EXECUTED
VERSION
SLC
Private Student Loan Trust 2006-A
$3,054,755,000
Student Loan
Asset-Backed Notes
UNDERWRITING
AGREEMENT
December 11, 2006
Citigroup Global Markets Inc.,
388 Greenwich Street, 19th Floor
New York, New York 10013
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated
4 World Financial Center
New York, NY 10080
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
SLC Private Student Loan Trust 2006-A, a
Delaware statutory trust (the “Company”), proposes to
sell to Citigroup Global Markets Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Goldman, Sachs & Co. (each
an “Underwriter” and collectively, the
“Underwriters”), pursuant to the terms of this
Underwriting Agreement (this “Agreement”),
$3,054,755,000 aggregate principal amount of its Student Loan
Asset-Backed Notes (the “Notes”) in the classes and
initial principal amounts set forth on Schedule A hereto.
The Notes will be issued under an Indenture, to be dated as
of December 15, 2006 (the “Indenture”), among the
Company, U.S. Bank National Association, as indenture trustee
(the “Indenture Trustee”), and Citibank, N.A., as
indenture administrator (in such capacity, the “Indenture
Administrator”). Upon issuance, the Notes will be
secured by, among other things, Trust Student Loans (as defined in
the Indenture) pledged to the Indenture Trustee and described in
the Prospectus (as defined in Section 3 below). The
Trust Student Loans will be serviced by The Student Loan
Corporation, a Delaware corporation (“SLC”), pursuant
to a Servicing Agreement, to be dated as of December 15, 2006 (the
“Servicing Agreement”), between SLC, as Servicer and
Administrator, and the Company. SLC will enter into a
Subservicing Agreement with Citibank South Dakota, National
Association, a national banking association (the
“Sub-Servicer”), to be dated as of December 15, 2006
(the “Subservicing Agreement”), pursuant to which the
Sub-Servicer will act as subservicer with respect to the Trust
Student Loans.
This Agreement, the Master Terms Purchase
Agreement, to be dated as of December 15, 2006 (along with the
related Purchase Agreement, the “SLC Sale Agreement”),
between SLC and SLC Student Loan Receivables I, Inc. (“SLC
Receivables”), the Master Terms Sale Agreement, to be dated
as of December 15, 2006 (along with the related Sale Agreement, the
“SLC Receivables Sale Agreement” and, collectively with
the SLC Sale Agreement, the “Sale Agreements”), between
SLC Receivables and the Company, the Short-Form Trust Agreement,
dated as of December 8, 2006, between Wilmington Trust Company, as
owner trustee (the “Owner Trustee”), and SLC
Receivables, as depositor (in such capacity, the
“Depositor”), as amended and restated pursuant to the
Amended and Restated Trust Agreement, to be dated as of December
15, 2006 (the “Trust Agreement”), between the Owner
Trustee and the Depositor, the Administration Agreement, to be
dated as of December 15, 2006 (the “Administration
Agreement”), between SLC, as servicer and administrator, and
the Company, the Subadministration Agreement, to be dated as of
December 15, 2006 (the “Subadministration Agreement”),
between SLC, as administrator, and CitiMortgage, Inc., as
sub-administrator (the “Sub-Administrator”), the
Servicing Agreement, the Subservicing Agreement, the Indenture and
the ISDA Master Agreement and related schedule and confirmation
(collectively, the “Swap Agreement”) between the
Company and Goldman Sachs Mitsui Marine Derivative Products, L.P.
(the “Swap Counterparty”) shall collectively
hereinafter be referred to as the “Basic
Documents”.
Capitalized terms used herein without
definition shall have the meanings ascribed to them in the
Indenture or the Prospectus.
The Company proposes, upon the terms and
conditions set forth herein, to sell to each of the Underwriters on
the Closing Date (as hereinafter defined) the aggregate principal
amount of each class of Notes set forth next to the name of each
Underwriter on Schedule A hereto.
The Company wishes to confirm as follows
this Agreement with the Underwriters in connection with the
purchase and resale of the Notes.
1.
Agreements to Sell, Purchase and
Resell .
(a) The Company hereby
agrees, subject to all the terms and conditions set forth herein,
to sell to each of the Underwriters and, upon the basis of the
representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions set forth
herein, each of the Underwriters, severally and not jointly, agrees
to purchase from the Company, such principal amount of each class
of the Notes at such respective purchase prices as are set forth
next to the name of such Underwriter on Schedule A
hereto.
