EXHIBIT 1.1
SLM Funding LLC
Student Loan-Backed Notes
Underwriting Agreement
May 28, 2003
Banc One Capital Markets Inc.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the several
Underwriters named on Schedule I hereto
Ladies and Gentlemen:
From time to time, the Student Loan Marketing Association ("▇▇▇▇▇▇
Mae"), a corporation formed under the laws of the United States, and SLM Funding
LLC, a Delaware limited liability company and a wholly-owned subsidiary of
▇▇▇▇▇▇ ▇▇▇ (the "Company"), 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 (a "Trust Agreement") to be entered into between the Company and the
Eligible Lender Trustee specified in the related Pricing Agreement (the
"Eligible Lender Trustee"). 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").
With respect to each Trust, (i) the Company will acquire the related
Student Loans from ▇▇▇▇▇▇ Mae pursuant to a Purchase Agreement and (ii) the
Company will sell the related Student Loans to such Trust pursuant to a Sale
Agreement, with the related Eligible Lender Trustee holding legal title thereto.
With respect to each Series, ▇▇▇▇▇▇ ▇▇▇ Servicing L.P., as servicer (the
"Servicer") will enter into a servicing agreement (a "Servicing Agreement") with
the Trust, the Administrator, the Eligible Lender Trustee and the Indenture
Trustee with respect to the related Student Loans. ▇▇▇▇▇▇ Mae, as administrator
(in such capacity, the "Administrator"), has entered into a Master
Administration Agreement with the Company dated as of May 1, 1997 and, as
contemplated by the terms of the Master Administration Agreement, will enter
into an Administration Agreement Supplement among the Company, the Trust, the
Eligible Lender Trustee, the Servicer and the Indenture Trustee with respect to
the Student Loans to be held by the Trust (the Master Administration Agreement,
as supplemented by the Administration Agreement Supplement, the "Administration
Agreement").
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.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriter of such Securities, for whom the firms designated as
representatives of the Underwriter of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated
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Securities, the purchase price to the Underwriter of such Designated Securities,
the names of the Underwriter of such Designated Securities, the names of the
Representatives of such Underwriter and the principal amount of such Designated
Securities to be purchased by each Underwriter and whether any of such
Designated Securities shall be covered by Delayed Delivery Contracts (as defined
in Section 3 hereof) and shall set forth the date, time and manner of delivery
of such Designated Securities and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company and ▇▇▇▇▇▇ ▇▇▇ 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), (n) and
(o) of this Section 2 with respect to ▇▇▇▇▇▇ Mae or the Servicer constitute
representations, warranties and agreements of ▇▇▇▇▇▇ ▇▇▇ only and not of the
Company):
(a) A registration statement on Form S-3 (File No.
333-104887), 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 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 ▇▇▇▇▇▇ Mae'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, 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
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shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of
the date of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be deemed
to refer to and include any annual report of the Company filed pursuant
to Sections 13(a) or 15(d) of the Exchange Act after the effective date
of the Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended
or supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in the
form in which it is filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act, the Exchange Act and the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), as applicable, and
the rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and any further documents so
filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act, the Exchange Act and
the Trust Indenture Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
of Designated Securities through the Representatives expressly for use
in the Prospectus as amended or supplemented relating to such Designated
Securities;
(c) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration Statement
or the Prospectus 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, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date
as to the Prospectus and any amendment or supplement thereto, 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
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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;
(d) Neither the Company nor ▇▇▇▇▇▇ ▇▇▇ or any of its
subsidiaries has sustained since the date of the financial statements
included as Appendix A to the Form 10-K of SLM Corporation dated March
27, 2003 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, otherwise than as set forth or contemplated in such Information
Statement; and, since such date, there has not been any material adverse
change in the capital stock or long-term debt of the Company or ▇▇▇▇▇▇
Mae or any of its subsidiaries or 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 ▇▇▇▇▇▇ ▇▇▇ or any of its
subsidiaries, taken as a whole, or the Company or the transactions
contemplated hereby, otherwise than as set forth or contemplated in such
financial statements;
(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-owned
subsidiary of ▇▇▇▇▇▇ Mae. ▇▇▇▇▇▇ ▇▇▇ has been duly organized and is
validly existing under the laws of the United States, 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. The Servicer has been duly
formed and is validly existing as a limited partnership in good standing
under the laws of the State of Delaware, with power and authority
(limited partnership and other) 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 ▇▇▇▇▇▇ Mae;
(f) All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable and are owned beneficially and of record by ▇▇▇▇▇▇ ▇▇▇;
(g) This Agreement has been, and each Pricing Agreement with
respect to the Designated Securities upon its execution and delivery by
the Company and ▇▇▇▇▇▇ Mae will have been, duly authorized, executed and
delivered by the Company and ▇▇▇▇▇▇ ▇▇▇. 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
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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 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 and any Pricing Agreement, 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
▇▇▇▇▇▇ Mae is a party or by which the Company or ▇▇▇▇▇▇ ▇▇▇ is bound or
to which any of the property or assets of the Company or ▇▇▇▇▇▇ Mae 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, ▇▇▇▇▇▇ Mae's charter, enabling legislation 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
▇▇▇▇▇▇ Mae 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 ▇▇▇▇▇▇ ▇▇▇ of
the transactions contemplated by this Agreement or any Pricing Agreement
or the Indenture or any Delayed Delivery Contract, except such as have
been, or will have been prior to the Time of Delivery, obtained under
the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriter;
(i) The statements set forth in the Prospectus under the
captions "Description of the Notes" and "Description of the
Certificates" and set forth in the Prospectus Supplement under the
caption "Description of the Notes," insofar as they purport to
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constitute a summary of the terms of the Notes and the Certificates, are
accurate, complete and fair;
(j) ▇▇▇▇▇▇ Mae is not in violation of its charter as set
forth in its enabling legislation or By-laws, and the Company is not in
violation of its Certificate of Formation or Limited Liability Company
Operating Agreement, and neither ▇▇▇▇▇▇ ▇▇▇ 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 recently filed Form 10-K or Form 10-Q, there are no
legal or governmental proceedings pending to which the Company or ▇▇▇▇▇▇
Mae or any of its subsidiaries is a party or of which any property of
the Company or ▇▇▇▇▇▇ ▇▇▇ or any of its subsidiaries is the subject
which, if determined adversely to the Company or ▇▇▇▇▇▇ Mae 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 the ▇▇▇▇▇▇ ▇▇▇ 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 ▇▇▇▇▇▇ Mae'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 (the
"Investment Company Act");
(m) Neither the Company, ▇▇▇▇▇▇ ▇▇▇ 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,
▇▇▇▇▇▇ Mae's representations and warranties in the related Purchase
Agreement and the Administration Agreement, the Company's
representations and warranties in the related 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 ▇▇▇▇▇▇ ▇▇▇ and,
when executed and delivered by the Company and the purchaser named
therein, will constitute a valid and legally binding agreement of the
7
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 Underwriter' Securities, the several Underwriters propose to offer such
Underwriter' Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
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
8
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 ▇▇▇▇▇▇ Mae agrees with such Underwriters that it will
cause the Company:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to make
no further amendment or any supplement to the Registration Statement or
Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Designated Securities and prior to the Time
of Delivery for such Designated Securities, which amendment or
supplement shall be 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
9
any such qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Designated
Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of such Designated Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented, in such quantities as the
Representatives may from time to time reasonably request, and, if the
delivery of a Prospectus is required at any time in connection with the
offering or sale of the Designated Securities and if at such time any
event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and, upon their request, to file such document and to
prepare and furnish without charge to each Underwriter and to any dealer
in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To 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
(e) 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.
6. The Company and ▇▇▇▇▇▇ ▇▇▇ covenant and agree with the several
Underwriters that the Company or ▇▇▇▇▇▇ Mae will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's and ▇▇▇▇▇▇
Mae'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
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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, 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 its 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 in this
Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the reasonable discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company and
▇▇▇▇▇▇ Mae in or incorporated by reference in the Pricing Agreement relating to
such Designated Securities are, at and as of the Time of Delivery for such
Designated Securities, true and correct, the condition that the Company and
▇▇▇▇▇▇ ▇▇▇ shall have performed all of their obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with;
(b) Counsel for the Underwriters shall have furnished
Representatives such opinion or opinions, substantially in the form
attached hereto as Annex II(a), dated the Time of Delivery for such
Designated Securities, with respect to the Designated Securities and
such other related matters as the Representatives may reasonably
request;
11
(c) Internal counsel for the Company, ▇▇▇▇▇▇ Mae and the
Servicer, satisfactory to the Representatives, shall have furnished to
the Representatives a written opinion or opinions, dated the Time of
Delivery for such Designated Securities, substantially in the form
attached hereto as Annex II(c) or as is otherwise satisfactory to the
Representatives;
(d) Special counsel for the Company, ▇▇▇▇▇▇ ▇▇▇ and the
Servicer, satisfactory to the Representatives, shall have furnished to
the Representatives a written opinion or opinions, dated the Time of
Delivery for such Designated Securities, substantially in the form
attached hereto as Annex II(b) or as is otherwise satisfactory to the
Representatives;
(e) Counsel for the Eligible Lender Trustee, satisfactory to
the Representatives, shall have furnished to the Representatives a
written opinion or opinions, dated the Time of Delivery for such
Designated Securities, substantially in the form attached hereto as
Annex II(d) or as is otherwise satisfactory to the Representatives;
(f) Counsel for the Indenture Trustee, satisfactory to the
Representatives, shall have furnished to the Representatives a written
opinion or opinions, dated the Time of Delivery for such Designated
Securities, substantially in the form attached hereto as Annex II(e) or
as is otherwise satisfactory to the Representatives;
(g) At the time a Preliminary Prospectus relating to such
Designated Securities was distributed and on the date of the Pricing
Agreement for such Designated Securities, the independent public
accountants of the Company and ▇▇▇▇▇▇ Mae shall have furnished to the
Representatives a letter or letters with respect to the Company, ▇▇▇▇▇▇
Mae, the statistical and financial information contained in the
Preliminary Prospectus and the Prospectus and certain agreed upon
procedures with respect to the issuance and offering of the Designated
Securities and the related Student Loans, in form and substance
satisfactory to the Representatives and in each case confirming that
such accountants are independent public accountants with the meaning of
the Act and the applicable rules and regulations thereunder;
(h) (i) Neither the Company nor ▇▇▇▇▇▇ ▇▇▇ shall have
sustained since the date of the financial statements included in ▇▇▇▇▇▇
Mae's most recently published Information Statement or Supplement to the
Information Statement 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, otherwise than as set forth or contemplated in
such Information Statement or Supplement to the Information Statement,
and (ii) since such date, there shall not have been any material adverse
change in the capital stock or long-term debt of the Company or ▇▇▇▇▇▇
Mae or any such change, or any development involving a prospective such
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company
or ▇▇▇▇▇▇ ▇▇▇ otherwise than as set forth or contemplated in such
Information Statement or Supplement to the Information Statement, the
effect of which, in any such case described in clause (i) or (ii), is in
the judgment of the Representatives so material and adverse as to make
it impracticable or inadvisable to
12
proceed with the public offering or the delivery of the Underwriters'
Securities on the terms and in the manner contemplated in the Prospectus
as first amended or supplemented relating to the Designated Securities;
(i) On or after the date of the Pricing Agreement relating
to the Designated Securities (i) no downgrading shall have occurred in
the rating accorded ▇▇▇▇▇▇ Mae's debt securities or preferred stock by
any "nationally recognized statistical rating organization," as that
term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act ("Rating Agency"), and (ii) no such Rating Agency shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of ▇▇▇▇▇▇ Mae's debt
securities;
(j) On or after the date of the Pricing Agreement relating
to the Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or any setting of
minimum prices for trading on such exchange; (ii) a general moratorium
on commercial banking activities declared by either Federal or New York
State authorities; or (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in
this clause (iii) in the reasonable judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Underwriters' Securities on the terms
and in the manner contemplated in the Prospectus as theretofore amended
or supplemented relating to the Designated Securities;
(k) Each of the Company and ▇▇▇▇▇▇ Mae shall have furnished
or caused to be furnished to the Representatives at the Time of Delivery
for the Designated Securities a certificate or certificates of officers
of the Company or ▇▇▇▇▇▇ ▇▇▇, as the case may be, satisfactory to the
Representatives as to the accuracy of the representations and warranties
of the Company or ▇▇▇▇▇▇ Mae, as the case may be, herein at and as of
such Time of Delivery, as to the performance by the Company or ▇▇▇▇▇▇
