the Company, SLM ECFC and SLM Corporation 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
Section 8 hereof and in Section 6 hereof with respect to the Company and SLM ECFC; but, if for any
other reason Underwriters’ Securities are not delivered by or on behalf of the Company as provided
herein, the Company and SLM ECFC 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, SLM ECFC and SLM
Corporation 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.
18
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, SLM ECFC or SLM
Corporation shall be delivered or sent by mail, telex or facsimile transmission to:
SLM Funding LLC | ||||
00000 Xxxxxxxx Xxx | ||||
X0000 | ||||
Xxxxxx, Xxxxxxxx 00000 | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxx X. Xxxxxx, Vice President | |||
SLM Education Credit Finance Corporation | ||||
00 Xxxxxxxxx Xxxxx | ||||
Xxxx Xxxxxxxxxx, Xxxxx Xxxxxx 00000 | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxx X. Xxxxxx, Vice President | |||
SLM Corporation | ||||
00000 Xxxxxxxx Xxx | ||||
X0000 | ||||
Xxxxxx, Xxxxxxxx 00000 | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | J. Xxxxx Xxxxxx, Senior Vice President |
provided, however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters’ Questionnaire, or telex constituting such Questionnaire, which address
will be supplied to the Company, SLM ECFC or SLM Corporation 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 and SLM ECFC and, to the extent provided in Sections 8
and 10 hereof, SLM Corporation, the officers and directors of the Company, SLM ECFC and SLM
Corporation and each person who controls the Company, SLM ECFC, SLM Corporation or any Underwriter,
and their respective heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under
19
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 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.`
20
If the foregoing is in accordance with your understanding, please sign and return to us ten
counterparts hereof.
Very truly yours, | ||||||
SLM Funding LLC | ||||||
By: | /S/ XXXX X. XXXXXX | |||||
Name: | Xxxx X. Xxxxxx | |||||
Title: | Vice President | |||||
SLM Education Credit Finance Corporation | ||||||
By: | /S/ XXXX X. XXXXXX | |||||
Name: | Xxxx X. Xxxxxx | |||||
Title: | Vice President |
Accepted and agreed with respect to Sections 8, 10, 12 and 13 of this Agreement: |
SLM Corporation | ||||
By: | /S/ | J. XXXXX XXXXXX | ||
Name: | J. Xxxxx Xxxxxx | |||
Title: | Senior Vice President |
Accepted as of the date hereof: | ||||||||||
Credit Suisse First Boston LLC | ||||||||||
By: | /S/ | XXXXXXXX XXXXX | ||||||||
Name: | Xxxxxxxx Xxxxx | |||||||||
Title: | Managing Director | |||||||||
Deutsche Bank Securities Inc. | ||||||||||
By: | /S/ | XXXX XXXXXXXX | ||||||||
Name: | Xxxx Xxxxxxxx | |||||||||
Title: | Director | |||||||||
By: | /S/ | XXXXXXX X’XXXXX | ||||||||
Name: | Xxxxxxx X’Xxxxx | |||||||||
Title: | Vice President | |||||||||
As Representatives of the several Underwriters named in Schedule I(a) hereto | ||||||||||
Credit Suisse First Boston (Europe) Limited | ||||||||||
By: | /S/ | XXXXXX XXXXXX | ||||||||
Name: | Xxxxxx Xxxxxx | |||||||||
Title: | Vice President | |||||||||
Deutsche Bank AG, London Branch | ||||||||||
By: | /S/ | XXXXXXXXXXX X. XXXXX | ||||||||
Name: | Xxxxxxxxxxx X. Xxxxx | |||||||||
Title: | Managing Director | |||||||||
By: | /S/ | XXXX XXXXX | ||||||||
Name: Title: |
Xxxx Xxxxx Managing Director |
|||||||||
each on behalf of itself as Euro Joint Lead Manager |
Banc of America Securities Limited | ||||||||||
By: | /S/ | XXXXXXX XXXXXXXX | ||||||||
Name: | Xxxxxxx Xxxxxxxx | |||||||||
Title: | Managing Director | |||||||||
Barclays Bank PLC | ||||||||||
By: | /S/ | XXXXXX X. XXXXX | ||||||||
Name: | Xxxxxx X. Xxxxx | |||||||||
Title: | Authorized Signatory | |||||||||
DEPFA BANK plc | ||||||||||
By: | /S/ | XXXXXXX XXXXX | By: | /S/ | XXXXXXXX XXXXXXX | |||||
Name: | Xxxxxxx Xxxxx | Name: | Xxxxxxxx Xxxxxxx | |||||||
Title: | Associate Director | Title: | Managing Director | |||||||
Fortis Bank nv-sa | ||||||||||
By: | /S/ | XXXX XXXXX | By: | /S/ | XXXXXX XXXXXX | |||||
Name: | Xxxx Xxxxx | Name: | Xxxxxx Xxxxxx | |||||||
Title: | Managing Director | Title: | Associate Legal Risk | |||||||
Xxxxxxx Xxxxx International | ||||||||||
By: | /S/ | XXXXXX XXXXXXXXXXX | ||||||||
Name: | Xxxxxx Xxxxxxxxxxx | |||||||||
Title: | Authorized Signatory | |||||||||
Each on behalf of itself as Euro Co-Manager |
Schedule A