(b)
It is understood that the Underwriters
propose to offer the Notes for sale to the public (which may
include selected dealers) as set forth in the
Prospectus.
2.
Delivery of the Notes and Payment
Therefor .
Delivery to the Underwriters of and
payment for the Notes shall be made at the office of McKee Nelson
LLP, New York, New York, at 12:00 p.m., New York time, on December
15, 2006 (the “Closing Date”). The place of such
closing and the Closing Date may be varied by agreement between the
Underwriters and the Company.
The Notes will be delivered to the
Underwriters against payment of the purchase price therefor to the
Company in Federal Funds, by wire transfer to an account at a bank
acceptable to the Underwriters, or such other form of payment as to
which the parties may agree. Unless otherwise agreed to by
the Company and the Underwriters, each class of Notes will be
evidenced by a single global security in definitive form deposited
with the Indenture Trustee as custodian for The Depository Trust
Company (“DTC”) and will be registered in the name of
Cede & Co. as nominee of DTC. The Notes to be delivered
to the Underwriters shall be made available to the Underwriters in
New York, New York, for inspection and packaging not later than
11:30 a.m., New York City time, on the business day next preceding
the Closing Date.
3.
Representations and Warranties of
the Company .
The Company represents
and warrants to each of the Underwriters that:
(a)
A registration statement on Form S-3 (No.
333-133028) including a prospectus and such amendments thereto as
may have been required to the date hereof, 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
“Act”), has been filed with the Securities and Exchange
Commission (the “SEC” or the “Commission”)
and such registration statement, as amended, has become effective;
such registration statement, as amended, and the prospectus
relating to the sale of the Notes offered thereby constituting a
part thereof, as from time to time amended or supplemented
(including the base prospectus, any prospectus supplement or any
supplement to such prospectus supplement (the “Prospectus
Supplement”) (including static pool information deemed
excluded pursuant to Item 1105(d) of Regulation AB) filed with the
Commission pursuant to Rule 424(b) under the Act, the information
deemed to be a part thereof pursuant to Rule 430A(b) under the Act,
and the information incorporated by reference therein) are
respectively referred to herein as the “Registration
Statement,” and the “Prospectus,” respectively;
and the conditions to the use of a registration statement on Form
S-3 under the Act, as set forth in the General Instructions to Form
S-3, and the conditions of Rule 415 under the Act, have been
satisfied with respect to the Registration Statement;
(b)
On the effective date of the Registration
Statement, the Registration Statement and the Prospectus conformed
in all material respects to the requirements of the Act, the rules
and regulations of the SEC (the “Rules and
Regulations”) and the Trust Indenture Act of 1939, as
amended, and the rules and regulations thereunder (the “Trust
Indenture Act”), and, except with respect to information
omitted pursuant to Rule 430A of the Act, did not include any
untrue statement of a material fact or, in the case of the
Registration Statement, omit to state any material fact necessary
to make the statements therein not misleading and, in the case of
the Prospectus, omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, and on the date of this Agreement, at the “time
of sale” (within the meaning of Rule 159 under the Act, the
“Time of Sale”) for the first sale of the Notes by the
Underwriters, which will occur on December 11, 2006, and on the
Closing Date (i) the Registration Statement, (ii) the Disclosure
Package (as defined below) and (iii) the Prospectus will conform in
all material respects to the requirements of the Act, the Rules and
Regulations and the Trust Indenture Act, and none of such documents
included or will include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that the foregoing does not apply to statements in or
omissions from the Registration Statement, the Prospectus or the
Disclosure Package, as applicable, based upon written information
furnished to the Company by the Underwriters, specifically for use
therein. As used in this Agreement, the term
“Disclosure Package” means, collectively, the initial
free writing prospectus dated November 28, 2006 relating to the
Notes (the “Initial FWP”) (including the static pool
information deemed excluded pursuant to item 1105(d) of Regulation
AB), the base prospectus dated November 28, 2006 (the “Base
Prospectus”) and the term sheet dated December 8, 2006 (the
“Term Sheet”).
(c)
The Notes are “asset backed
securities” within the meaning of, and satisfy the
requirements for use of, Form S-3 under the Act, as set forth in
the General Instructions to Form S-3, and the conditions of Rule
415 of the Act have been satisfied with respect to the Registration
Statement.
