Exhibit 1.1
SLM Funding LLC
Student Loan-Backed
Notes
Underwriting
Agreement
September 7,
2006
Credit Suisse Securities (USA)
LLC
Eleven Madison Avenue
New York, New York 10010-3629
Lehman Brothers
Inc.
745 Seventh Avenue, 7th Floor
New York, New York 10019
and
Wachovia Capital Markets,
LLC
301 South College Street, TW-10
Charlotte, North Carolina 28288
as Representatives of the
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 Add-On Consolidation Loan Account, which
may be used for the purchase of Add-On Consolidation Loans during
the Add-On Consolidation Loan Period, and (iv) the Company
will make a deposit into the Supplemental Purchase Account, which
may be used for the purchase of Additional Trust Student Loans
during the Supplemental Purchase Period. With respect to each
Series, 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).
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1. Particular sales of Designated
Securities may be made from time to time to the Underwriter of such
Securities, for whom the firms designated as representatives of the
Underwriter of such Securities in the Pricing Agreement relating
thereto will act as representatives (the
“Representatives”). The term
“Representatives” also refers to a single firm acting
as sole representative of the Underwriters and to an Underwriter or
Underwriters who act on its or their own behalf without any firm
being designated as its or their representatives. This Underwriting
Agreement shall not be construed as an obligation of the Company to
sell any of the Securities or as an obligation of any of the
Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation
of any of the Underwriters to purchase any of the Securities shall
be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement
shall specify the aggregate principal amount of such Designated
Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriter of such
Designated Securities, the names of the Underwriter of such
Designated Securities, the names of the Representatives of such
Underwriter and the principal amount of such Designated Securities
to be purchased by each Underwriter and whether any of such
Designated Securities shall be covered by Delayed Delivery
Contracts (as defined in Section 3 hereof) and shall set forth
the date, time and manner of delivery of such Designated Securities
and payment therefor. The Pricing Agreement shall also specify (to
the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such
Designated Securities. A Pricing Agreement 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. 333-132315), 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
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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,
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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
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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 issued membership
interests of the Company have been duly and validly authorized and
issued 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
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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
Underwriters;
(i) The statements set forth in the
Prospectus under the captions “Description of the
Notes” and “Additional Information Regarding the
Notes,” 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 (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;
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(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 to which it is a party, the
Administrator’s representations and warranties in the
Administration Agreement, the Company’s representations and
warranties in the related 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.
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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.
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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 other 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;
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(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.
11
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 prepa
