Exhibit 1.1
Underwriting Agreement dated February 10, 2004
$462,000,000
Education Loans Incorporated
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STUDENT LOAN ASSET-BACKED NOTES, SERIES 2004-1
consisting of
$83,900,000 Student Loan Asset-Backed Notes, Senior Series 2004-A1
$83,900,000 Student Loan Asset-Backed Notes, Senior Series 2004-A2
$83,900,000 Student Loan Asset-Backed Notes, Senior Series 2004-A3
$83,900,000 Student Loan Asset-Backed Notes, Senior Series 2004-A4
$83,900,000 Student Loan Asset-Backed Notes, Senior Series 2004-A5
$42,500,000 Student Loan Asset-Backed Notes, Subordinate Series 2004-B1
Underwriting Agreement
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February 10, 2004
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.,
as Representative of the Underwriters named herein
c/o RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
Education Loans Incorporated, a Delaware corporation ("EdLinc") and
wholly-owned subsidiary of Student Loan Finance Corporation, a South Dakota
corporation ("SLFC"), proposes to sell $462,000,000 aggregate principal amount
of its Student Loan Asset-Backed Notes, Series 2004-1 (the "Notes") to RBC ▇▇▇▇
▇▇▇▇▇▇▇▇ Inc. and ▇▇▇▇▇▇▇▇▇ & Company LLC (collectively, the "Underwriters" and
each individually an "Underwriter") for whom you (the "Representative") are
acting as representative pursuant to the terms of this Underwriting Agreement
(this "Agreement"). The Notes are to be issued in four series designated as
Student Loan Asset-Backed Notes, Senior Series 2004-A1 (the "Series 2004-A1
Notes"), Student Loan Asset-Backed Notes, Senior Series 2004-A2 (the "Series
2004-A2 Notes"), Student Loan Asset-Backed Notes, Senior Series 2004-A3 (the
"Series 2004-A3 Notes"), Student Loan Asset-Backed Notes, Senior Series 2004-A4
(the "Series 2004-A4 Notes"), Student Loan Asset-Backed Notes, Senior Series
2004-A5 (the "Series 2004-A5 Notes", and together with the Series 2004-A1 Notes,
the Series 2004-A2 Notes, the Series 2004-A3 Notes and the Series 2004-A4 Notes,
the "Series 2004-1 Senior Notes"), and Student Loan Asset-Backed Notes,
Subordinate Series 2004-B1 (the "Series 2004-1 Subordinate Notes"). The initial
aggregate principal amounts of each series of Notes shall be as listed in
Appendix A hereto.
The Notes shall be as described in, shall be subject to redemption and
auction, shall have such other provisions and details and shall be issued
pursuant to the First
Underwriting Agreement dated February 10, 2004
Supplemental Indenture, dated as of February 1, 2004 (the "Supplemental
Indenture"), supplemental to an Indenture of Trust, dated as of February 1, 2004
(as supplemented and amended, the "Indenture"), between EdLinc and U.S. Bank
National Association, as trustee (the "Trustee"). Upon issuance, the Trustee
shall use proceeds of the Notes as described in the Prospectus (as hereinafter
defined) to originate Student Loans and to purchase Student Loans from Goal
Funding, Inc., a Delaware corporation (the "Transferor") and wholly-owned
subsidiary of SLFC, from Goal Funding II, Inc., a Delaware corporation (the
"Transferor II") and wholly-owned subsidiary of SLFC, and from unaffiliated
lenders. The Notes will be secured by, among other things, Financed Student
Loans pledged to the Trustee and described in the Prospectus.
Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in Appendix B hereto.
1. Agreement to Sell, Purchase and Resell
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(a) EdLinc hereby agrees, subject to all of the terms and conditions
set forth herein, to sell to the Underwriters and, upon the basis of the
representations, warranties and agreements of EdLinc, the Transferor, the
Transferor II and SLFC herein contained and subject to all of the terms and
conditions set forth herein, the Underwriters, jointly and severally, agree to
purchase from EdLinc, all (but not less than all) of the Notes at the aggregate
purchase price of $460,198,200, and EdLinc hereby agrees to pay on behalf of the
Underwriters, the fees of counsel to the Underwriters in the aggregate amount of
$125,000, plus the expenses of counsel to the Underwriters. The maturity dates,
purchase prices and underwriting discounts for each series of the Notes shall be
as listed in Appendix A hereto.
