SLM Funding LLC
Student Loan-Backed
Notes
Underwriting
Agreement
___________,
200__
[Underwriter Name and
Address]
as Representatives of the
several
Underwriters named in Schedule I
hereto
Ladies and Gentlemen:
From time to time SLM Education Credit
Finance Corporation (“SLM ECFC”), a Delaware
corporation and SLM Funding LLC (the “Company”), a
Delaware limited liability company and a wholly-owned subsidiary of
SLM ECFC, propose to enter into one or more Pricing Agreements
(each a “Pricing Agreement”) in the form of Annex I
hereto, with such additions and deletions as the parties thereto
may determine. Subject to the terms and conditions stated
herein and therein, the Company proposes to cause the Trust
specified in the applicable Pricing Agreement to issue and sell to
the firms named in Schedule I to the applicable Pricing Agreement
(each firm constituting the “Underwriter” with respect
to such Pricing Agreement and the securities specified therein)
certain of such Trust’s Student Loan-Backed Notes (the
“Notes”) specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the
“Designated Securities”), less the principal amount of
Designated Securities covered by Delayed Delivery Contracts, if
any, as provided in Section 3 hereof and as may be specified in
Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, any Designated Securities to be covered by Delayed
Delivery Contracts are herein sometimes referred to as
“Contract Securities” and the Designated Securities to
be purchased by the Underwriters (after giving effect to the
deduction, if any, for Contract Securities) are herein sometimes
referred to as “Underwriters’
Securities”).
The Securities may be sold from time to
time in one or more Series. Each Series of Securities, which
will include one or more classes of Notes and may include one or
more classes of Student Loan-Backed Certificates (the
“Certificates,” and, together with the Notes, the
“Securities”) will be issued by a Trust to be formed
with respect to such Series (each, a “Trust”).
Each Trust will be formed pursuant to a trust agreement (an
“Initial Trust Agreement”) to be entered into between
the Company, the Eligible Lender Trustee specified in the related
Pricing Agreement (the “Eligible Lender Trustee”) on or
before the date of each Pricing Agreement and amended and restated
at the Time of Delivery for that Series pursuant to an amended and
restated trust agreement (an “Amended and Restated Trust
Agreement,” together with the Initial Trust Agreement, a
“Trust Agreement”) to be entered into between the
Company, the Eligible Lender Trustee and the Indenture Trustee
(defined below). The Notes of each Series will be issued and
secured pursuant to an indenture (an “Indenture”)
between the Trust and the Indenture Trustee specified in the
related Pricing Agreement (the “Indenture Trustee”).
The Certificates of a Series will be issued pursuant to the
related Trust Agreement and will represent fractional undivided
interests in the Trust created thereby. The property of each
Trust will include, among other things, educational student loans
to students and/or parents of dependent students made under the
Federal Family Education Loan Program (“Student
Loans”).
At the Time of Delivery for the
Designated Securities (as defined in Section 4 hereof), (i) the
Company will acquire the related Student Loans from SLM ECFC and/or
VG Funding, LLC (“VG Funding”) under separate Purchase
Agreements, (ii) the Company will sell the related Student Loans to
the Trust pursuant to a Sale Agreement, between the Company and the
Trust with the related Eligible Lender Trustee holding legal title
thereto and (iii) the Company will make a deposit into the
Supplemental Purchase Account, which may be used for the purchase
of Additional Trust Student Loans during the Supplemental Purchase
Period. With respect to each Series, Sallie Mae, 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, Sallie Mae, Inc., as
administrator (the “Administrator”), will enter into an
administration agreement (an “Administration
Agreement”) with the Trust, the Company, the Eligible Lender
Trustee, the Servicer and the Indenture Trustee.
The terms and conditions of any
particular issuance of Designated Securities shall be as specified
in the Pricing Agreement relating thereto and in or pursuant to the
related Indenture.
Capitalized terms used but not defined
herein or in any Pricing Agreement shall have the meanings ascribed
thereto in the related Indenture or the Initial FWP Side Letter (as
defined below).
