Exhibit 1
EXECUTION COPY
SLM CORPORATION
$3,000,000,000
EdNotes SM
WITH MATURITIES OF 9 MONTHS OR MORE FROM DATE OF
ISSUE
AMENDED AND RESTATED SELLING AGENT
AGREEMENT
January 5, 2005
ABN AMRO Financial Services,
Inc.
327 Plaza Real, Suite 225
Boca Raton, FL 33432
and
The Agents listed on
Schedule A hereto
Dear Sirs:
SLM
Corporation, a Delaware corporation (the “ Company
”), proposes to issue and sell up to $3,000,000,000 aggregate
principal amount of its Medium Term Notes, Series B, also
known as EdNotes SM (the “ Notes ”), with
maturities of 9 months or more from date of issue pursuant to
the provisions of the Indenture, dated as of October 1, 2000
(the “ Original Indenture ”), between the
Company and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan
Chase Bank and The Chase Manhattan Bank), as trustee (“
JPMorgan Chase ”), as supplemented by the Fourth
Supplemental Indenture, dated as of January 16, 2003 (the
“ Fourth Supplemental Indenture ”), between the
Company and Deutsche Bank Trust Company Americas, as trustee
(“ Deutsche Bank ” or the " Trustee
”), as consented to by JPMorgan Chase, as amended by the
Amended Fourth Supplemental Indenture, dated as of
December 17, 2004 (the “ Amended Fourth Supplemental
Indenture ”), between the Company and the Trustee (the
Original Indenture, the Fourth Supplemental Indenture and the
Amended Fourth Supplemental Indenture, each as amended or
supplemented, collectively the “ Indenture ”).
The Notes shall have the maturity ranges, interest rates and other
terms set forth in the Prospectus referred to below as it may be
amended or supplemented from time to time. The Notes will be
issued, and the terms thereof established, from time to time by the
Company in accordance with the Indenture.
Subject to the
terms and conditions contained in this Amended and Restated Selling
Agent Agreement (the “ Agreement ”), the Company
hereby (1) appoints each of you as an agent of the Company
(individually, an “ Agent ” and collectively the
“ Agents ”) for the purpose of soliciting and
receiving offers to purchase Notes from the Company, and you hereby
agree to use your reasonable best efforts to solicit and receive
offers to purchase Notes upon terms acceptable to the Company at
such times and in such amounts as the Company shall from time to
time specify and in accordance with the terms hereof and
(2) agrees that whenever the Company
determines to sell Notes to you
as principal pursuant to this Agreement, such Notes shall be sold
pursuant to a Terms Agreement (as defined in Section IV(b)
below) relating to such sale in accordance with the provisions of
Section IV(b) hereof between the Company and ABN AMRO
Financial Services, Inc., as purchasing agent (the “
Purchasing Agent ”) for you. This Agreement shall not
be construed to create either an obligation on the part of the
Company to sell any Notes or an obligation of any of the Agents to
purchase Notes. The Company and certain agents of the Company are
parties to a Selling Agent Agreement, dated as of January 23,
2003 (the “ Original Selling Agent Agreement ”).
This Agreement is intended to amend, restate and supersede the
Original Selling Agent Agreement.
I.
The
Company has filed with the Securities and Exchange Commission (the
“ Commission ”) a registration statement on
Form S-3 (No. 333-107132) relating to the Notes and the
offering thereof, from time to time, in accordance with
Rule 415 under the Securities Act of 1933, as amended (the
“ Securities Act ”). Such registration
statement, including all documents incorporated therein by
reference, as from time to time amended or supplemented, is
referred to herein as the “ Registration Statement
”. The Registration Statement has been declared effective by
the Commission, and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the “ Trust
Indenture Act ”). The Company has prepared or will
promptly prepare for filing with, or transmission for filing to,
the Commission, pursuant to Rule 424 under the Securities Act,
a prospectus supplement (the “ Prospectus Supplement
”) and a prospectus (the “ Base Prospectus
”) for the purpose of supplying information in respect of the
public offering of the Notes. The Prospectus Supplement, together
with the Base Prospectus, including all documents incorporated
therein by reference, as from time to time amended or supplemented,
and including any supplement to the Prospectus that sets forth only
the terms of a particular issue of the Notes (each, a “
Pricing Supplement ”), are referred to collectively as
the “ Prospectus ”.
II.
Your obligations
hereunder are subject to the following conditions, each of which
shall be met on the date hereof or such other date as you and the
Company shall fix for the commencement of your obligations
hereunder (the “ Commencement Date
”):
(a) (i) No
litigation or proceeding shall be threatened or pending to restrain
or enjoin the issuance or delivery of the Notes, or which in any
way questions or affects the validity of the Notes and (ii) no
stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose
shall be pending before or threatened by the Commission and
(iii) there shall have been no material adverse change in the
consolidated financial condition of the Company and its
subsidiaries, considered as a whole (a “ Material Adverse
Change ”), from that set forth in the Registration
Statement and the Prospectus; and you shall have received on the
Commencement Date a certificate of the Company dated such
Commencement Date and signed by an executive officer of the Company
to the foregoing effect (the “ Officer’s
Certificate ”). The officer signing such certificate may
rely upon the best of his knowledge as to proceedings
threatened.