Mae, as the case may be, of all of their obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a), (h) and (i) of this Section and as to such
other matters as the Representatives may reasonably request;
(l) At the Time of Delivery, the Company shall have agreed
to sell to the Underwriters the aggregate principal amount of the
Underwriters' Securities as specified in the related Pricing Agreement
for the Designated Securities and the related Certificates, if any, as
specified in the related underwriting agreement for such Certificates;
(m) The Designated Securities shall be rated as set forth in
the related Prospectus by the Rating Agency (or Agencies) specified in
such Prospectus, and such Rating
13
Agency or Agencies shall not have placed the Designated Securities under
surveillance or review with negative implications;
8. (a) The Company and ▇▇▇▇▇▇ ▇▇▇, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Designated Securities, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and ▇▇▇▇▇▇ Mae shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company or ▇▇▇▇▇▇ ▇▇▇ by any Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company and ▇▇▇▇▇▇ Mae against any losses, claims, damages or
liabilities to which they may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Designated Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company or ▇▇▇▇▇▇ ▇▇▇ by such Underwriter through the Representatives expressly
for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
14
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and ▇▇▇▇▇▇ Mae, on the one hand and
the Underwriters of the Designated Securities on the other from the offering of
the Designated Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and ▇▇▇▇▇▇
▇▇▇, on the one hand and the Underwriters of the Designated Securities on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and ▇▇▇▇▇▇ Mae, on the one hand, and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company and
▇▇▇▇▇▇ ▇▇▇ bear to the total underwriting discounts and commissions received by
such Underwriters. The relative fault shall be
15
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or ▇▇▇▇▇▇ Mae, on
the one hand, or such Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, ▇▇▇▇▇▇ ▇▇▇ and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company and ▇▇▇▇▇▇ Mae under this Section
8 shall be in addition to any liability which the Company and ▇▇▇▇▇▇ ▇▇▇ may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Underwriters and to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company or ▇▇▇▇▇▇
Mae and to each person, if any, who controls the Company or ▇▇▇▇▇▇ ▇▇▇ within
the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Underwriters' Securities which it has agreed to purchase under the
Pricing Agreement relating to such Underwriters' Securities, the Representatives
may in their discretion arrange for themselves or another party or other parties
to purchase such Underwriters' Securities on the terms contained herein and
therein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Underwriters'
Securities, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Underwriters' Securities on such terms. In the
event that, within the respective prescribed period, the Representatives notify
the Company that they have so arranged for the purchase of such Underwriters'
Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Underwriters' Securities, the Representatives or the
Company shall have the
16
right to postpone the Time of Delivery for such Underwriters' Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to the Pricing Agreement
with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Underwriters' Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Underwriters'
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share of the Underwriters'
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made (which share shall only pertain to and will be
based on the principal amount of the specific Designated Securities which such
Underwriter previously agreed to purchase under such Pricing Agreement;
provided, however, that such non-defaulting Underwriter shall not be required to
purchase a share of any particular class of Underwriter's Securities of a
defaulting Underwriter or Underwriters which that Underwriter has not previously
agreed to purchase under such Pricing Agreement). Nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Underwriters' Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Underwriters' Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, ▇▇▇▇▇▇ Mae and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results
17
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company or ▇▇▇▇▇▇ ▇▇▇ or any officer or director or
controlling person of the Company or ▇▇▇▇▇▇ Mae, and shall survive delivery of
and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section
9 or Section 7(j) hereof, the Company and ▇▇▇▇▇▇ ▇▇▇ shall not then be under any
liability to any Underwriter with respect to the Designated Securities covered
by such Pricing Agreement except as provided in Sections 6 and 8 hereof; but, if
for any other reason Underwriters' Securities are not delivered by or on behalf
of the Company as provided herein the Company and ▇▇▇▇▇▇ Mae will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses approved
in writing by the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Securities, but the Company and ▇▇▇▇▇▇ ▇▇▇
shall then be under no further liability to any Underwriter with respect to such
Designated Securities except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company or ▇▇▇▇▇▇ ▇▇▇ shall be delivered or
sent by mail, telex or facsimile transmission to:
SLM Funding LLC
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Vice President
Student Loan Marketing Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address
18
will be supplied to the Company or ▇▇▇▇▇▇ Mae by the Representatives upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company, ▇▇▇▇▇▇ ▇▇▇
and, to the extent provided in Sections 8 and 10 hereof, the officers and
directors of the Company and ▇▇▇▇▇▇ Mae and each person who controls the
Company, ▇▇▇▇▇▇ ▇▇▇ or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when banking institutions are open for
business in New York City, New York.