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 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) and (o) of this Section 2
with respect to SLM ECFC, VG Funding, the Servicer or the
Administrator constitute representations, warranties and agreements
of SLM ECFC only and not of the Company):
(a)
A registration statement on Form S-3
(File No. 333-103545), including a form of prospectus, in respect
of the Securities has been filed with the Securities and Exchange
Commission (the “Commission”); such registration
statement and any post-effective amendment thereto, each in the
form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to such registration statement, but
including all documents incorporated by reference in the prospectus
contained therein, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in
such form; no other document with respect to such registration
statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules
and regulations of the Commission under the Securities Act of 1933,
as amended (the “Act”), each in the form heretofore
delivered to the Representatives; and the initial Free Writing
Prospectus for the Designated Securities, including any supplements
or amendments thereto (the “Initial FWP”) and the final
pricing term sheet (the “Term Sheet” and, together with
the Initial FWP, the “Pre-Pricing Disclosure Package”),
each in the form delivered to the Underwriters); and no stop order
suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated
or, to the best of SLM ECFC’s or the Company’s
knowledge, threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the
Commission pursuant to Rule 424(b) under the Act, is hereinafter
called a “Preliminary Prospectus”; the various parts of
such registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in
the registration statement at the time such part of the
registration statement became effective but excluding Form T-1,
each as amended at the time such part of the registration statement
became effective, are hereinafter collectively called the
“Registration Statement”; the prospectus relating to
the Securities (other than the Initial FWP and Term Sheet), 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 and the Pre-Pricing
Disclosure Package will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act, as applicable,
and the rules and regulations of the Commission thereunder and do
not and will not, (i) as of the applicable effective date, as to
the Registration Statement and any amendment thereto, (ii) as of
the applicable filing date, as to the Prospectus and any amendment
or supplement thereto, and (iii) as of the date of the pricing of
the Designated Securities, as to the Pre-Pricing Disclosure Package
(taken as a whole), 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 or
the Pre-Pricing Disclosure Package, as applicable, relating to such
Designated Securities (it being understood that the Pre-Pricing
Disclosure Package omits certain pricing information relating to
the 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 or
Quarterly Report on Form 10-Q or any Form 8-K filed with the
Commission, as applicable, unless disclosed in writing to the
Underwriters, on or prior to the date of this Agreement;
(e)
The Company has been duly formed and is
validly existing as a limited liability company in good standing
under the laws of the State of Delaware, with power and authority
(corporate or otherwise) to own its properties and conduct its
business as described in the Prospectus and to consummate the
transactions contemplated therein and herein, and is a wholly-owned
subsidiary of SLM ECFC as of the date hereof. The Servicer
has been duly formed and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with power
and authority (corporate or otherwise) to own its properties
and conduct its business as described in the Prospectus and to
consummate the transactions contemplated therein. The
Administrator has been duly formed and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate or otherwise) to own
its properties and conduct its business as described in the
Prospectus and to consummate the transactions contemplated therein.
SLM ECFC has been duly formed and is validly existing under the
laws of the State of Delaware, with power and authority (corporate
or otherwise) to own its properties and conduct its business as
described in the Prospectus Supplement and to consummate the
transactions contemplated therein and herein. VG Funding has
been duly formed and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware,
with power and authority (corporate or otherwise) to own its
properties and conduct its business as described in the Prospectus
and to consummate the transactions contemplated therein and
herein.
(f)
All of the equity interests of the
Company have been duly and validly authorized and are owned
beneficially and of record by SLM ECFC as of the date hereof;
(g)
This Agreement has been, and each Pricing
Agreement with respect to the Designated Securities upon its
execution and delivery by the Company and SLM ECFC will have been,
duly authorized, executed and delivered by the Company and SLM
ECFC. The side letter authorizing the delivery of the Initial
FWP and the Term Sheet (the “Initial FWP Side Letter”)
has been duly authorized, executed and delivered by the Company,
SLM ECFC and SLM Corporation to each of the Underwriters. 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 and the Pre-Pricing Disclosure Package 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, any Pricing Agreement and the
Initial FWP Side Letter, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
Company or SLM ECFC is a party or by which the Company or SLM ECFC
is bound or to which any of the property or assets of the Company
or SLM ECFC is subject, nor will such action result in any
violation of the provisions of the Company’s Certificate of
Formation or Limited Liability Company Operating Agreement, SLM
ECFC’s Certificate of Incorporation or By-laws, or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
SLM ECFC or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company or
SLM ECFC of the transactions contemplated by this Agreement or any
Pricing Agreement or the Indenture or any Delayed Delivery
Contract, except such as have been, or will have been prior to the
Time of Delivery, obtained under the Act and the Trust Indenture
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Designated Securities by the Underwriter;
(i)
The statements set forth in the
Prospectus under the captions “Description of the
Notes” and “Description of the Certificates,” the
statements set forth in the Initial FWP under the caption
“Description of the Notes” read together with the