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
and
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representatives of the several Underwriters named in Schedule I(a) hereto
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representatives of the several Underwriters named in Schedule I(a) hereto
Credit Suisse First Boston (Europe) Limited
Xxx Xxxxx Xxxxxx
Xxxxxx X00 0XX
Xxx Xxxxx Xxxxxx
Xxxxxx X00 0XX
Deutsche Bank AG, London Branch
Xxxxxxxxxx Xxxxx
0, Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxxxxx Xxxxx
0, Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
each on behalf of itself as Euro Joint Lead Manager
Banc of America Securities Limited
0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Barclays Bank PLC
0 Xxxxxxxxx Xxxxx
Xxxxxx X00 0XX
0 Xxxxxxxxx Xxxxx
Xxxxxx X00 0XX
XXXXX XXXX xxx
0 Xxxxxxx Xxxxxx
Xxxxxx 0
0 Xxxxxxx Xxxxxx
Xxxxxx 0
Fortis Bank nv-sa
Xxxxxxxxxxx 0
X-0000 Xxxxxxxx
Xxxxxxx
Xxxxxxxxxxx 0
X-0000 Xxxxxxxx
Xxxxxxx
Xxxxxxx Xxxxx International
Xxxxxxx Xxxxx Financial Centre -0 Xxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
each on behalf of itself as Euro Co-Manager
Xxxxxxx Xxxxx Financial Centre -0 Xxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
each on behalf of itself as Euro Co-Manager
ANNEX I
Pricing Agreement
As Representatives of the several
Underwriters named on Schedule I hereto,
Underwriters named on Schedule I hereto,
c/o |
||||
, 200_
Ladies and Gentlemen:
SLM Funding LLC, a Delaware limited liability company (the “Company”), and SLM Education
Credit Finance Corporation, a Delaware corporation (“SLM ECFC”), propose, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated , 200___(the
“Underwriting Agreement”), between the Company, SLM ECFC and SLM Corporation, on the one hand, and
and , on the other hand, that the Company will cause the trust (the
“Trust”) formed pursuant to the Trust Agreement dated as of , 200___between the Company and
, as trustee (the “Eligible Lender Trustee”), to issue and sell to the Underwriters named in
Schedule I hereto (the “Underwriters”) the Student Loan-Backed Notes (the “Notes”) specified in
Schedule II hereto (the “Designated Securities”). The Notes will be issued and secured pursuant to
the Indenture, dated (the “Indenture”), between the Trust, the Eligible Lender Trustee
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
2
to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used
herein as therein defined.
The Representatives designated to act on behalf of the Representatives and on behalf of each
of the Underwriters of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12 are set forth at
the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may
be, relating to the Designated Securities, in the form heretofore delivered to you is now proposed
to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement
incorporated herein by reference, the Company agrees to cause the Trust to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase
from the Trust, at the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto, less the principal amount of Designated Securities covered
by Delayed Delivery Contracts, if any, as may be specified in Schedule II.
During the period beginning from the date of this Pricing Agreement for the Designated
Securities and continuing to and including the Closing Date, the Company agrees, and SLM ECFC
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 evidencing an ownership in, Student Loans, without
the prior written consent of the Representatives.
Each Underwriter represents and agrees that (a) it has not offered or sold and will not offer
or sell any Notes to persons in the United Kingdom prior to the expiration of the period of six
months from the issue date of the Notes except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes
of their businesses or otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995, as amended; (b) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or inducement to engage in investment
activity, with the meaning of section 21 of the Financial Services and Markets Xxx 0000 (the
“FSMA”), received by it in connection with the issue or sale of any notes in circumstances in which
section 21(1) of the FSMA does not apply to the issuer; and (c) it has complied and will comply
with all applicable provisions of the FSMA with respect to anything done by it in relation to the
Notes in, from or otherwise involving the United Kingdom.