(b) The Series 2004-1 Senior Notes and the Series 2004-1 Subordinate
Notes shall bear interest for the period commencing on the date of issuance of
the Notes through the end of the respective Initial Interest Periods at the
respective per annum rates specified in Appendix A hereto. Thereafter, such
rates per annum shall be determined in accordance with the Supplemental
Indenture.
(c) It is understood that the Underwriters propose to offer the Notes
for sale to the public (which may include selected dealers) as set forth in the
Prospectus. The Notes may be offered and sold to certain dealers (including the
Underwriters and other dealers depositing such Notes into investment trusts or
mutual funds) at prices lower than such public offering prices.
(d) The Representative is duly authorized to execute this Agreement
and to act hereunder on behalf of the Underwriters.
(e) Each Underwriter severally represents and agrees that (i) it has
not offered or sold, and will not offer or sell, any Notes to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purpose 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; (ii) it
has complied and will comply with all applicable provisions of the Financial
Services Act of 1986
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Underwriting Agreement dated February 10, 2004
with respect to anything done by it in relation to the Notes in, from or
otherwise involving the United Kingdom; and (iii) it has only issued or passed
on, and will only issue and pass on, in the United Kingdom any document received
by it in connection with the issue of the Notes to a person who is of a kind
described in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisements) (Exemptions) Order 1996 or to a person to whom such document may
otherwise lawfully be issued, distributed or passed on.
2. Delivery of the Notes and Payment Therefor
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At 11:00 A.M., New York City time, on February 11, 2004, or at such
other time or on such earlier or later business day as shall have been mutually
agreed upon by EdLinc, SLFC, the Transferor, the Transferor II and the
Underwriters (the "Closing Date"), EdLinc will deliver to DTC, for the account
of the Underwriters, the Notes in definitive form bearing CUSIP numbers, duly
executed and authenticated, together with the other documents hereinafter
mentioned; and the Underwriters will accept such delivery and pay the purchase
price of the Notes as set forth in Section 1 hereof in immediately available
funds to the account of EdLinc and EdLinc shall pay to Underwriters' counsel, on
behalf of the Underwriters, the fees of Underwriters' counsel as set forth in
Section 1 hereof in immediately available funds to the account of ▇▇▇▇▇ &
▇▇▇▇▇▇▇. The expenses of Underwriters' counsel shall be paid by Edlinc, on
behalf of the Underwriters, following the closing upon submission of an invoice
by Underwriter's counsel. Delivery of the Notes and payment as aforesaid shall
be made at such location in New York, New York as shall be requested by the
Representative. Delivery of the other documents shall be at the offices of
▇▇▇▇▇▇ & Whitney LLP, ▇▇ ▇▇▇▇▇ ▇/▇▇/ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇. This payment and delivery is herein called the "Closing". The Notes
delivered at the Closing shall be made available to the Trustee for the benefit
of the Underwriters, to facilitate a "Fast" closing through DTC, at least one
business day prior to the date of the Closing for purposes of inspection. The
Notes shall be prepared and delivered as fully registered notes in authorized
denominations and registered in such manner as the Representative shall have
requested.
3. Representations and Warranties of EdLinc, SLFC, the Transferor
--------------------------------------------------------------
and the Transferor II.
