EXHIBIT 1.1
SLM FUNDING LLC
STUDENT LOAN-BACKED NOTES
UNDERWRITING AGREEMENT
JULY 20, 2004
CITIGROUP GLOBAL MARKETS INC.
000 XXXXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
XXXXXXX, XXXXX & CO.
00 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
AND
XXXXXX BROTHERS INC.
000 0XX XXXXXX
XXX XXXX, XXX XXXX 00000
Ladies and Gentlemen:
From time to time, SLM Education Credit Finance Corporation ("SLM ECFC"),
a Delaware corporation, and SLM Funding LLC, a Delaware limited liability
company and a wholly-owned subsidiary of SLM ECFC (the "Company"), propose to
enter into one or more Pricing Agreements (each a "Pricing Agreement") in the
form of Annex I hereto, with such additions and deletions as the parties thereto
may determine. Subject to the terms and conditions stated herein and therein,
the Company proposes to cause the Trust specified in the applicable Pricing
Agreement to issue and sell to the firms named in Schedule I to the applicable
Pricing Agreement (each firm constituting the "Underwriter" with respect to such
Pricing Agreement and the securities specified therein) certain of such Trust's
Student Loan-Backed Notes (the "Notes") specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the "Designated Securities"),
less the principal amount of Designated Securities covered by Delayed Delivery
Contracts, if any, as provided in Section 3 hereof and as may be specified in
Schedule II to such Pricing Agreement (with respect to such Pricing Agreement,
any Designated Securities to be covered by Delayed Delivery Contracts are herein
sometimes referred to as "Contract Securities" and the Designated Securities to
be purchased by the Underwriters (after giving effect to the deduction, if any,
for Contract Securities) are herein sometimes referred to as "Underwriters'
Securities").
The Securities may be sold from time to time in one or more Series. Each
Series of Securities, which will include one or more classes of Notes and may
include one or more classes of Student Loan-Backed Certificates (the
"Certificates," and, together with the Notes, the "Securities") will be issued
by a Trust to be formed with respect to such Series (each, a "Trust"). Each
Trust will be formed pursuant to a trust agreement (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 pursuant to a Purchase Agreement and (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. 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 Trust will enter into an Interest Rate Cap Agreement with Xxxxxxx
Xxxxx Mitsui Marine Derivative Products, L.P., dated July 20, 2004.
The terms and conditions of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the related Indenture.
Capitalized terms used but not defined herein or in any Pricing Agreement
shall have the meanings ascribed thereto in the related Indenture.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriter of such Securities, for whom the firms designated as
representatives of the Underwriter of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an
2
obligation of any of the Underwriters to purchase the Securities. The obligation
of the Company to issue and sell any of the Securities and the obligation of any
of the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriter of such Designated Securities,
the names of the Underwriter of such Designated Securities, the names of the
Representatives of such Underwriter and the principal amount of such Designated
Securities to be purchased by each Underwriter and whether any of such
Designated Securities shall be covered by Delayed Delivery Contracts (as defined
in Section 3 hereof) and shall set forth the date, time and manner of delivery
of such Designated Securities and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company and 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), (o) and (p)
of this Section 2 with respect to SLM ECFC, 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. 333-104887),
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,
3
each as amended at the time such part of the registration statement became
effective, are hereinafter collectively called the "Registration
Statement;" the prospectus relating to the Securities, in the form in
which it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, being hereinafter
called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the applicable
form under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any reference
to the Prospectus as amended or supplemented shall be deemed to refer to
the Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of
the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Act,
the Exchange Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), as applicable, and the rules and regulations of
the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act, the Exchange Act and the Trust Indenture Act,
as applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture
4
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) 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, 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 and 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 and 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 and 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 and otherwise) to own its
properties and conduct its business as described in the Prospectus
Supplement 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;
5
(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 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
6
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 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 Form 8-K, 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 and any of its subsidiaries, taken as
a whole, 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
7
representations and warranties in the Sale Agreement and Trust Agreement
and the Servicer's representations and warranties in the Servicing
Agreement will be true and correct in all material respects; and
(p) In the event any of the Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts has
been duly authorized by the Company and 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 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
8
time and date as the Representatives and the Company may agree upon in writing),
a written notice setting forth the principal amount of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by wire
transfer or by certified or official bank check or checks, payable to the order
of the Company in the funds specified in such Pricing Agreement, all in the
manner and at the place and time and date specified in such Pricing Agreement or
at such other place and time and date as the Representatives and the Company may
agree upon in writing, such time and date being herein called the "Time of
Delivery" for such Securities.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of the party designated in the
Pricing Agreement relating to such Underwriters' Securities in the amount of any
compensation payable by the Company to the Underwriters in respect of any
Delayed Delivery Contracts as provided in Section 3 hereof and the Pricing
Agreement relating to such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities, and 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 or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of such Designated
Securities, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
9
with the Commission, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any prospectus
relating to the Designated Securities, of the suspension of the
qualification of such Designated Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any
prospectus relating to the Designated Securities or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal
of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Designated
Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of such Designated Securities, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented, in such quantities as the Representatives may
from time to time reasonably request, and, if the delivery of a Prospectus
is required at any time in connection with the offering or sale of the
Designated Securities and if at such time any event shall have occurred as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and, upon their
request, to file such document and to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To cause the Trust to make generally available to holders of
Designated Securities, as soon as practicable, but in any event not later
than eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earnings statement
of the Trust (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158); and
10
(e) To apply the net proceeds of the offering and sale of the
Designated Securities and the related Certificates that it receives in the
manner set forth in the Prospectus.