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(b) You shall
have received a favorable opinion from the Company’s general
counsel, dated the Commencement Date, to the effect
that:
(i) the Company is
a corporation validly existing and in good standing under the laws
of the State of Delaware and has the corporate power and authority
to own its properties and conduct its business as described in the
Prospectus;
(ii) the Company
is duly qualified to do business as a foreign corporation in good
standing in each jurisdiction in which the conduct of its business
requires such qualification and in which the failure to so qualify
would have a material adverse effect on the Company and its
subsidiaries considered as a whole;
(iii) the Company
has full power and authority to authorize, issue and sell the Notes
as contemplated by this Agreement;
(iv) the Indenture
has been duly authorized, executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors’ rights generally, general equitable principles and
the discretion of courts in granting equitable remedies; and the
Indenture has been duly qualified under the Trust Indenture
Act;
(v) the Notes have
been duly authorized and, when issued and delivered pursuant to
this Agreement and any Terms Agreement, will have been executed,
authenticated, issued and delivered in the manner provided for in
the Indenture against payment therefor, and will constitute legal,
valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject as to
enforcement of remedies, to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights
generally, general equitable principles and the discretion of
courts in granting equitable remedies;
(vi) this
Agreement has been duly authorized, executed and delivered by the
Company;
(vii) no
authorization, consent or approval of, or registration or filing
with, any governmental or public body or regulatory authority is
required on the part of the Company for the issuance of the Notes
in accordance with the Indenture or the sale of the Notes in
accordance with this Agreement other than the registration of the
Notes under the Securities Act, qualification of the Indenture
under the Trust Indenture Act and compliance with the securities or
Blue Sky laws of various jurisdictions;
(viii) the
execution and delivery of the Indenture, the issuance of the Notes
in accordance with the Indenture and the sale of the Notes pursuant
to this Agreement (a) do not and will not result in any
violation of the certificate of incorporation or bylaws of the
Company, (b) do not and will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any agreement or other instrument binding upon the
Company or any subsidiary of the Company that is a
“significant subsidiary” as
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defined in Rule 1-02(w) of
Regulation S-X under the Securities Act (each, a “
Significant Subsidiary ”) that is material to the
Company and its subsidiaries considered as a whole, and (c) do
not and will not result in a violation of any existing material
law, rule or regulation applicable to the Company or any of its
subsidiaries or any material judgment, order, writ, injunction or
decree known to such counsel of any governmental authority or court
having jurisdiction over the Company or any of its
subsidiaries;
(ix) the
statements in the Prospectus under the captions “Description
of Debt Securities”, “Description of EdNotes” and
“U.S. Federal Tax Consequences” insofar as such
statements constitute summaries of the documents (or provisions
thereof) or statutes (or provisions thereof) referred to therein,
fairly present the information required to be described with
respect to such documents (or provisions thereof) or statutes (or
provisions thereof) and fairly summarize in all material respects
such documents (or provisions thereof) or statutes (or provisions
thereof);
(x) the statements
(a) under the caption “Legal Proceedings” in the
Company’s Annual Report on Form 10-K for the year ended
December 31, 2003 and in Part II, Item 1 of the
Company’s Quarterly Reports on Form 10-Q for each of the
quarters ended March 31, 2004, June 30, 2004 and
September 30, 2004, and (b) in the Registration Statement
under Item 15, insofar as such statements constitute summaries
of the documents (or provisions thereof), statutes (or provisions
thereof) or legal proceedings referred to therein, fairly present
the information required to be described with respect to such
documents (or provisions thereof), statutes (or provisions thereof)
or legal proceedings and fairly summarize in all material respects
such documents (or provisions thereof), statutes (or provisions
thereof), or legal proceedings;
(xi) (A) the
Original Indenture filed by the Company with the Commission as an
exhibit to the Company’s Current Report on Form 8-K on
October 5, 2000, (B) the Fourth Supplemental Indenture
filed by the Company with the Commission as an exhibit to the
Company’s Current Report on Form 8-K on January 17,
2003, (C) the Amended Fourth Supplemental Indenture filed by
the Company with the Commission as an exhibit to the
Company’s Current Report on Form 8-K on December 17,
2004 and (D) the Officers’ Certificate amending and
restating the terms of the Notes, dated as of the date hereof,
conform in all material respects to the descriptions thereof in the
Prospectus;
(xii) there are no
(a) legal or governmental proceedings pending or, to the
knowledge of the Company’s general counsel, threatened to
which the Company or any Significant Subsidiary is a party, or to
which any of the properties of the Company or any Significant
Subsidiary is subject, that are required to be described in the
Registration Statement or the Prospectus and are not so described
or (b) statutes, regulations or contracts that are required to
be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not
described or filed as required;
(xiii) the
Registration Statement has become effective under the Securities
Act, and, to knowledge of the Company’s general counsel, no
stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no
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proceedings for that purpose have been
instituted or are pending under the Securities Act; and
(xiv)
(1) each document, if any, filed pursuant to the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), and incorporated by reference in the Prospectus, when
such document was filed with the Commission, complied as to form in
all material respects with the Exchange Act and the rules and
regulations thereunder; and (2) the Registration Statement, as
of its effective date, and the Prospectus, as of its issue date and
the Commencement Date, complied as to form in all material respects
with applicable requirements of the Trust Indenture Act and the
Securities Act and the rules and regulations thereunder (in each
case other than the financial statements and notes thereto, the
financial statement schedules and the other financial data and Form
T-1 included or incorporated by reference therein).