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
3
Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement
between each of the Underwriters and the Company, SLM ECFC and SLM Corporation. It is understood
that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company, SLM ECFC and SLM Corporation 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 LLC | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
SLM Education Credit Finance Corporation | ||||||
By: | ||||||
Name: | ||||||
Title: |
Accepted and agreed with respect to Sections 8, 10, 12 and 13 of the Underwriting Agreement: |
SLM Corporation | ||||
By: | ||||
Name: | ||||
Title: |
4
Accepted as of the date hereof:
By:
|
||||
Name: |
||||
Title: |
By: |
||||
Name: |
||||
Title: |
5
SCHEDULE I
Principal Amount of Designated Securities to be Purchased
Underwriter Class ___ Class ___ Class ___
SCHEDULE II
Title of each Class of Designated Securities:
Aggregate principal amount of each Class:
Price to Public of each Class:
Purchase Price by Underwriters of each Class:
Specified funds for payment of purchase price:
Indenture:
Maturity:
Interest Rate:
Form of Designated Securities:
Time of Delivery:
Closing location for delivery of Designated Securities:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
ANNEX II(a)
The Underwriters: Outside Counsel Opinion
[Opinion to be issued, which will be substantially in the form provided for
SLM Student Loan Trust 2005-8]
ANNEX II(b)
The Company, SLM ECFC and the Servicer: Internal Counsel Opinion
[Opinion to be issued, which will be substantially in the form provided for
SLM Student Loan Trust 2005-8]
ANNEX II(c)
The Company, SLM ECFC and the Servicer: Outside Counsel Opinion
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2005-8]
ANNEX II(d)
Eligible Lender Trustee: Counsel Opinion
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2005-8]
ANNEX II(e)
Indenture Trustee: Counsel Opinion
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2005-8]
ANNEX III
DELAYED DELIVERY CONTRACT
SLM Funding LLC
c/o _______________________
__________________________
__________________________
Attention: _______________ | ____________, |
20__
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SLM Funding LLC (hereinafter called the
“Company”), and the Company agrees to sell to the undersigned,
$
principal amount of the Company’s (hereinafter called the “Designated Securities”),
offered by the Company’s Prospectus, dated , 20 , as amended or supplemented,
receipt of a copy of which is hereby acknowledged, at a purchase price of % of the principal
amount thereof, plus accrued interest from the date from which interest accrues as set forth below,
and on the further terms and conditions set forth below.
The undersigned will purchase the Designated Securities from the Company on ,
20 (the “Delivery Date”) and interest on the Designated Securities so purchased will accrue from
, 20 .
[The undersigned will purchase the Designated Securities from the Company on the delivery date
or dates and in the principal amount or amounts set forth below:
Principal | Date from Which | |||
Delivery Date | Amount | Interest Accrues | ||
, 20___
|
$ | , 20___ |
Principal | Date from Which | |||
Delivery Date | Amount | Interest Accrues | ||
, 20___
|
$ | , 20___ |
Each such date on which Designated Securities are to be purchased hereunder is hereinafter referred
to as a “Delivery Date.”(4)]
Payment for the Designated Securities which the undersigned has agreed to purchase on [the]
[each] Delivery Date shall be made to the Company or its order by certified or official bank check
in Clearing House funds at the office of , , , or by wire
transfer to a bank account specified by the Company, on [the] [such] Delivery Date upon delivery to
the undersigned of the Designated Securities then to be purchased by the undersigned in definitive
fully registered form and in such denominations and registered in such names as the undersigned may
designate by written, telex or facsimile communication addressed to the Company not less than five
full business days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make payment for Designated
Securities on [the] [each] Delivery Date shall be subject to the condition that the purchase of
Designated Securities to be made by the undersigned shall not on [the] [such] Delivery Date be
prohibited under the laws of the jurisdiction to which the undersigned is subject. The obligation
of the undersigned to take delivery of and make payment for Designated Securities shall not be
affected by the failure of any purchaser to take delivery of and make payment for Designated
Securities pursuant to other contracts similar to this contract.
[The undersigned understands that Underwriters (the “Underwriters”) are also purchasing
Designated Securities from the Company, but that the obligations of the Undersigned hereunder are
not contingent on such purchases]. Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the Opinion of Counsel for the Company delivered to the
Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this contract, the undersigned
is not prohibited from purchasing the Designated Securities hereby agreed to be purchased by it
under the laws of the jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties hereto and their
respective successors, but will not be assignable by either party hereto without the written
consent of the other.
This contract may be executed by either of the parties hereto in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed Delivery Contract
(including this contract) is in the Company’s sole discretion and that, without limiting the
foregoing, acceptances of such contracts need not be on a first-come, first-served basis. If this
contract is acceptable to the Company, it is requested that the Company sign the form of acceptance
below and mail or deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the undersigned when such
counterpart is so mailed or delivered by the Company.
Yours very truly, | ||||||
By: | ||||||
(Authorized Signature) |
||||||
Name: | ||||||
Title: | ||||||
(Address) |
Accepted: , 20
SLM Funding LLC
By: |
||||
Name: | ||||
Title: |