Student Loan-Backed
Notes
Credit
Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010-3629
Deutsche
Bank Securities Inc.
60 Wall Street, 19th Floor
New York, New York 10005
RBS
Securities Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
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, the
Eligible Lender Trustee 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. 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 Trust 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.
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Capitalized terms used but not defined herein or
in any Pricing Agreement shall have the meanings ascribed thereto
in the related Indenture or the Pre-Pricing Disclosure Package 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 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
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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, including the
preliminary base prospectus (the “Preliminary Base
Prospectus”) as supplemented by the preliminary prospectus
supplement for the Designated Securities, including any supplements
or amendments thereto (the “Preliminary Prospectus
Supplement” and, together with the Preliminary Base
Prospectus, the “Pre-Pricing Disclosure Package”); 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; 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 Pre-Pricing Disclosure Package), 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 the Prospectus or the Pre-Pricing
Disclosure Package 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 Prospectus or
Pre-Pricing Disclosure Package, as the case may be; any reference
to any amendment or supplement to the Prospectus or the Pre-Pricing
Disclosure Package shall be deemed to refer to and include any
documents filed after the date of such Prospectus or Pre-Pricing
Disclosure Package, as the case may be, under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”),
and incorporated by reference in such Prospectus or Pre-Pricing
Disclosure Package, 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 or the Pre-Pricing Disclosure Package as amended or
supplemented shall be deemed to refer to the Prospectus or the
Pre-Pricing Disclosure Package 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);
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(b) The documents incorporated by reference
in the Prospectus and the Pre-Pricing Disclosure Package, 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 and the Pre-Pricing Disclosure Package or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Act, the Exchange Act and the Trust Indenture Act, as applicable,
and the rules and regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided ,
however , that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus and the Pre-Pricing Disclosure
Package as amended or supplemented relating to such Designated
Securities;
(c) The Registration Statement, the
Prospectus and the Pre-Pricing Disclosure Package conform, and any
further amendments or supplements to the Registration Statement,
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 Pre-Pricing Disclosure Package Side Letter
defined below) and at the Time of Delivery of the Designated
Securities, as to the Pre-Pricing Disclosure Package, 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;
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(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 the Pre-Pricing
Disclosure Package 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 the Pre-Pricing Disclosure Package
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 the Pre-Pricing Disclosure Package 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 and the Pre-Pricing Disclosure Package 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 the Pre-Pricing Disclosure Package 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 the Pre-Pricing Disclosure Package 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 the Pre-Pricing Disclosure Package 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;
6
(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
Pre-Pricing Disclosure Package (the “Pre-Pricing Disclosure
Package Side Letter”) has been duly authorized, executed and
delivered by the Company, SLM ECFC and SLM Corporation to each of
the Underwriters. The Securities have been duly authorized, and,
when Designated Securities are issued and delivered pursuant to
this Agreement and the Pricing Agreement with respect to such
Designated Securities, and, in the case of any Contract Securities,
pursuant to Delayed Delivery Contracts with respect to such
Contract Securities, such Designated Securities and Contract
Securities will have been duly executed, authenticated, issued and
delivered. The Designated Securities will constitute valid and
legally binding obligations of the related Trust entitled to the
benefits provided by the Indenture, which will be substantially in
the form filed as an exhibit to the Registration Statement. The
Indenture has been duly authorized and duly qualified under the
Trust Indenture Act. The related Certificates are intended to
represent undivided ownership interests in the Trust created by the
Trust Agreement, which will be substantially in the form filed as
an exhibit to the Registration Statement, and will be entitled to
the benefits provided by the Trust Agreement. At the Time of
Delivery (as defined in Section 4 hereof) for the Designated
Securities, the Indenture and the Trust Agreement will each
constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles. The Indenture and Trust Agreement
conform, and the Designated Securities and the related Certificates
will conform, to the descriptions thereof contained in the
Prospectus as amended or supplemented and the Pre-Pricing
Disclosure Package with respect to the Designated
Securities;
(h) The issue and sale of the Securities
and the compliance by the Company 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
Pre-Pricing Disclosure Package 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;
7
(i) The statements set forth in the
Prospectus and the Pre-Pricing Disclosure Package under the
captions “Description of the Notes” and
“Additional Information Regarding the Notes” insofar as
they purport to constitute a summary of the terms of the Notes
(other than, in the case of the Pre-Pricing Disclosure Package,
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, the Pre-Pricing Disclosure Package 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 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;
8
(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 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 will conform to the
description thereof in the Prospectus, as amended or
supplemented.
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, as amended or supplemented, 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.
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The principal amount of Contract Securities to
be deducted from the principal amount of Designated Securities to
be purchased by each Underwriter as set forth in Schedule I to
the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the principal amount of Contract Securities
which the Company has been advised by the Representatives have been
attributed to such Underwriter, provided that, if the Company has
not been so advised, the amount of Contract Securities to be so
deducted shall be, in each case, that proportion of Contract
Securities which the principal amount of Designated Securities to
be purchased by such Underwriter under such Pricing Agreement bears
to the total principal amount of the Designated Securities (rounded
as the Representatives may determine). The total principal amount
of Underwriters’ Securities to be purchased by all the
Underwriters pursuant to such Pricing Agreement shall be the total
principal amount of Designated Securities set forth in
Schedule I to such Pricing Agreement less the principal amount
of the Contract Securities. The Company will deliver to the
Representatives not later than 3:30 p.m., New York City time, on
the third business day preceding the Time of Delivery specified in
the applicable Pricing Agreement (or such other time and date as
the Representatives and the Company may agree upon in writing), a
written notice setting forth the principal amount of Contract
Securities.
4. Underwriters’ Securities to be
purchased by each Underwriter pursuant to the Pricing Agreement
relating thereto, in the form specified in such Pricing Agreement,
and in such authorized denominations and registered in such names
as the Representatives may request upon at least forty-eight
hours’ prior notice to the Company, shall be delivered by or
on behalf of the Company to the Representatives for the account of
such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor by wire transfer or by
certified or official bank check or checks, payable to the order of
the Company in the funds specified in such Pricing Agreement, all
in the manner and at the place and time and date specified in such
Pricing Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such
time and date being herein called the “Time of
Delivery” for such Securities.
Concurrently with the delivery of and payment
for the Underwriters’ Securities, the Company will deliver to
the Representatives for the accounts of the Underwriters a check
payable to the order of the party designated in the Pricing
Agreement relating to such Underwriters’ Securities in the
amount of any compensation payable by the Company to the
Underwriters in respect of any Delayed Delivery Contracts as
provided in Section 3 hereof and the Pricing Agreement
relating to such Securities.
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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;
(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 and Pre-Pricing Disclosure Package as amended or
supplemented, in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a
Prospectus or Pre-Pricing Disclosure Package 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 or Pre-Pricing Disclosure Package 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 or Pre-Pricing Disclosure
Package is delivered, not misleading, or, if for any other reason
it
11
shall be
necessary during such same period to amend or supplement the
Prospectus or the Pre-Pricing Disclosure Package or to file under
the Exchange Act any document incorporated by reference in the
Prospectus or the Pre-Pricing Disclosure Package 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 the Pre-Pricing Disclosure Package or a
supplement to the Prospectus or the Pre-Pricing Disclosure Package
which will correct such statement or omission or effect such
compliance;
(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 the Pre-Pricing Disclosure Package.
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 and the Prospectus and
amendments and supplements thereto, and the Pre-Pricing Disclosure
Package and any ame
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