statements in the Term Sheet under the caption “The
Notes” insofar as they purport to constitute a summary of the
terms of the Notes and the Certificates (other than in the case of
the Initial FWP and Term Sheet, certain pricing information), 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 Current Report on Form 8-K,
in each case, on or prior to the date of this Agreement, filed with
the Commission, as applicable, there are no legal or governmental
proceedings pending to which the Company or SLM ECFC or any of its
subsidiaries is a party or of which any property of the SLM ECFC or
any of its subsidiaries is the subject which, if determined
adversely to the Company or SLM ECFC or any of its subsidiaries
would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position,
shareholders’ equity or results of operations of SLM ECFC and
any of its subsidiaries, taken as a whole, or the Company, or on
the consummation of the transactions contemplated hereby; and, to
the best of the Company’s and SLM ECFC’s knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(l)
The Company is not and, after giving
effect to the offering and sale of the Securities, will not be an
“investment company” or an entity
“controlled” by an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as
amended and the Company, acting in its capacity as the Depositor of
the Trust, is not an “ineligible issuer” within the
meaning of Rule 405 under the Act as of the date hereof or as of
the time set forth in Rule 164(h)(2) of the Act;
(m)
Neither the Company, SLM ECFC nor any of
their affiliates does business with the government of Cuba or with
any person or affiliate located in Cuba within the meaning of
Section 517.075, Florida Statutes;
(n)
PricewaterhouseCoopers LLP are
independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder;
(o)
At the Time of Delivery of the Designated
Securities, SLM ECFC’s representations and warranties in the
Purchase Agreement, the Administrator’s representations and
warranties in the Administration Agreement, the Company’s
representations and warranties in the Sale Agreement and Trust
Agreement, VG Funding’s representations and warranties in the
Purchase Agreement to which it is a party will be true and correct
in all material respects and the Servicer’s representations
and warranties in the Servicing Agreement will be true and correct
in all material respects; and
(p)
In the event any of the Securities are
purchased pursuant to Delayed Delivery Contracts, each of such
Delayed Delivery Contracts has been duly authorized by the Company
and SLM ECFC and, when executed and delivered by the Company and
the purchaser named therein, will constitute a valid and legally
binding agreement of the Company enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
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
and the Pre-Pricing Disclosure Package.
The Company may specify in Schedule II to
the Pricing Agreement applicable to any Designated Securities that
the Underwriters are authorized to solicit offers to purchase
Designated Securities from the Company pursuant to delayed delivery
contracts (herein called “Delayed Delivery Contracts”),
substantially in the form of Annex III attached hereto but with
such changes therein as the Representatives and the Company may
authorize or approve. If so specified, the Underwriters will
endeavor to make such arrangements, and as compensation therefor
the Company will pay to the Representatives, for the accounts of
the Underwriters, at the Time of Delivery, such commission, if any,
as may be set forth in such Pricing Agreement. Delayed
Delivery Contracts, if any, are to be with investors of the types
described in the Prospectus and subject to other conditions therein
set forth. The Underwriters will not have any responsibility
with respect to the validity or performance of any Delayed Delivery
Contracts.
The principal amount of Contract
Securities to be deducted from the principal amount of Designated
Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, the principal amount of Contract
Securities which the Company has been advised by the
Representatives have been attributed to such Underwriter, provided
that, if the Company has not been so advised, the amount of
Contract Securities to be so deducted shall be, in each case, that
proportion of Contract Securities which the principal amount of
Designated Securities to be purchased by such Underwriter under
such Pricing Agreement bears to the total principal amount of the
Designated Securities (rounded as the Representatives may
determine). The total principal amount of Underwriters’
Securities to be purchased by all the Underwriters pursuant to such
Pricing Agreement shall be the total principal amount of Designated
Securities set forth in Schedule I to such Pricing Agreement less
the principal amount of the Contract Securities. The Company
will deliver to the Representatives not later than 3:30 p.m., New
York City time, on the third business day preceding the Time of
Delivery specified in the applicable Pricing Agreement (or such
other time and date as the Representatives and the Company may
agree upon in writing), a written notice setting forth the
principal amount of Contract Securities.
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 or to the Pre-Pricing
Disclosure Package after the date of the Pricing Agreement relating
to such Designated Securities and prior to the Time of Delivery for
such Designated Securities, in the event such amendment or
supplement is 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 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 prepare and furnish to the
Underwriters copies of the Pre-Pricing Disclosure Package, and to
prepare and furnish without charge to each Underwriter and to any
dealer in the Designated Securities as many copies as the
Underwriters may from time to time reasonably request of any
amendment or supplement to the Initial FWP and/or Term Sheet, which
corrects an untrue statement or omission of material fact in the
Initial FWP and/or Term Sheet;
(e)
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
(f)
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 and Term
Sheet.
6.
(a)
The Company and SLM ECFC covenant and
agree with the several Underwriters that the Company or SLM ECFC
will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company’s and SLM
ECFC’s counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses
in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto, and the
Pre-Pricing Disclosure Package and any amendments and supplements
thereto relating to the Designated Securities and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or producing