(d)
The Commission has not issued and, to the
best knowledge of the Company, is not threatening to issue any
order preventing or suspending the use of the Registration
Statement.
(e)
As of the Closing Date, each consent,
approval, authorization or order of, or filing with, any court or
governmental agency or body which is required to be obtained or
made by the Company or its affiliates for the consummation of the
transactions contemplated by this Agreement shall have been
obtained, except as otherwise provided in the Basic
Documents.
(f)
The Indenture has been duly and validly
authorized by the Company and, upon its execution and delivery by
the Company and assuming due authorization, execution and delivery
by the Indenture Trustee, will be a valid and binding agreement of
the Company, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or
other similar laws affecting creditors’ rights generally and
the Indenture will conform in all material respects to the
description thereof in the Prospectus and the Disclosure Package.
The Indenture has been duly qualified under the Trust
Indenture Act with respect to the Notes.
(g)
The Notes have been duly authorized by
the Company and the Notes to be issued on the Closing Date, when
executed by the Company and authenticated by the Indenture Trustee
in accordance with the Indenture, and delivered to the Underwriters
against payment therefor in accordance with the terms hereof, will
have been validly issued and delivered, and will constitute valid
and binding obligations of the Company entitled to the benefits of
the Indenture and enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance or other similar laws
relating to or affecting creditors’ rights generally and
court decisions with respect thereto, and the Notes will conform in
all material respects to the description thereof in the Prospectus
and the Disclosure Package.
(h)
The Company is a statutory trust duly
organized, validly existing and in good standing under the laws of
the State of Delaware with full power and authority to own, lease
and operate its properties and to conduct its business as described
in the Prospectus and the Disclosure Package and as conducted on
the date hereof, and is duly registered and qualified to conduct
its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the
failure so to register or qualify does not have a material adverse
effect on the condition (financial or other), business, prospects,
properties, net worth or results of operations of the
Company.
(i)
Other than as contemplated by this
Agreement or as disclosed in the Prospectus and the Disclosure
Package, there is no broker, finder or other party that is entitled
to receive from the Company or any of its affiliates any brokerage
or finder’s fee or other fee or commission as a result of any
of the transactions contemplated by this Agreement.
(j)
There are no legal or governmental
proceedings pending or, to the knowledge of the Company, threatened
or contemplated against the Company, or to which the Company or any
of its properties is subject, that are not disclosed in the
Prospectus and the Disclosure Package and which, if adversely
decided, would individually or in the aggregate have a material
adverse effect on the condition (financial or other), business,
properties or results of operations of the Company, or would
materially and adversely affect the ability of the Company to
perform its obligations under this Agreement and the other Basic
Documents or otherwise materially affect the issuance of the Notes
or the consummation of the transactions contemplated hereby or by
the Basic Documents (“Material Adverse
Effect”).
(k)
Neither the offer, sale or delivery of
the Notes by the Company nor the execution, delivery or performance
of this Agreement or the other Basic Documents by the Company, nor
the consummation by the Company of the transactions contemplated
hereby or thereby (i) requires or will require any consent,
approval, authorization or other order of, or registration or
filing with, any court, regulatory body, administrative agency or
other governmental body, agency or official (except for compliance
with the securities or Blue Sky laws of various jurisdictions, the
qualification of the Indenture under the Trust Indenture Act and
such other consents, approvals or authorizations as shall have been
obtained prior to the Closing Date) or conflicts or will conflict
with or constitutes or will constitute a breach of, or a default
under, the organizational documents or bylaws of the Company or
(ii) conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, in any material
respect, any material agreement, indenture, lease or other
instrument to which the Company is a party or by which the Company
or any of its properties may be bound, or violates or will violate
in any material respect any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Company or
any of its properties, or will result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of
the Company pursuant to the terms of any agreement or instrument to
which it is a party or by which it may be bound or to which any of
its properties is subject other than as contemplated by the Basic
Documents.