In addition, the
Company’s general counsel shall state that, although such
counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus as amended or
supplemented, nothing came to her attention that causes her to
believe that (A) the Registration Statement (other than the
financial statements and notes thereto, the financial statement
schedules and the other financial data and the Form T-1 included or
incorporated by reference therein), as of its effective date,
contained an untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading or (B) the
Prospectus (other than the financial statements and notes thereto,
the financial statement schedules and the other financial data
included or incorporated by reference therein), as amended or
supplemented, as of its issue date and as of the Commencement Date,
contained or contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(c) You shall
have received on the Commencement Date a letter dated the
Commencement Date from PricewaterhouseCoopers LLP, independent
auditors, containing statements and information of the type
ordinarily included in auditors’ “comfort
letters” to underwriters with respect to the financial
statements and certain financial information contained in or
incorporated by reference into the Registration Statement and the
Prospectus relating to the Notes.
(d) You shall
have received a favorable opinion of Gibson, Dunn & Crutcher
LLP, counsel for the Agents, dated such Commencement Date, to the
effect set forth in Section II(b) in clauses (iv), (v),
(vi) and (xiv)(2) and subsection (B) of the paragraph
following clause (xiv).
(e) You shall
have received a certificate of the secretary or assistant secretary
of the Company as to (i) the Certificate of Incorporation of
the Company, (ii) the Bylaws of the Company and (iii) the
resolutions authorizing the issuance and sale of the
Notes.
The
obligations of the Purchasing Agent to purchase Notes as principal,
both under this Agreement and under any Terms Agreement, are
subject to the conditions that (i) no litigation or
5
proceeding shall be threatened or
pending to restrain or enjoin the issuance or delivery of the
Notes, or which in any way questions or affects the validity of the
Notes, (ii) no stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for
such purpose shall be pending before or threatened by the
Commission and (iii) there shall have been no Material Adverse
Change, each of which conditions shall be met on the corresponding
Settlement Date (as defined in Section IV(b) hereof). Further,
if specifically agreed to by the parties to any Terms Agreement,
the Purchasing Agent’s obligations hereunder and under such
agreement shall be subject to such of the additional conditions set
forth in clause (a) above, as it relates to the
Officer’s Certificate, and clauses (b), (c), (d) and
(e) above, as agreed to by the parties, each of which such
agreed upon conditions shall be met on the corresponding Settlement
Date (as defined below).
III.
In
further consideration of your agreements herein contained, the
Company covenants as follows:
(a) To
furnish to the Purchasing Agent, on behalf of the Agents, without
charge, a copy of (i) the Indenture, (ii) the
Registration Statement including exhibits and documents
incorporated by reference therein, on the Commencement Date or such
later date on which such filings are to be transmitted for filing
with the Commission (provided, that with respect to documents to be
incorporated by reference into the Registration Statement, such
documents shall be furnished to the Purchasing Agent on or
reasonably promptly after the date on which such documents are
filed with the Commission); and (iii) as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto as you may reasonably
request.
(b) Before
amending or supplementing the Registration Statement or the
Prospectus (other than by (i) amendments or supplements to
change interest rates, (ii) amendments or supplements in the
form of the Company’s periodic filings to be filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act that are incorporated by reference in the
Prospectus or (iii) amendments or supplements that relate to
securities or indebtedness other than the Notes), to furnish the
Purchasing Agent a copy of each such proposed amendment or
supplement, and to afford the Purchasing Agent, on behalf of the
Agents, a reasonable opportunity to comment on any such proposed
amendment or supplement. If the Registration Statement is to be
amended in a manner that is unrelated to the Notes, the Company
will provide a copy of such amendment to the Purchasing
Agent.