6. The Company and 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.
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 SLMA
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
11
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 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 and the Servicer, satisfactory to the
Representatives, shall have furnished to the Representatives a written
opinion or opinions, dated the Time of Delivery for such Designated
Securities, substantially in the form attached hereto as Annex II(c) or as
is otherwise satisfactory to the Representatives;
(e) Counsel for the Eligible Lender Trustee, satisfactory to the
Representatives, shall have furnished to the Representatives a written
opinion or opinions, dated the Time of Delivery for such Designated
Securities, substantially in the form attached hereto as Annex II(d) or as
is otherwise satisfactory to the Representatives;
(f) Counsel for the Indenture Trustee, satisfactory to the
Representatives, shall have furnished to the Representatives a written
opinion or opinions, dated the Time of Delivery for such Designated
Securities, substantially in the form attached hereto as Annex II(e) or as
is otherwise satisfactory to the Representatives;
(g) At the time a Preliminary Prospectus relating to such
Designated Securities was distributed and on the date of the Pricing
Agreement for such Designated Securities, the independent public
accountants of the Company and 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
12
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in such
financial statements; 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 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:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange or any setting of minimum prices for
trading on such exchange; (ii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities; or
(iii) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or
war, if the effect of any such event specified in this clause (iii) in the
reasonable judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Underwriters' Securities on the terms and in the manner contemplated in
the Prospectus as theretofore amended or supplemented relating to the
Designated Securities;
(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,
13
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 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
14
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 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
15
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 and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company, 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
16
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 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
17
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.
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 Xxxxxx Xxx Xxxxx
XXX 0000
Xxxxxx, XX 00000
18
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 Xxxxxx Xxx Xxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: J. Xxxxx Xxxxxx,
Vice President, Finance
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, 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 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.
19
IF THE FOREGOING IS IN ACCORDANCE WITH YOUR UNDERSTANDING, PLEASE SIGN AND
RETURN TO US 9 COUNTERPARTS HEREOF.
Very truly yours,
SLM FUNDING LLC
By: /s/ J. XXXXX XXXXXX
Name: J. Xxxxx Xxxxxx
Title: Vice President
SLM EDUCATION CREDIT FINANCE
CORPORATION
By: /s/ J XXXXX XXXXXX
Name: J. Xxxxx Xxxxxx
Title: Vice President
Accepted and agreed with respect to
Sections 8, 10, 12 and 13 of this Agreement:
SLM CORPORATION
By: /s/ X.X. XXXXXXX
Name: X.X. Xxxxxxx
Title: Executive Vice President
Accepted as of the date hereof:
CITIGROUP GLOBAL MARKETS, INC.
By: /s/ XXXX X. XXXXXX, XX.
Name: Xxxx X. Xxxxxx, Xx.
Title: Director
XXXXXXX, XXXXX & CO.
By: /s/ XXXXXXX, SACHS & CO.
(Xxxxxxx, Xxxxx & Co.)
XXXXXX BROTHERS, INC.
By: /s/ XXXXXX XXXXXXX
Name: Xxxxxx Xxxxxxx
Title: Managing Director
21
ANNEX I
PRICING AGREEMENT
______________________
AS REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS NAMED ON SCHEDULE I HERETO,
C/O____________________
_______________________
_______________________
_______________________ , 200_
Ladies and Gentlemen:
SLM Funding LLC, a Delaware limited liability company (the "Company"), and
the 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 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 Act 2000
(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 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
2
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company and SLMA 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:
3
Accepted as of the date hereof:
_______________________
By: ____________________________________
Name:
Title:
_______________________
By: _____________________________________
Name:
Title:
4
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 2004-7
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 2004-6]
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 2004-6]
ANNEX II(d)
ELIGIBLE LENDER TRUSTEE: COUNSEL OPINION
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2004-6]
ANNEX II(e)
INDENTURE TRUSTEE: COUNSEL OPINION
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2004-6]
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__
_____________________, 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:
