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Exhibit 1.1
SLM Funding
LLC
Student Loan-Backed
Notes
Underwriting
Agreement
April 25,
2008
Banc of America Securities
LLC
214 North Tryon Street
NC1-027-21-04
Charlotte, North Carolina
28255
Deutsche Bank Securities
Inc.
60 Wall Street
New York, New York
10005
and
J.P. Morgan Securities
Inc.
270 Park Avenue, 10
th
floor
New York, New York
10017
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 to
the Company, and the Company proposes to 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 Delaware Trustee specified in the related Pricing
Agreement (the “Delaware Trustee”) and 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 (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 Delaware Trustee, 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, (i) the Company will acquire the
related Student Loans from SLM ECFC, Bluemont Funding LLC
(“Bluemont Funding”), Town Center Funding LLC
(“Town Center Funding”) and/or Town Hall Funding LLC
(“Town Hall 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 dated as of the Time of Delivery,
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 Underwriters 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, Bluemont
Funding, Town Center Funding and Town Hall 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. 333-141930), 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
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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
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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, at the Time of Sale (as
set forth in the Initial FWP Side Letter defined below) and at the
Time of Delivery 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
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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. Bluemont 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. Town Center 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. Town
Hall 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
6
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 and by SLM
Corporation, as applicable, 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, SLM ECFC or SLM Corporation is a party or by which the
Company, SLM ECFC or SLM Corporation is bound or to which any of
the property or assets of the Company, SLM ECFC or SLM Corporation
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
7
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;
(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,
Bluemont Funding’s representations and warranties in the
Purchase Agreement to which it is a party will be true and correct
in all material respects, Town
8
Center Funding’s
representations and warranties in the Purchase Agreement to which
it is a party will be true and correct in all material respects,
Town Hall 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
9
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 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
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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 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
11
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 any
Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Indenture, any Trust Agreement, any Delayed Delivery
Contracts, the Initial FWP Side Letter, any Blue Sky and Legal
Investment Memoranda, closing documents (including any compilations
thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Designated Securities;
(iii) all expenses in connection with the qualification of the
Designated Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees
and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and
Legal Investment Surveys; (iv) any fees charged by securities
rating services for rating the Designated Securities; (v) the
cost of preparing the Designated Securities; (vi) the fees and
expenses of the Eligible Lender Trustee and the Indenture Trustee
and any agent of the Eligible Lender Trustee or the Indenture
Trustee and the fees and disbursements of counsel for the Eligible
Lender Trustee and the Indenture Trustee in connection with any
Indenture and Trust Agreement and the Designated Securities;
(vii) the fees payable to the Luxembourg Stock Exchange in
connection with listing Designated Securities on the Luxembourg
Stock Exchange; and (viii) all other costs and expenses
incident to the performance of their obligations hereunder and
under any Delayed Delivery Contracts that are not otherwise
specifically provided for in this Section. It is understood,
however, that, except as provided
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