(l)
The Company has all requisite power and
authority to execute, deliver and perform its obligations under
this Agreement and the other Basic Documents to which it is a
party; the execution and delivery of, and the performance by the
Company of its obligations under, this Agreement and the other
Basic Documents to which it is a party have been duly and validly
authorized by the Company and this Agreement and the other Basic
Documents have been duly executed and delivered by the Company and
constitute the valid and legally binding agreements of the Company,
enforceable against the Company in accordance with their respective
terms, except as the enforcement hereof and thereof may be limited
by bankruptcy, insolvency, moratorium, fraudulent conveyance or
other similar laws relating to or affecting creditors’ rights
generally and court decisions with respect thereto and subject to
the applicability of general principles of equity, and except as
rights to indemnity and contribution hereunder and thereunder may
be limited by Federal or state securities laws or principles of
public policy.
(m)
SLC’s sale and contribution of
Trust Student Loans to SLC Receivables and SLC Receivables’s
sale and contribution of Trust Student Loans to the Company as of
the applicable sale date described in the Sale Agreements will vest
in the Company all of the right, title and interest therein,
subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance.
(n)
The Company’s assignment of the
Trust Student Loans to the Indenture Trustee pursuant to the
Indenture will vest in the Indenture Trustee, for the benefit of
the Noteholders, a first priority perfected security interest
therein, subject to no prior lien, mortgage, security interest,
pledge, adverse claim, charge or other encumbrance.
(o)
The Company is not, nor as a result of
the issuance and sale of the Notes as contemplated hereunder will
it become, subject to registration as an “investment
company” under the Investment Company Act of 1940, as amended
(the “1940 Act”).
(p)
The representations and warranties made
by the Company in any Basic Document to which the Company is a
party and made in any Officer’s Certificate of the Company
will be true and correct at the time made and on and as of the
Closing Date.
(q)
The Depositor is not, and was not at the
Time of Sale, an “ineligible issuer” (within the
meaning of Rule 405 of the Act).
(r)
The Company filed with the Commission (i)
pursuant to Rule 424(b) under the Act, the Base Prospectus on
November 28, 2006 and (ii) pursuant to Rule 433(d) under the Act
(x) the Initial FWP on November 28, 2006 and (y) the Term Sheet on
December 8, 2006.
(s)
Other than the Initial FWP, the Term
Sheet and written communications constituting an electronic road
show within the meaning of Rule 433(h) under the Act, the Company
has not made any other offer relating to the Notes that would
constitute a “free writing prospectus” (as defined in
Rule 405 under the Act). The Company has complied with the
requirements of Rule 433 under the Act applicable to any
“issuer free writing prospectus” (as defined in Rule
433(h)(1) under the Act), including timely filing with the
Commission, retention where required and legending.
4.
Offering by
Underwriters.
(a)
Each Underwriter proposes to offer and/or
solicit offers for the Notes to be purchased by it for sale to the
public as set forth in the Disclosure Package and in the Prospectus
and each Underwriter agrees that all such offers, solicitations and
sales by it shall be made in compliance with all applicable laws
and regulations. Each Underwriter will enter into a Contract
of Sale (within the meaning of Rule 159 under the Act) with an
investor only after delivery of the Disclosure Package to such
investor. Each Underwriter shall keep sufficient records to
document its delivery of the Disclosure Package to each investor
prior to the related Contract of Sale.
(b)
Each Underwriter may prepare and provide
to investors certain Free Writing Prospectuses (as defined below),
subject to the following conditions:
(i)
Unless preceded or accompanied by a
prospectus satisfying the requirements of Section 10(a) of the Act,
an Underwriter shall not convey or deliver any Written
Communication (as such term is defined in Rule 405 of the Act) to
any person in connection with the initial offering of the Notes,
unless such Written Communication (i) is made in reliance on Rule
134 under the Act, (ii) constitutes a prospectus satisfying the
requirements of Rule 430B under the Act, (iii) is the Initial FWP
or the Term Sheet, or (iv) both (A) constitutes a Free Writing
Prospectus used in reliance on Rule 164 and (B) includes only
information that is within the definition of either (x) “ABS
Informational and Computational Materials” as defined in Item
1100 of Regulation AB or (y) Permitted Additional Materials (as
defined herein).
(ii)
Each Underwriter shall comply with all
applicable laws and regulations in connection with the use of Free
Writing Prospectuses, including but not limited to Rules 164 and
433 under the Act.