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EdLinc, SLFC, the Transferor and the Transferor II represent and
warrant to, and agree with, the Underwriters that:
(a) A registration statement on Form S-3 (File Nos. 333-110741,
333-85963 and 333-68072), including a prospectus and such amendments thereto as
may have been required to the date hereof, relating to the Notes and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act") has been filed with
the Securities and Exchange Commission (the "Commission") and such registration
statement, as amended, has become effective under the Securities Act; such
registration statement, as amended, including all information (if any) deemed to
be a part of such registration statement as of the Effective Time (as defined
below), and including the exhibits thereto and any material incorporated by
reference therein, and the prospectus and the prospectus supplement relating to
the sale of the Notes offered thereby constituting a part thereof, as amended or
supplemented including any prospectus filed under Rule 424(b) under the
Securities Act, are
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Underwriting Agreement dated February 10, 2004
respectively referred to herein as the "Registration Statement" and the
"Prospectus"; and the conditions to the use of a registration statement on Form
S-3 under the Securities Act, as set forth in the General Instructions to Form
S-3, and the conditions of Rule 415 under the Securities Act have been satisfied
with respect to the Registration Statement. For purposes of this Agreement,
"Effective Time" means (x) if EdLinc has advised the Representative that it does
not propose to amend the Registration Statement, the date and time as of which
the Registration Statement, or the most recent amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared effective by
the Commission, or (y) if EdLinc has advised the Representative that it proposes
to file an amendment or post effective amendment to the Registration Statement,
the date and time as of which the Registration Statement, as amended by such
amendment or post effective amendment, as the case may be, is declared effective
by the Commission. "Effective Date" means the date of the Effective Time. Copies
of the Registration Statement, the Prospectus and all other documents which were
filed by EdLinc with the Commission on or prior to the date hereof have been
delivered to you. For purposes of this Agreement, all references to the
Registration Statement and the Prospectus or any amendment or supplement thereto
shall be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System ("▇▇▇▇▇").
(b) On the Effective Date, on the date of this Agreement and on the
Closing Date, the Registration Statement and the Prospectus conformed, conform
and will conform in all material respects to the requirements of the Securities
Act, the rules and regulations of the Commission (the "Rules and Regulations")
and the Trust Indenture Act of 1939, as amended, and the rules and regulations
thereunder (the "Trust Indenture Act"), and in the case of the Registration
Statement, did not, does not and will not include any 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 and in the case of the
Prospectus, did not, does not and will not include any 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, in the light of the circumstances
under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements made in reliance
upon and in conformity with information furnished in writing to EdLinc by the
Underwriters expressly for use therein. There are no contracts or other
documents required by the Securities Act or by the Rules and Regulations to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which have not been described or filed as
required. The Prospectus delivered to the Underwriter for use in connection with
the offering of the Notes was identical to the electronically transmitted copies
thereof filed with the Commission.
(c) The Commission has not issued and, to the best knowledge of
EdLinc and SLFC, is not threatening to issue any order preventing or suspending
the use of the Registration Statement. No order preventing or suspending the use
of any prospectus has been issued by the Commission or any state regulatory
authority or other jurisdictional regulatory agency ("Blue Sky Authorities").
(d) As of the Closing Date, each consent, approval, authorization or
order of, or filing with, any court or governmental agency or body which is
required to be obtained or made by EdLinc, SLFC, the Transferor, the Transferor
II or any of their affiliates for the
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Underwriting Agreement dated February 10, 2004
consummation of the transactions contemplated by this Agreement shall have been
obtained, except as otherwise provided in the Basic Documents.
(e) EdLinc has the requisite power and authority to execute, deliver
and perform its obligations under the Indenture, the Supplemental Indenture, the
Letter of Representations and the Auction Agent Agreement. The Indenture has
been duly and validly authorized, executed and delivered by EdLinc and, assuming
due authorization, execution and delivery by the other parties thereto,
constitutes the valid and legally binding agreement of EdLinc, enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws of
general applicability affecting creditors' rights or general equitable
principles. The Supplemental Indenture, the Letter of Representations and the
Auction Agent Agreement have been duly and validly authorized by EdLinc and,
upon their execution and delivery by EdLinc, assuming due authorization,
execution and delivery by the other parties thereto, will be duly executed and
delivered by EdLinc and will constitute valid and legally binding agreements of
EdLinc, enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws of general applicability affecting creditors' rights or
general equitable principles. The Indenture, the Supplemental Indenture, the
Letter of Representations and the Auction Agent Agreement conform in all
material respects to the descriptions thereof in the Prospectus.
(f) EdLinc has the requisite power and authority to issue the Notes.
The Notes have been duly authorized by EdLinc and, when executed by EdLinc,
authenticated by the Trustee in accordance with the Indenture and delivered to
the Underwriters against payment therefor in accordance with the terms hereof,
will have been validly issued and delivered, and will constitute valid and
legally binding obligations of EdLinc entitled to the benefits of the Indenture
and enforceable in accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, moratorium, or other similar laws of
general applicability relating to or affecting creditors' rights or general
equitable principles. The Notes conform in all material respects to the
description thereof in the Prospectus.
(g) EdLinc and the Transferor each has the requisite power and
authority to execute, deliver and perform its obligations under the Transferor's
Transfer Agreement. The Transferor's Transfer Agreement has been duly and
validly authorized by EdLinc and the Transferor and, upon their execution and
delivery (assuming due authorization, execution and delivery by the other
parties thereto) will be duly executed and delivered by each of EdLinc and the
Transferor and will constitute a valid and legally binding agreement of each of
EdLinc and the Transferor, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws of general applicability relating to or
affecting creditors' rights or general equitable principles. The Transferor's
Transfer Agreement conforms in all material respects to the descriptions thereof
in the Prospectus.
(h) EdLinc and the Transferor II each has the requisite power and
authority to execute, deliver and perform its obligations under the Transferor
II's Transfer Agreement. The Transferor II's Transfer Agreement has been duly
and validly authorized by EdLinc and the Transferor II and, upon their execution
and delivery (assuming due authorization, execution and
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Underwriting Agreement dated February 10, 2004
delivery by the other parties thereto) will be duly executed and delivered by
each of EdLinc and the Transferor II and will constitute a valid and legally
binding agreement of each of EdLinc and the Transferor II, enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws of
general applicability relating to or affecting creditors' rights or general
equitable principles. The Transferor II's Transfer Agreement conforms in all
material respects to the descriptions thereof in the Prospectus.
(i) EdLinc, SLFC, the Transferor and the Transferor II each have all
requisite power and authority to execute, deliver and perform its respective
obligations under this Agreement; the execution and delivery of, and the
performance by each of EdLinc, SLFC, the Transferor and the Transferor II of its
respective obligations under this Agreement have been duly and validly
authorized by EdLinc, SLFC, the Transferor and the Transferor II, respectively,
and this Agreement has been duly executed and delivered by each of them and
constitutes the valid and legally binding agreement of each of them, enforceable
against each of them in accordance with its terms, except as the enforcement may
be limited by bankruptcy, insolvency, moratorium, or other similar laws relating
to or affecting creditors' rights generally or general equitable principles, and
except as rights to indemnity and contribution hereunder may be limited by
federal or state securities laws or principles of public policy.
(j) EdLinc has duly adopted EdLinc's Authorizing Resolutions and has
duly approved the execution, delivery and performance of the Basic Documents,
this Agreement, EdLinc's Program Agreements, the furnishing and use of the
information contained in the Prospectus, and the taking of any and all such
actions as may be required on the part of EdLinc to carry out, give effect to
and consummate the transactions contemplated by this Agreement, the Prospectus,
the Basic Documents, and EdLinc's Program Agreements, and all approvals
necessary in connection with the foregoing have been obtained.
(k) SLFC, the Transferor and the Transferor II have duly adopted
SLFC's Authorizing Resolutions, the Transferor's Authorizing Resolutions and the
Transferor II's Authorizing Resolutions, respectively, and have duly approved
the execution, delivery and performance of the Basic Documents to which such
entity is a party, SLFC's Program Agreements, the Transferor's Program
Agreements and the Transferor II's Program Agreements, as applicable, the
furnishing and use of the information contained in the Prospectus, and the
taking of any and all such actions as may be required on the part of SLFC, the
Transferor and the Transferor II to carry out, give effect to and consummate the
transactions contemplated by this Agreement, the Prospectus, EdLinc's Program
Agreements, the Transferor's Program Agreements, the Transferor II's Program
Agreements, SLFC's Program Agreements and the Basic Documents, and all approvals
necessary in connection with the foregoing have been obtained.
(l) EdLinc, the Transferor, the Transferor II and SLFC each has the
requisite power and authority to execute, deliver and perform its respective
obligations under EdLinc's Program Agreements, the Transferor's Program
Agreements, the Transferor II's Program Agreements and SLFC's Program Agreements
to which it is a party. EdLinc's Program Agreements, the Transferor's Program
Agreements, the Transferor II's Program Agreements and SLFC's Program Agreements
have been duly and validly authorized by EdLinc, the Transferor,
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Underwriting Agreement dated February 10, 2004
the Transferor II and SLFC to the extent each is a party thereto and, assuming
due authorization, execution and delivery by the other parties thereto, duly
executed and delivered by EdLinc, the Transferor, the Transferor II and SLFC,
respectively, and constitute valid and legally binding agreements of EdLinc, the
Transferor, the Transferor II and SLFC, respectively, enforceable in accordance
with their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws of general
applicability affecting creditors' rights or general equitable principles.