(c) To
furnish the Purchasing Agent, on behalf of the Agents, copies of
each amendment and supplement to the Prospectus in such quantities
as the Purchasing Agent may from time to time reasonably request;
and if at any time when the delivery of a Prospectus shall be
required by law in connection with sales of any of the Notes,
either (i) any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include any
untrue statement of a material fact, or omit to state any material
fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading or
(ii) for any other reason it shall be necessary to amend or
supplement the latest Prospectus, as then amended or supplemented,
or to file under the Exchange Act any document incorporated
by
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reference in the Prospectus in
order to comply with the Securities Act or the Exchange Act, the
Company will (A) notify the Agents to suspend the solicitation
of offers to purchase Notes and if notified by the Company, the
Agents shall forthwith suspend such solicitation and cease using
the Prospectus as then amended or supplemented and (B), if the
Company notifies the Agents that it would like the Agents to resume
the solicitation of offers to purchase, promptly prepare and file
with the Commission such document incorporated by reference in the
Prospectus or an amendment or supplement to the Registration
Statement or the Prospectus which will correct such statement or
omission or effect such compliance and will provide to the Agents
without charge a reasonable number of copies thereof, which the
Agents shall use thereafter.
(d) To
endeavor to qualify such Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and to pay all reasonable expenses (including
fees and disbursements of counsel) in connection with such
qualification and in connection with the determination of the
eligibility of such Notes for investment under the laws of such
jurisdictions as you may designate; provided , that ,
in connection therewith the Company shall not be required to
qualify as a foreign corporation to do business, or to file a
general consent to service of process, in any
jurisdiction.
(e) The
Company will make generally available to its security holders and
to you as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering twelve month
periods beginning, in each case, not later than the first day of
the Company’s fiscal quarter next following the
“effective date” (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each
sale of Notes.
(f) (i) If
the Company and the Purchasing Agent mutually agree to list Notes
on any stock exchange (a “ Stock Exchange ”), to
use its reasonable efforts, in cooperation with the Purchasing
Agent, to cause such Notes to be accepted for listing on any such
Stock Exchange. In connection with any such agreement to list Notes
on a Stock Exchange, the Company shall use its reasonable efforts
to obtain such listing promptly and shall furnish any and all
documents, instruments, information and undertakings that may be
reasonably necessary or advisable in order to obtain and maintain
the listing.
(ii) So
long as any Note remains outstanding and listed on a Stock
Exchange, if the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state
any material fact relating to any matter described in the
Prospectus the inclusion of which was required by the listing rules
and regulations of such Stock Exchange on which any Notes are
listed (the “ Listing Rules ”) or by such Stock
Exchange, to provide to the Purchasing Agent information about the
change or matter and to amend or supplement the Prospectus in order
to comply with the Listing Rules or as otherwise requested by the
Stock Exchange.
(iii) To
use reasonable efforts to comply with any undertakings given by it
from time to time to any Stock Exchange on which any Notes are
listed.
(g) To notify
the Purchasing Agent promptly in writing in the event that the
Company does not have a security listed on the New York Stock
Exchange.
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(h) Upon
receipt of a ratings letter from either Moody’s Investors
Service, Inc. (“ Moody’s ”) or Standard
& Poor’s Ratings Services (“ S&P
”) as to the ratings they have accorded the EdNotes
medium-term note program (the “ Program ”), the
Company will promptly forward copies of any such letter to the
Purchasing Agent; provided, however, that the Company shall only be
required to forward to the Purchasing Agent the first such letter
received from each of Moody’s and S&P, and any subsequent
letters reflecting a change in the ratings of the Program accorded
by either Moody’s or S&P.
(i) The
Company will notify the Agents as promptly as practicable, and
confirm such notice in writing, of any change in the rating
assigned by any nationally recognized statistical rating
organization, as such term is defined in Rule 436(g)(2) under
the Securities Act, to the Program, any debt securities (including
the Notes) of the Company, or the public announcement by any
nationally recognized statistical rating organization that it has
under surveillance or review, with possible negative implications,
its rating of the Program or any such debt securities, or the
withdrawal by any nationally recognized statistical rating
organization of the Program or any its rating of any such debt
securities.
IV.
(a)
Solicitations as Agent . You hereby agree, as Agents
hereunder, to use your reasonable best efforts to solicit and
receive offers to purchase Notes upon the terms and conditions set
forth herein and in the Prospectus and upon the terms communicated
to you from time to time by the Company. For the purpose of such
solicitation you will use the Prospectus as then amended or
supplemented which has been most recently distributed to you by the
Company, and you will solicit offers to purchase only as permitted
or contemplated thereby and herein. The Company reserves the right,
in its sole discretion, to suspend solicitation of offers to
purchase Notes commencing at any time for any period of time or
permanently. Upon receipt of instructions (which may be given
orally) from the Company, you will as soon as practicable, but in
any event no later than one business day after receipt of such
instructions, suspend solicitation of offers to purchase until such
time as the Company has advised you that such solicitation may be
resumed.
