Student Loan-Backed
Notes
Deutsche
Bank Securities Inc.
60 Wall Street
New York, New York 10005
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
250 Vesey Street
New York, NY 10080
Morgan
Stanley & Co. Incorporated
1585 Broadway, 4 th Floor
New York, New York 10036
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 and the Trustee specified in the related Pricing
Agreement (the “Trustee”) on or before the date of each
Pricing Agreement and amended and restated at the Time of Delivery
(as defined in Section 4 hereof) 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 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 (“Student Loans”).
At the Time of
Delivery (as defined in Section 4 hereof) for the Designated
Securities, (i) the Company will acquire the related Student Loans
from SLM ECFC and/or VG Funding, LLC (“VG Funding”)
pursuant to Seller Sale Agreements and (ii) the Company will
sell the related Student Loans to the Trust pursuant to a Depositor
Sale Agreement. 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 Trustee and the Indenture
Trustee with respect to the related Student Loans. With respect to
each Series, Sallie Mae, Inc., as administrator (in such capacity,
the “Administrator”), will enter into an administration
agreement (the “Administration Agreement”) with the
Company, the Servicer, the Indenture Trustee and the Trust, dated
as of September 1, 2006, with respect to the Student Loans to
be held by the Trust. The Trust will also enter into four basis
swap agreements (the “ Swap Agreements ”) with
Merrill Lynch Capital Services, Inc., as swap counterparty, the
Indenture Trustee and the Trust, dated as of June 23, 2006,
with respect to the Student Loans to be held by the
Trust.
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
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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 Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal
amount of such Designated Securities to be purchased by each
Underwriter and whether any of such Designated Securities shall be
covered by Delayed Delivery Contracts (as defined in Section 3
hereof) and shall set forth the date, time and manner of delivery
of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the
Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing
Agreement shall be in the form of an executed writing (which may be
in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted.
The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The
Company and SLM ECFC represent and warrant to, and agree with, each
of the Underwriters as follows (it being agreed and understood that
the statements set forth in clauses (d), (e), (g), (h), (j), (k),
(m), (o) and (p) of this Section 2 with respect to
SLM ECFC, 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 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
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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
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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,
(iii) as of the date thereof, as to any materials or
information provided to potential investors by, or with the
approval of, the Company, including any road show presentations
made to investors (whether in person or electronically) (a
“Company-Approved Road Show”), which materials or
information constitute an issuer free-writing prospectus within the
meaning of Rule 405 under the Act (“Marketing
Materials”) or (iv) 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 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-
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owned
subsidiary of SLM ECFC. SLM ECFC has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Delaware, with power and authority (corporate and
otherwise) to own its properties and conduct its business as
described in the Prospectus and to consummate the transactions
contemplated therein and herein, and is a wholly-owned subsidiary
of SLM Corporation as of the date hereof. 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 to own its properties and conduct its business as
described in the Prospectus and to consummate the transactions
contemplated therein and herein. The Servicer has been duly formed
and is validly existing as a corporation in good standing under the
laws of the state of Delaware, with power and authority (corporate
and otherwise) to own its properties and conduct its business as
described in the Prospectus and to consummate the transactions
contemplated therein and herein, and is a wholly-owned subsidiary
of SLM Corporation. The Administrator has been duly formed and is
validly existing as a corporation in good standing under the laws
of the State of Delaware, with power and authority (corporate and
otherwise) to own its properties and conduct its business as
described in the Prospectus and to consummate the transactions
contemplated therein and herein, and is a wholly-owned subsidiary
of SLM Corporation;
(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,
6
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 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 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 related Seller Sale Agreement
to which it is a party and the Administration Agreement, VG
Funding’s representations and warranties in the related
Seller Sale 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 Depositor Sale Agreement and Trust
Agreement and the Servicer’s representations and warranties
in the Servicing Agreement will be true and correct in all material
respects; and
(p) In the event
any of the Securities are purchased pursuant to Delayed Delivery
Contracts, each of such Delayed Delivery Contracts has been duly
authorized by the Company and SLM ECFC and, when executed and
delivered by the Company and the purchaser named therein, will
constitute a valid and legally binding agreement of the Company
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and any
Delayed Delivery Contracts conform to the description thereof in
the Prospectus.
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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
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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 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 conn
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