(iii)
For purposes hereof, “Free Writing
Prospectus” shall have the meaning given such term in Rules
405 and 433 under the Act. “Issuer Information”
shall mean information included in a Free Writing Prospectus that
both (i) is within the types of information specified in clauses
(1) to (5) of footnote 271 of Commission Release No. 33-8591
(Securities Offering Reform) and (ii) has been either prepared by,
or reviewed and approved by, SLC. Information contained in
the Disclosure Package shall be deemed to be approved by SLC for
purposes of the definition of Issuer Information and consented to
for purposes of the definition of Permitted Additional Materials.
“Underwriter Derived Information” shall refer to
information of the type described in clause (5) of such footnote
271 when prepared by an Underwriter. “Permitted
Additional Materials” shall mean information that is not ABS
Informational and Computational Materials and (A) that are referred
to in Section 4(b)(vi), (B) that constitute price, yield, weighted
average life, subscription or allocation information, or a trade
confirmation, or (C) otherwise with respect to which SLC has
provided written consent to the Underwriter to include in a Free
Writing Prospectus.
(iv)
All Free Writing Prospectuses provided to
investors, whether or not filed with the Commission, shall bear a
legend including substantially the following statement:
SLC Student Loan Receivables I, Inc. has
filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates.
Before you invest, you should read the prospectus in that
registration statement and the other documents SLC Student Loan
Receivables I, Inc. has filed with the SEC for more complete
information about SLC Student Loan Receivables I, Inc. and the
offering. You may get these documents for free by visiting
EDGAR on the SEC web site at www.sec.gov. Alternatively, SLC
Student Loan Receivables I, Inc., any underwriter or any dealer
participating in the offering will arrange to send you the
prospectus if you request it by calling 1-800-831-9146.
SLC or the Underwriters shall have the
right to require additional specific legends or notations to appear
on any Free Writing Prospectus, the right to require changes
regarding the use of terminology and the right to determine the
types of information appearing therein with the approval of, in the
case of SLC, the Underwriters and, in the case of any Underwriter,
SLC (which in either case shall not be unreasonably
withheld).
(v)
Each Underwriter shall deliver to SLC and
its counsel prior to the proposed date of first use thereof (i) any
Free Writing Prospectus prepared by that Underwriter that contains
any Issuer Information (other than a Free Writing Prospectus that
contains only preliminary terms of the Notes) and (ii) any Free
Writing Prospectus prepared by that Underwriter that contains only
a description of the final terms of the Notes after such terms have
been established for all classes of Notes.
Notwithstanding the foregoing, the Underwriter
shall not be required to deliver any Free Writing Prospectus to SLC
to the extent that it does not contain substantive changes from or
additions to any Free Writing Prospectus previously approved by
SLC.
(vi)
Subject to the following sentence, all
information provided by any Underwriter to Bloomberg or Intex or
similar entities to the extent constituting a Free Writing
Prospectus, shall be deemed for all purposes hereof to be a Free
Writing Prospectus. Each Underwriter may send the information
contained in Bloomberg screens and Intex, cdi files to potential
investors in the Notes. In connection therewith, the
Underwriter agrees that it shall not provide any information
constituting Issuer Information through the foregoing media unless
that information is or will be contained either in the Initial FWP
or in a Free Writing Prospectus delivered in compliance with
Section 4(b)(v), above.
(c)
Each Underwriter covenants with SLC that
after the Prospectus is available such Underwriter shall not
distribute any written information concerning the Notes to an
investor unless such information is preceded or accompanied by the
Prospectus or by notice to the investor that the Prospectus is
available for free by visiting EDGAR on the SEC website at
www.sec.gov. The use of written information in accordance
with the preceding sentence is not a Free Writing Prospectus and is
not otherwise restricted or governed in any way by this
Agreement.
(d)
(i) Each Underwriter shall provide to the
Depositor for filing with the Commission any Free Writing
Prospectus prepared by such Underwriter that has been distributed
by such Underwriter in a manner reasonably designed to lead to its
broad, unrestricted dissemination no later than the date of first
use; provided that, if that Free Writing Prospectus contains only
information of a type included within the definition of ABS
Informational and Computational Materials then such filing shall be
made within the later of (x) two business days after the
Underwriter first provides this information to investors and (y)
the date upon which the Depositor is required to file the
Prospectus Supplement with the Commission pursuant to Rule
424(b)(5) under the Act; provided further, that any Free Writing
Prospectus that does not contain substantive changes from or
additions to information included (including through incorporation
by reference) in a prospectus or Free Writing Prospectus previously
filed with the Commission shall not be required to be
filed.