You
are authorized to solicit orders for the Notes only in
denominations of $1,000 or more (in multiples of $1,000). You are
not authorized to appoint subagents or to engage the service of any
other broker or dealer in connection with the offer or sale of the
Notes without the consent of the Company; provided ,
however , the Purchasing Agent may engage the service of any
other broker or dealer without the consent of the Company. The
Purchasing Agent will, however, on a periodic basis, provide the
Company with a listing of those brokers or dealers so engaged. In
addition, unless otherwise instructed by the Company, the
Purchasing Agent shall communicate to the Company, orally or in
writing, the aggregate amount of offers to purchase each proposed
issuance of Notes. The Company shall have the sole right to accept
offers to purchase Notes offered through you and may reject any
proposed purchase of Notes as a whole or in part. You shall have
the right, in your discretion reasonably exercised, to reject any
proposed purchase of Notes, as a whole or in part, and any such
rejection shall not be deemed a breach of your agreements contained
herein.
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The
Company agrees to pay the Purchasing Agent, as consideration for
soliciting the sale of the Notes, a concession in the form of a
discount equal to the percentages of the principal amount of each
Note sold not in excess of the concession set forth in
Exhibit A hereto (the “ Concession ”).
Notwithstanding the foregoing, for Notes that bear a zero interest
rate and are issued at a substantial discount from the principal
amount payable at the Maturity Date (a “ Zero-Coupon
Note ”), the Company agrees to pay the Purchasing Agent,
as consideration for soliciting the sale of the Zero-Coupon Notes,
a Concession in the form of a discount equal to the percentages of
the initial offering price of each Zero-Coupon Note sold not in
excess of the Concession set forth in Exhibit A hereto. The
Purchasing Agent and the other Agents will share the Concession in
such proportions as they may agree.
Except as provided
in Section IV(b) hereof, in soliciting offers to purchase
Notes from the Company, you are acting solely as agent for the
Company and not as principal. If acting on behalf of the Company on
an agency basis, you will make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to
purchase Notes has been accepted by the Company, but you shall not
have any liability to the Company in the event such purchase is not
consummated for any reason, other than to repay to the Company any
Concession with respect thereto.
(b)
Purchases as Principal . Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this
Agreement and a separate agreement, substantially in the form of
Exhibit C hereto, to be entered into on behalf of such
Agent(s) by the Purchasing Agent, which will provide for the sale
of such Notes to, and the purchase and reoffering thereof by, the
Purchasing Agent as principal. Each such separate agreement (which
may be an oral agreement and confirmed in writing as described
below between the Purchasing Agent and the Company) is herein
referred to as a “ Terms Agreement ”. A Terms
Agreement may also specify certain provisions relating to the
reoffering of such Notes by the Purchasing Agent. The Purchasing
Agent’s agreement to purchase Notes pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the
representations, warranties and agreements of the Company herein
contained and shall be subject to the terms and conditions herein
set forth. Except pursuant to a Terms Agreement, under no
circumstances shall you be obligated to purchase any Notes for your
own account. Each Terms Agreement, whether oral (and confirmed in
writing which may be by facsimile transmission) or in writing,
shall describe the Notes to be purchased pursuant thereto by the
Purchasing Agent as principal, and may specify, among other things,
the principal amount of Notes to be purchased, the interest rate or
formula and maturity date or dates of such Notes, the interest
payment dates, if any, the price to be paid to the Company for such
Notes, the initial public offering price at which the Notes are
proposed to be reoffered, and the time and place of delivery of and
payment for such Notes (the “ Settlement Date
”), whether the Notes provide for a survivor’s option
or for optional redemption by the Company and on what terms and
conditions, and any other relevant terms. Terms Agreements may take
the form of an exchange of any standard form of written
telecommunication between the Purchasing Agent and the
Company.
In
connection with the resale of the Notes purchased, without the
consent of the Company, you are not authorized to appoint subagents
or to engage the service of any other broker or dealer, nor may you
reallow any portion of the discount paid to you by the Company in
excess of the designated reallowance portion; provided ,
however , that the Purchasing Agent may
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engage the service of any other
broker or dealer without the consent of the Company. The Purchasing
Agent will however, on a periodic basis, provide the Company with a
listing of those brokers or dealers so engaged. Unless authorized
by the Purchasing Agent in each instance, each Agent agrees not to
purchase and sell Notes for which an order from a client has not
been received.
Each purchase of
Notes by the Purchasing Agent from the Company shall be at a
discount from the principal amount of each such Note on the date of
issue not in excess of the applicable Concession set forth in
Exhibit A hereto. Notwithstanding the foregoing, for
Zero-Coupon Notes, each purchase of Zero-Coupon Notes by the
Purchasing Agent from the Company shall be at a discount from the
initial offering price of each such Note on the date of issue not
in excess of the applicable Concession set forth in Exhibit A
hereto.
(c)
Public Offering Price . Unless otherwise authorized by the
Company, all Notes shall be sold to the public at a purchase price
not to exceed 100% of the principal amount thereof, plus accrued
interest, if any, with the exception of Zero-Coupon Notes.
Zero-Coupon Notes shall be sold to the public at a purchase price
no greater than an amount, expressed as a percentage of the
principal face amount of such Notes, equal to (i) the net
proceeds to the Company on the sale of such Notes, plus
(ii) the Concession, plus (iii) accrued interest, if any.
Such purchase price shall be set forth in the confirmation
statement of the Selling Group (as defined in Exhibit B)
member responsible for such sale, and delivered to the purchaser
along with a copy of the Prospectus (if not previously delivered)
and Pricing Supplement.
(d)
Procedures . Procedural details relating to the issue and
delivery of, and the solicitation of offers to purchase and payment
for, the Notes, whether under Section IV(a) or IV(b) of this
Agreement, are set forth in the Administrative Procedures attached
hereto as Exhibit B, as amended from time to time (the “
Procedures ”). The provisions of the Procedures shall
apply to all transactions contemplated hereunder. You and the
Company each agree to perform the respective duties and obligations
specifically provided to be performed by each in the Procedures.
The Procedures may only be amended by written agreement of the
Company and each of you.
(e)
Prospectus Delivery; Marketing Materials . Each of the
Agents shall, as required by applicable law, furnish to each person
to whom it sells or delivers Notes a copy of the Prospectus (as
then amended or supplemented) or, if delivery of the Prospectus is
not required by applicable law, inform each such person that a copy
thereof (as then amended or supplemented) will be made available
upon request. No Agent is authorized to give any information or to
make any representation not contained in the Prospectus or the
documents incorporated by reference or specifically referred to
therein in connection with the offer and sale of the Notes. No
Agent will use any marketing materials other than the Prospectus in
connection with any offer or sale of the Notes except for marketing
materials prepared by the Company, if any, and furnished to the
Agents together with written authorization from the Company to the
Purchasing Agent to use the same in connection with the offering of
the Notes. If any Agent elects to distribute these additional
marketing materials under the so called “free writing”
exemption embodied in Section 2(10)(a) of the Securities Act
(any such marketing materials, “ Free Writing
Materials ”), such Agent will use its best efforts to
ensure that any intended recipients of such Free Writing Materials
receive a Prospectus either prior to or concurrently with their
receipt of
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the Free Writing Materials and to
cause any such Free Writing Materials to include any and all
legislatively mandated disclaimers concerning securities of the
Company as may be supplied by the Company to the Purchasing Agent.
The Company agrees that the Purchasing Agent may utilize the
Company’s name, logo and “EdNotes” and
“Education Leads Us” service marks, and any other
service marks to which the Company consents to in writing, to
identify the Company as a member of the Purchasing Agent’s
Direct Access Notes program (the “ Direct Access Notes
Program ”) in the Purchasing Agent’s general
materials and marketing objectives relating to the Direct Access
Notes Program (the “ Marketing Materials ”) that
are provided to and approved in writing by the Company prior to
their use. The Company hereby grants the Purchasing Agent a
non-exclusive, nonsublicenseable, revocable, royalty-free license
to use the Company’s name, logo and “EdNotes” and
“Education Leads Us” service marks, and any other
service marks to which the Company consents to in writing, solely
in connection with their use in Marketing Materials that are
provided to and approved in writing by the Company prior to their
use. Any approvals from or authorizations by the Company under this
Section IV(e) may be transmitted by the Company electronically
or by facsimile to the Purchasing Agent and must be granted by an
officer of the Company with the title of Vice President or higher,
or any authorized agent thereof.
V.