15. This Agreement and each Pricing Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
19
If the foregoing is in accordance with your understanding, please sign
and return to us 7 counterparts hereof.
Very truly yours,
SLM Funding LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Student Loan Marketing Association
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Accepted as of the date hereof:
Banc One Capital Markets, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Managing Director
▇▇▇▇▇▇ Brothers Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
On behalf of each of the Underwriters
20
ANNEX I
Pricing Agreement
-----------------
As Representatives of the several Underwriters named on Schedule I
hereto,
c/o ________________________
_____________________________
_____________________________
, 200_
Ladies and Gentlemen:
SLM Funding LLC, a Delaware limited liability company (the "Company"),
and the Student Loan Marketing Association, a corporation formed under the laws
of the United States ("▇▇▇▇▇▇ ▇▇▇"), propose, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated __________,
200__ (the "Underwriting Agreement"), between the Company and ▇▇▇▇▇▇ Mae, on the
one hand, and _____________ and _________________, on the other hand, that the
Company will cause the trust (the "Trust") formed pursuant to the Trust
Agreement dated as of _______, 200__ between the Company and _______, as trustee
(the "Eligible Lender Trustee"), to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Student Loan-Backed Notes (the
"Notes") specified in Schedule II hereto (the "Designated Securities"). The
Notes will be issued and secured pursuant to the Indenture, dated ___________
(the "Indenture"), between the Trust and _________, as trustee (the "Indenture
Trustee").
Each of the provisions of the Underwriting Agreement is incorporated
herein by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement,
except that each representation and warranty which refers to the Prospectus in
Section 2 of the Underwriting Agreement shall be deemed to be a representation
or warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Pricing Agreement in relation to the Prospectus as amended or
supplemented relating to the Designated Securities which are the subject of this
Pricing Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the Representatives
and on behalf of each of the Underwriters of the Designated Securities pursuant
to Section 12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
cause the Trust to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto, less the principal
amount of Designated Securities covered by Delayed Delivery Contracts, if any,
as may be specified in Schedule II.
During the period beginning from the date of this Pricing Agreement for
the Designated Securities and continuing to and including [Closing Date], the
Company agrees, and ▇▇▇▇▇▇ ▇▇▇ agrees that it will cause the Company, not to,
and not to permit any affiliated entity to, offer, sell, contract to sell or
otherwise dispose of, any securities (other than the Designated Securities)
collateralized by, or any securities evidencing an ownership in, Student Loans,
without the prior written consent of the Representatives.
Each Underwriter represents and agrees that (a) it has not
offered or sold and will not offer or sell any Notes to persons in the United
Kingdom prior to the expiration of the period of six months from the issue date
of the Notes except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995; (b) it
has only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment
activity, with the meaning of section 21 of the Financial Services and Markets
Act 2000 (the "FSMA"), received by it in connection with the issue or sale of
Notes in circumstances in which section 21(1) of the FSMA does not apply to the
Company; and (c) it has complied and will comply with all applicable provisions
of the FSMA with respect to anything done by it in relation to the Notes in,
from or otherwise involving the United Kingdom. The Company represents and
agrees that it has been informed of the existence of the FSA stabilizing
guidance contained in Section MAR 2, ▇▇▇ 2G of the FSA Handbook (the Handbook of
rules and guidance issued by the Financial Services Authority).