(ii)
With the Depositor’s consent, each
Underwriter may deliver to the Depositor and the Company, not less
than one business day prior to the required date of filing thereof,
all information included in a Free Writing Prospectus prepared by
such Underwriter required to be filed with the Commission pursuant
to Section 4(d)(i) above. Upon timely receipt by the
Depositor and the Company of such information, such
Underwriter’s obligations pursuant to Section 4(d)(i) above
shall be deemed satisfied.
(e)
Each Underwriter further agrees that (i)
if the Prospectus is not delivered with or preceding delivery of
the confirmation in reliance on Rule 172, it will include in every
confirmation sent out the notice required by Rule 173 informing the
investor that the sale was made pursuant to the Registration
Statement and that the investor may request a copy of the
Prospectus from such Underwriter; (ii) if a paper copy of the
Prospectus is requested by a person who receives a confirmation,
such Underwriter shall deliver a paper copy of such Prospectus;
(iii) if an electronic copy of the Prospectus is delivered by an
Underwriter for any purpose such copy shall be the same electronic
file containing the prospectus in the identical form transmitted
electronically to such Underwriter by or on behalf of SLC
specifically for use by such Underwriter pursuant to this Section
4(e). Each Underwriter further agrees that (i) if it delivers
to an investor the Prospectus in .pdf format, upon such
Underwriter’s receipt of a request from the investor within
the period for which delivery of the Prospectus is required, such
Underwriter will promptly deliver or cause to be delivered to the
investor, without charge, a paper copy of the Prospectus and (ii)
it will provide to SLC any Free Writing Prospectuses, or portions
thereof, prepared by it which SLC is required to file with the
Commission in electronic format and will use reasonable efforts to
provide to SLC such Free Writing Prospectuses, or portions thereof,
in either Microsoft Word® or Microsoft Excel® format and
not in .pdf format, except to the extent that SLC, in its sole
discretion, waives such requirements.
(f)
Each Underwriter shall maintain written
or electronic records of the time and manner that any disclosure
materials (including the Prospectus, Prospectus Supplement, Initial
FWP, Term Sheet or any Free Writing Prospectus) were conveyed to
investors at or prior to the Time of Sale to the extent required by
the Act. In addition, each of the Underwriters and SLC shall,
for a period of at least (3) three years after the date hereof,
maintain written and/or electronic records of any Free Writing
Prospectus used to the extent not filed with the
Commission.
5.
Agreements of the
Company .
The Company agrees with each of the
Underwriters as follows:
(a)
The Company will prepare a supplement to
the Prospectus setting forth the amount of the Notes covered
thereby and the terms thereof not otherwise specified in the
Prospectus, the price at which the Notes are to be purchased by the
Underwriters, either the initial public offering price or the
method by which the price at which the Notes are to be sold will be
determined, the selling concessions and reallowances, if any, and
such other information as the Underwriters and the Company deem
appropriate in connection with the offering of the Notes , and the
Company will timely file such supplement to the prospectus with the
SEC pursuant to, and within the time frame provided by, Rule 424(b)
under the Act, but the Company will not file any amendments to the
Registration Statement as in effect with respect to the Notes
or any amendments or supplements to the Prospectus, or any
Free Writing Prospectus to the extent required by Rule 433(d) under
the Act, unless it shall first have delivered copies of such
amendments, supplements or Free Writing Prospectus to the
Underwriters, with reasonable opportunity to comment on such
proposed amendment or supplement, or if the Underwriters shall have
reasonably objected thereto promptly after receipt thereof; the
Company will immediately advise the Underwriters or the
Underwriters’ counsel (i) when notice is received from the
SEC that any post-effective amendment to the Registration Statement
has become or will become effective and (ii) of any order or
communication suspending or preventing, or threatening to suspend
or prevent, the offer and sale of the Notes or of any proceedings
or examinations that may lead to such an order or communication,
whether by or of the SEC or any authority administering any state
securities or Blue Sky law, as soon as the Company is advised
thereof, and will use its best efforts to prevent the issuance of
any such order or communication and to obtain as soon as possible
its lifting, if issued. The Company will comply with the
requirements applicable to any “issuer free writing
prospectus” (as defined in Rule 433(h)(1) under the Act),
including timely filing with the Commission, retention where
required and legending. The Company will timely file with the
Commission any Free