The
Company represents and warrants to the Agents that as of the date
hereof, as of each date on which the Company accepts an offer to
purchase Notes (including any purchase by the Purchasing Agent as
principal, pursuant to a Terms Agreement or otherwise), as of each
date the Company issues and sells Notes and as of each date the
Registration Statement or the Prospectus is amended or supplemented
in connection with the Notes:
(a) (i) each
document, if any, filed, or to be filed, pursuant to the Exchange
Act and incorporated by reference in the Prospectus complied when
so filed, or will comply, in all material respects with such Act
and the rules and regulations thereunder; (ii) the
Registration Statement, when it became effective, did not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; (iii) each Prospectus, if
any, filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities
Act and the applicable rules and regulations thereunder;
(iv) the Registration Statement and each Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules
and regulations thereunder; and (v) the Registration Statement
and each Prospectus do not and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(b) the
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of
each other jurisdiction in which it conducts any business so as to
require such qualification, or is subject to no material liability
or disability by reason of the failure to be so qualified in any
such jurisdiction;
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(c) the
Company’s authorized capital stock is as set forth in the
Prospectus under “Description of Capital Stock” and all
of the issued shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and
non-assessable;
(d) the Notes
have been duly authorized and, when issued and delivered pursuant
to this Agreement and any Terms Agreement, will have been executed,
authenticated, issued and delivered in the manner provided for in
the Indenture against payment therefor, and will constitute legal,
valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject, as to
enforcement of remedies, to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights
generally, general equitable principles and the discretion of
courts in granting equitable remedies; the Indenture has been duly
authorized, executed and delivered by the Company and constitutes a
legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject, as to
enforcement of remedies, to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights
generally, general equitable principles and the discretion of
courts in granting equitable remedies; and the Indenture has been
duly qualified under the Trust Indenture Act; and the Indenture
conforms and the Notes of any particular issuance of Notes will
conform in all material respects to the descriptions thereof
contained in the Prospectus as amended or supplemented that relate
to such issuance of Notes;
(e) other
than as set forth in the Prospectus, the Company and each of its
subsidiaries have conducted their businesses and are in compliance
in all material respects with all applicable federal and state laws
and regulations, except for any noncompliance which would not have
a material adverse effect on the Company and its subsidiaries
considered as a whole;
(f) the issue
and sale of the Notes, the compliance by the Company with all of
the provisions of the Notes, the Indenture, this Agreement and any
Terms 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, (i) the Certificate of
Incorporation or Bylaws of the Company, (ii) any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of
its subsidiaries is subject, the non-compliance with which, either
singly or in the aggregate, could not reasonably be expected to
have a material adverse effect on (A) the Company and its
subsidiaries taken as a whole or (B) the Company’s
ability to enter into this Agreement and to issue the Notes, or
(iii) any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its properties, the non-compliance with which,
either singly or in the aggregate, could not reasonably be expected
to have a material adverse effect on (A) the Company and its
subsidiaries taken as a whole or (B) the Company’s
ability to enter into this Agreement and to issue the Notes; and no
consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body
is required for the solicitation of offers to purchase Notes, the
issue and sale of the Notes or the consummation by the Company of
the other transactions contemplated by this Agreement, any Terms
Agreement or the Indenture, except such as have been, or will have
been prior to the Commencement Date, obtained under the Securities
Act or the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue
12
Sky laws in connection with the
solicitation by you of offers to purchase Notes from the Company
and with purchases of Notes by you as principal, as the case may
be, in each case in the manner contemplated hereby;
(g) other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending or, to the Company’s
knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any property of the Company or
any of its subsidiaries is subject, which are of a character that
are required to be disclosed in the Prospectus which have not been
properly disclosed therein;
(h) immediately
after any sale of Notes by the Company hereunder or under any Terms
Agreement, the aggregate amount of Notes which shall have been
issued and sold by the Company hereunder or under any Terms
Agreement and of any debt securities of the Company (other than
such Notes) that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of debt
securities registered under the Registration Statement;
(i) the
Company is not, and, after giving effect to the offering and sale
of the Notes and the application of the proceeds thereof as
described in the Prospectus, the Company will not be, required to
register as an “investment company” as such term is
defined in the Investment Company Act of 1940, as
amended;
(j) the
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus present fairly in all
material respects the consolidated financial position, results of
operations and cash flows of the entities purported to be shown
thereby, at the dates and for the periods indicated and have been
prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods
indicated and conform in all material respects with the Securities
Act, except as otherwise noted therein; and
(k) the
Company’s senior unsubordinated debt securities are rated A2
by Moody’s and A by S&P, or, after the Commencement Date,
such other rating as to which the Company shall have most recently
notified the Agents pursuant to Section III(i)
hereof.
The
above representations and warranties shall not apply to any
statements or omissions made in the Prospectus in reliance upon and
in conformity with information furnished in writing to the Company
by any Agent expressly for use therein. Each acceptance by the
Company of an offer for the purchase of Notes and each issuance of
Notes shall be deemed an affirmation by the Company that the
foregoing representations and warranties are true and correct at
the time, as the case may be, of such acceptance or of such
issuance, in each case as though expressly made at such time. The
representations, warranties and covenants of the Company shall
survive the execution and delivery of this Agreement and the
issuance and sale of the Notes.