EdLinc's Program Agreements, the Transferor's Program Agreements, the Transferor
II's Program Agreements and SLFC's Program Agreements conform in all material
respects to the descriptions thereof in the Prospectus.
(m) EdLinc is a Delaware corporation and wholly owned subsidiary of
SLFC, is duly organized, validly existing and in good standing under the laws of
the State of Delaware, with the requisite power and authority to own, lease and
operate its properties and to conduct its business as conducted on the date
hereof and as contemplated in the Prospectus and with full power and authority
to own and pledge its assets and to issue the Notes as described in the
Prospectus. EdLinc is duly qualified to conduct its business and is in good
standing in each jurisdiction where the nature of its properties or the conduct
of its business requires such qualification, except where the failure so to
qualify could not have a material adverse effect on its condition (financial or
other), business, prospects, properties, net worth or results of operations.
(n) SLFC is a corporation duly organized, validly existing and in
good standing under the laws of the State of South Dakota, with the requisite
power and authority to own, lease and operate its properties and to conduct its
business as conducted on the date hereof and as contemplated in the Prospectus,
and is duly qualified to conduct its business and is in good standing in each
jurisdiction where the nature of its properties or the conduct of its business
requires such qualification, except where the failure so to qualify could not
have a material adverse effect on its condition (financial or other), business,
prospects, properties, net worth or results of operations.
(o) The Transferor and the Transferor II are each a Delaware
corporation and wholly owned subsidiary of SLFC, are each duly organized,
validly existing and in good standing under the laws of the State of Delaware,
with the requisite power and authority to own, lease and operate their
respective properties and to conduct their respective businesses as conducted on
the date hereof and as contemplated in the Prospectus. The Transferor and the
Transferor II are each duly qualified to conduct their respective businesses and
are each in good standing in each jurisdiction where the nature of their
respective properties or the conduct of their respective businesses requires
such qualification, except where the failure so to qualify could not have a
material adverse effect on their respective condition (financial or other),
business, prospects, properties, net worth or results of operations.
(p) There is no action, suit, proceeding, inquiry or investigation,
at law or in equity, or before or by any court, governmental or public board or
body, pending or known to be threatened against or affecting EdLinc, SLFC, the
Transferor or the Transferor II or to which EdLinc, SLFC, the Transferor, the
Transferor II or any of their respective properties is subject, nor to the best
of the knowledge of EdLinc, SLFC, the Transferor and the Transferor II is there
any basis therefor, that are not disclosed in the Prospectus and wherein an
unfavorable decision,
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Underwriting Agreement dated February 10, 2004
ruling or finding would materially adversely affect the validity or
enforceability of the Notes, EdLinc's Authorizing Resolutions, SLFC's
Authorizing Resolutions, the Transferor's Authorizing Resolutions, the
Transferor II's Authorizing Resolutions, the Basic Documents, EdLinc's Program
Agreements, the Transferor's Program Agreements, the Transferor II's Program
Agreements, SLFC's Program Agreements, the Investment Agreement, this Agreement
or any other agreement or instrument to which EdLinc, SLFC, the Transferor or
the Transferor II is a party, used or contemplated for use in the consummation
of transactions contemplated by this Agreement, the Basic Documents, EdLinc's
Program Agreements, the Transferor's Program Agreements, the Transferor II's
Program Agreements, SLFC's Program Agreements, the Investment Agreement or by
the Prospectus.
(q) Neither the offer, sale or delivery of the Notes by EdLinc, nor
the execution, delivery or performance of this Agreement, any of the Basic
Documents or any of EdLinc's Program Agreements, the Transferor's Program
Agreements, the Transferor II's Program Agreements, or SLFC's Program Agreements
by EdLinc, SLFC, the Transferor or the Transferor II, nor the adoption of the
EdLinc's Authorizing Resolutions, SLFC's Authorizing Resolutions, the
Transferor's Authorizing Resolutions, or the Transferor II's Authorizing
Resolutions, nor the consummation by EdLinc, SLFC, the Transferor or the
Transferor II of the transactions contemplated hereby or thereby (i) requires or
will require any consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative agency
or other governmental body, agency or official (except for compliance with the
federal securities laws or Blue Sky laws of various jurisdictions, the
qualification of the Indenture under the Trust Indenture Act and such other
consents, approvals or authorizations as shall have been obtained prior to the
Closing Date), or (ii) conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the organizational documents of
EdLinc, SLFC, the Transferor or the Transferor II or (iii) conflicts or will
conflict with or constitutes or will constitute a breach of, or a default under,
in any material respect, any material agreement, indenture, lease or other
instrument to which EdLinc, SLFC, the Transferor or the Transferor II is a party
or by which EdLinc, SLFC, the Transferor or the Transferor II or any of their
respective properties may be bound, or (iv) violates or will violate in any
material respect any statute, law, regulation or filing or judgment, injunction,
order or decree applicable to EdLinc, SLFC, the Transferor or the Transferor II
or any of their respective properties, or (v) results or will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of EdLinc, SLFC, the Transferor or the Transferor II pursuant to the
terms of any agreement or instrument to which any is a party or by which any may
be bound or to which any of their respective properties is subject other than as
contemplated by the Basic Documents.
(r) Neither EdLinc, SLFC, the Transferor nor the Transferor II is,
and following the consummation of the transactions contemplated hereby and the
use of proceeds from the Notes as described in the Prospectus will be, an
"investment company" under the Investment Company Act of 1940, as amended (the
"1940 Act').
(s) Neither EdLinc, SLFC, the Transferor 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 Statute and
EdLinc, SLFC, the Transferor and the Transferor II agree to comply with such
Section if prior to the completion of the distribution of the Notes it commences
doing such business. EdLinc, SLFC, the Transferor and the Transferor
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Underwriting Agreement dated February 10, 2004
II are not, and have not at any time been, in default in the payment of
principal of or interest on any obligations of EdLinc, SLFC, the Transferor or
the Transferor II, respectively.
(t) The representations and warranties made by (i) EdLinc herein, in
the Basic Documents, in EdLinc's Program Agreements and in any officer's
certificate delivered pursuant hereto or thereto and (ii) the Transferor, the
Transferor II and SLFC herein, in EdLinc's Program Agreements, in the
Transferor's Program Agreements, in the Transferor II's Program Agreements, in
SLFC's Program Agreements, and in any officer's certificate of the Transferor,
the Transferor II or SLFC delivered pursuant hereto or thereto, will be true and
correct at the time made and on and as of the Closing Date.
(u) The Indenture will create a first lien upon the Financed Student
Loans and a valid pledge of and perfected security interest in the entire Trust
Estate, subject only to the provisions of the Indenture permitting the
application thereof for the purposes and on the terms and conditions set forth
therein. On the Closing Date, the Trustee will have legal title to the Trust
Estate for the benefit of EdLinc, including without limitation the Financed
Student Loans, and no lien other than the lien of the Indenture will exist with
respect to any asset which constitutes a part of the Trust Estate securing the
Notes.
(v) Neither EdLinc, SLFC, the Transferor or the Transferor II nor any
agent acting on any of their behalf has taken or will take any action that might
cause this Agreement or the sale of the Notes to violate Regulations G, T, U, or
X of the Board of Governors of the Federal Reserve System, in each case as in
effect, or as the same may hereafter be in effect, as of the Closing.
(w) Other than as contemplated by this Agreement or as disclosed in
the Prospectus, there is no broker, finder or other party that is entitled to
receive from SLFC or any of its subsidiaries any brokerage or finder's fee or
other fee or commission as a result of any transactions contemplated by this
Agreement.
4. Agreements of EdLinc, SLFC, the Transferor and the Transferor II
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EdLinc, SLFC, the Transferor and the Transferor II agree with the
Underwriters as follows:
(a) Prior to the execution of this Agreement, EdLinc has, pursuant to
Rule 424(b) under the Securities Act, prepared and filed a prospectus and
prospectus supplement, properly completed, with the Commission relating to the
Notes. EdLinc will advise the Representative promptly of any proposal to amend
or supplement the Registration Statement or the Prospectus and will not effect
such amendment or supplement without the consent of the Representative prior to
the Closing Date, and thereafter will not effect any such amendment or
supplement relating to or affecting the Notes to which the Representative
reasonably objects; provided, however, no consent of the Representative shall be
required in connection with any filing made pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder; EdLinc will also advise the Representative promptly of
any request by the Commission for any amendment of or supplement to the
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Underwriting Agreement dated February 10, 2004
Registration Statement or the Prospectus or for any additional information; and
EdLinc will also advise the Representative promptly of the effectiveness of the
Registration Statement and of any amendment or supplement to the Registration
Statement or the Prospectus, of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
known threat of any proceeding for that purpose, of the suspension of the
qualification of the Notes for offering or sale in any jurisdiction, and of the
initiation or threatening of any proceeding relating to the offering or sale of
the Notes; and EdLinc will use its best efforts to prevent the issuance of any
such stop order or other order preventing or suspending the use of the
Prospectus or suspending the qualification of the Indenture or the Notes for
offering or sale in any jurisdiction and, in the event of the issuance of any
stop order or of any other such order, promptly use its best efforts to obtain
the withdrawal of such order.
(b) If the delivery of a prospectus is required at any time under the
Securities Act after an event has occurred which results in the Prospectus, as
then amended or supplemented, including an untrue statement of a material fact
or omitting to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or, if for any other reason it shall be necessary to amend or
supplement the Prospectus to comply with the Securities Act, the Rules and
Regulations or the Trust Indenture Act, EdLinc and SLFC will notify the
Underwriters and, upon the Underwriters' request, prepare and file with the
Commission and furnish, without charge to the Underwriters and to any dealer in
securities, as many copies as the Underwriters may from time to time reasonably
request, an amendment or supplement to such Prospectus which corrects such
statement or omission or amendment that effects such compliance.
(c) EdLinc and SLFC will immediately inform the Representative (i) of
the receipt by EdLinc or SLFC of any communication from the Commission or any
state securities authority concerning the offering or sale of the Notes and (ii)
of the commencement of any lawsuit or proceeding to which EdLinc or SLFC is a
party relating to the offering or sale of the Notes.
(d) EdLinc will furnish to the Underwriters, without charge, copies
of the Registration Statement (at least one copy of which will be signed and
include all documents and exhibits thereto or incorporated by reference
therein), the Prospectus, and all amendments and supplements to such documents
relating to the Notes, in each case in such quantities as the Underwriters may
reasonably request.
(e) EdLinc, SLFC, the Transferor and the Transferor II will cooperate
with the Underwriters and with its counsel in connection with the qualification
of, or procurement of exemptions with respect to, the Notes for offering and
sale by the Underwriters and by dealers, and with the determination of their
eligibility for investment, under the laws of such jurisdictions as the
Underwriters may designate and will file such consents to service of process or
other documents necessary or appropriate to effect such qualification or
exemptions; provided that in no event shall either the Transferor, the
Transferor II, SLFC or EdLinc be obligated to qualify to do business in any
jurisdiction where it is not now so qualified (other than the State of South
Dakota if not currently so qualified) or to take any action which would subject
it to service of process in suits, other than those arising out of the offering
or sale of the Notes, in any jurisdiction where it is not now so subject.
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Underwriting Agreement dated February 10, 2004
(f) EdLinc, SLFC, the Transferor and the Transferor II consent to the
use, in accordance with the securities or Blue Sky laws of such jurisdictions in
which the Notes are offered by the Underwriters and by dealers, of the
Prospectus.
(g) To the extent, if any, that the ratings provided with respect to
the Notes by the Rating Agencies are conditional upon the furnishing of
documents or the taking of any other actions by EdLinc, SLFC, the Transferor or
the Transferor II, SLFC, EdLinc, SLFC, the Transferor and the Transferor II
shall cause to be furnished such documents and such other actions to be taken.
(h) So long as any of the Notes are outstanding, EdLinc, SLFC, the
Transferor or the Transferor II will furnish to the Underwriters (i) as soon as
available, a copy of each document relating to EdLinc, SLFC, the Transferor, the
Transferor II or the Notes required to be filed with the Commission pursuant to
the Exchange Act, or any order of the Commission thereunder, and (ii) such other
information concerning EdLinc, SLFC, the Transferor or the Transferor II, as the
Underwriters may request from time to time.