If the foregoing is in accordance with your understanding, please sign
and return to us _______ counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement
2
between each of the Underwriters and the Company and ▇▇▇▇▇▇ ▇▇▇. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company and ▇▇▇▇▇▇ Mae for examination upon request, but without warranty on the
part of the Representatives as to the authority of the signers thereof.
Very truly yours,
SLM Funding LLC
By:
---------------------------------
Name:
Title:
Student Loan Marketing Association
By:
---------------------------------
Name:
Title:
3
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
4
SCHEDULE I
Principal Amount of Designated Securities to be Purchased
Underwriter Class ___ Class ___ Class ___
SCHEDULE II
Title of each Class of Designated Securities:
Aggregate principal amount of each Class:
Price to Public of each Class:
Purchase Price by Underwriters of each Class:
Specified funds for payment of purchase price:
Indenture:
Maturity:
Interest Rate:
Form of Designated Securities:
Time of Delivery:
Closing location for delivery of Designated Securities:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
2
ANNEX II(a)
The Underwriters: Outside Counsel Opinion
[Opinions to be issued, which together will be substantially in the form
provided for SLM Student Loan Trust 2003-3]
ANNEX II(b)
The Company, ▇▇▇▇▇▇ ▇▇▇ and the Servicer: Outside Counsel Opinion
[Opinions to be issued, which together will be substantially in the form
provided for SLM Student Loan Trust 2003-3]
ANNEX II(c)
The Company, ▇▇▇▇▇▇ Mae and the Servicer: Internal Counsel Opinion
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2003-3]
ANNEX II(d)
Eligible Lender Trustee: Counsel Opinion
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2003-3]
2
ANNEX II(e)
Indenture Trustee: Counsel Opinion
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2003-3]
ANNEX III
DELAYED DELIVERY CONTRACT
SLM Funding LLC
c/o ____________________
____________________________
____________________________
Attention:________________________ _____________ , 20__
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SLM Funding LLC
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
$___________
principal amount of the Company's ________ (hereinafter called the "Designated
Securities"), offered by the Company's Prospectus, dated ______________, 20__,
as amended or supplemented, receipt of a copy of which is hereby acknowledged,
at a purchase price of _____% of the principal amount thereof, plus accrued
interest from the date from which interest accrues as set forth below, and on
the further terms and conditions set forth below.
The undersigned will purchase the Designated Securities from the Company
on ______________, 20__ (the "Delivery Date") and interest on the Designated
Securities so purchased will accrue from ______________, 20__.
[The undersigned will purchase the Designated Securities from the
Company on the delivery date or dates and in the principal amount or amounts set
forth below:
PRINCIPAL DATE FROM WHICH
DELIVERY DATE AMOUNT INTEREST ACCRUES
_________________, 20__ $_____________ ________________, 20__
_________________, 20__ $_____________ ________________, 20__
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date."(4)]
Payment for the Designated Securities which the undersigned has agreed
to purchase on [the] [each] Delivery Date shall be made to the Company or its
order by certified or official bank check in __________ Clearing House funds at
the office of __________, _________, __________, or by wire transfer to a bank
account specified by the Company, on [the] [such] Delivery Date upon delivery to
the undersigned of the Designated Securities then to be purchased by the
undersigned in definitive fully registered form and in such denominations and
registered in such names as the undersigned may designate by written, telex or
facsimile communication addressed to the Company not less than five full
business days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Designated Securities on [the] [each] Delivery Date shall be subject to the
condition that the purchase of Designated Securities to be made by the
undersigned shall not on [the] [such] Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject. The obligation of the
undersigned to take delivery of and make payment for Designated Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Designated Securities pursuant to other contracts similar to this
contract.
[The undersigned understands that Underwriters (the "Underwriters") are
also purchasing Designated Securities from the Company, but that the obligations
of the Undersigned hereunder are not contingent on such purchases]. Promptly
after completion of the sale to the Underwriters the Company will mail or
deliver to the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the Opinion of Counsel for the Company delivered to the
Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
F-2
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts need not
be on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
Yours very truly,
By:
---------------------------------
(Authorized Signature)
Name:
Title:
---------------------------------
(Address)
Accepted: ______________________, 20__
SLM Funding LLC
By:
-------------------------------------
Name:
Title:
F-3