Unless the Company
has suspended the solicitation of offers to purchase Notes pursuant
to paragraph (a) of Article IV, each time the
Registration Statement or the Prospectus shall be amended or
supplemented (other than by means of a pricing supplement or a
prospectus supplement that does not relate to the Notes) by the
filing of a post-effective amendment with the Commission, or the
filing by the Company of a Form 10-K or Form 10-Q pursuant to
Section 13
13
of the Exchange Act, or, if so
agreed in connection with a particular transaction, the Company
shall furnish the Agents with (1) a written opinion, dated the
date of such amendment, filing or as otherwise agreed, of the
Company’s general counsel, in substantially the form
previously delivered under Section II(b), but modified, as
necessary, to relate to the Registration Statement and the
Prospectus as amended or supplemented at such date; (2) a
letter, dated the date of such amendment, filing or as otherwise
agreed, of PricewaterhouseCoopers LLP, independent auditors, in
substantially the form previously delivered under
Section II(c), but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended or
supplemented at such date; and (3) a certificate, dated the
date of such amendment, filing or as otherwise agreed and signed by
an executive officer of the Company, in substantially the form
previously delivered under Section II(a), but modified, as
necessary, to relate to the Registration Statement and the
Prospectus as amended or supplemented at such date.
VI.
(a) The
Company agrees to indemnify and hold harmless you, each person, if
any, who controls (within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act) you and
each of your and such controlling person’s officers and
directors against any and all losses, liabilities, costs or claims
(or actions in respect thereof) to which any of them may become
subject (including all reasonable legal and other costs of
investigating, disputing or defending any such claim or action),
insofar as such losses, liabilities, costs or claims (or actions in
respect thereof) arise out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement or any Prospectus, or any amendment
or supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading provided ,
however, that the Company shall not be liable for any such
loss, liability, cost, action or claim arising from any statements
or omissions made in reliance on and in conformity with written
information provided by you through the Purchasing Agent to the
Company expressly for use in the Registration Statement or
Prospectus or any amendment or supplement thereto.
(b) Each
Agent severally agrees to indemnify and hold harmless the Company,
each person, if any, who controls (within the meaning of either
Section 15 of the Securities Act or Section 20 of the
Exchange Act) the Company, and the Company’s and such
controlling person’s officers and directors from and against
any and all losses, liabilities, costs or claims (or actions in
respect thereof) to which any of them may become subject (including
all reasonable legal and other costs of investigating, disputing or
defending any such claim or action), insofar as such losses,
liabilities, costs or claims (or actions in respect thereof) arise
out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement or Prospectus, or any amendment or supplement thereto, or
any omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, in each
case only to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in
reliance on and in conformity with written information furnished to
the Company by such Agent expressly for use therein.
(c) If any
claim, demand, action or proceeding (including any governmental
investigation) shall be brought or alleged against an indemnified
party in respect of which indemnity is to be sought against an
indemnifying party pursuant to the preceding paragraphs,
14
the indemnified party shall,
promptly after receipt of notice of the commencement of any such
claim, demand, action or proceeding, notify the indemnifying party
in writing of the commencement of such claim, demand, action or
proceeding, enclosing a copy of all papers served, if any;
provided , that , the omission to so notify such
indemnifying party will not relieve the indemnifying party from any
liability that it may have to any indemnified party under the
foregoing provisions of this Section VI unless, and only to
the extent that, such omission results in the forfeiture of
substantive rights or defenses by the indemnifying party. In case
any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with
counsel reasonably 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 will not be
liable to such indemnified party under this Section VI for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable
costs of investigation. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the
reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the indemnifying party has
assumed the defense of such proceeding and has failed within a
reasonable time to retain counsel reasonably satisfactory to such
indemnified party or (iii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to
actual or potential conflicts of interests between them. It is
agreed that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees and expenses of more than one
separate law firm (in addition to local counsel where reasonably
necessary) for all such indemnified parties. Such firm shall be
designated in writing by the indemnified party. The indemnifying
party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of
such proceeding.
(d) If the
indemnification provided for in this Section VI is unavailable
to or insufficient to hold harmless an indemnified party under the
preceding paragraphs of this Section VI 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 on the one
hand and each Agent on the other from the offering of the Notes 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,
15
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 on the
one hand and each Agent 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 on the one hand and each Agent on the other
shall be deemed to be in the same proportion as the total net
proceeds from the sale of Notes (before deducting expenses)
received by the Company bear to the total commissions or discounts
received by such Agent in respect thereof. 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 required to
be stated therein or necessary in order to make the statements
therein not misleading relates to information supplied by the
Company on the one hand or by any Agent on the other and the
parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and each Agent agree that it would not be just and
equitable if contribution pursuant to this subsection (d) of
Section VI were determined by per capita allocation (even if
all Agents 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) of Section VI. 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) of Section VI 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) of Section VI, no Agent shall be required to
contribute any amount in excess of the amount by which the total
public offering price at which the Notes purchased by it in the
offering giving rise to the damages were sold exceeds the amount of
any damages which such Agent has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty
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