(i) To make generally available to the Noteholders and the
Underwriters as soon as practicable, a copy of each Monthly Servicing Report (as
defined in the Indenture) required under the Indenture and the Servicing
Agreement, and to file with the Commission on Form 8-K such Monthly Servicing
Reports for at least 12 consecutive months beginning after the effective date of
the Registration Statement (as defined in Rule 158(c) under the Securities Act)
in compliance with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including Rule 158).
(j) If this Agreement shall terminate or shall be terminated after
execution and delivery pursuant to any provisions hereof or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of EdLinc, SLFC, the Transferor or the Transferor II to comply with the
terms or fulfill any of the conditions of this Agreement SLFC agrees to
reimburse the Underwriters for all out-of-pocket expenses (including, without
limitation, fees and expenses of its counsel; costs related to its due diligence
investigation of EdLinc, SLFC, the Transferor and the Transferor II; costs of
preparing to market and the actual marketing of the Notes; and costs incurred in
the performance of its obligations hereunder) reasonably incurred by them in
their roles as Underwriters, but without any further obligation on the part of
SLFC for loss of profits or otherwise.
(k) The net proceeds from the sale of the Notes hereunder will be
applied substantially in accordance with the description set forth in the
Prospectus. EdLinc, SLFC, the Transferor and the Transferor II will not take or
omit to take any action which will in any way cause the proceeds from the sale
of the Notes to be applied in a manner contrary to that provided for in the
Prospectus and the Indenture.
(l) Except as stated in this Agreement and in the Prospectus, neither
EdLinc, the Transferor, the Transferor II nor SLFC has taken, nor will any of
them take, and each of them will use their best efforts to cause each of their
respective directors and officers not to take, directly or indirectly, any
action designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Notes to facilitate the sale
or resale of
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Underwriting Agreement dated February 10, 2004
the Notes; it being understood that no such action of any Underwriters shall be
deemed to be an action of EdLinc, the Transferor, the Transferor II or SLFC.
(m) [Reserved]
(n) Deposits required by the Indenture into the Acquisition Fund, the
Alternative Loan Guarantee Fund and the Reserve Fund shall be made on the
Closing Date.
(o) Other than pursuant to your consent and as permitted by the
Securities Act and the Rules and Regulations, EdLinc, SLFC, the Transferor and
the Transferor II will not distribute any prospectus or other offering material
in connection with the offering of the Notes.
5. Indemnification and Contribution
--------------------------------
(a) SLFC agrees to indemnify and hold harmless the Underwriter and
each person, if any, who controls the Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement, the Prospectus, or in any amendment or supplement thereto, or in any
application filed under the Blue Sky laws of any jurisdiction or other document
executed by EdLinc or SLFC for that purpose, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with the information relating to the
Underwriters furnished in writing to EdLinc by or on behalf of any Underwriter
through the Representative expressly for use in connection therewith. The
foregoing indemnity agreement shall be in addition to any liability which EdLinc
or SLFC may otherwise have.
(b) If any action, suit or proceeding shall be brought against an
Underwriter or any person controlling an Underwriter in respect of which
indemnity may be sought against SLFC, such Underwriter or such controlling
person, as the case may be, shall promptly notify the party against whom
indemnification is being sought (the "indemnifying parties"), and such
indemnifying parties shall assume the defense thereof, including the employment
of counsel and payment of all reasonable fees and expenses. The Underwriter or
any such controlling person, as the case may be, shall have the right to employ
separate counsel in any such action, suit or proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of the Underwriter or such controlling person unless (i) the
indemnifying parties have agreed in writing to pay such fees and expenses, (ii)
the indemnifying parties have failed to assume the defense and employ counsel,
or (iii) the named parties to any such action, suit or proceeding (including any
impleaded parties) include both the Underwriter or such controlling person and
the indemnifying parties and the Underwriter or such controlling person shall
have been advised by its counsel that representation of such indemnified party
and any indemnifying party by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been
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Underwriting Agreement dated February 10, 2004
proposed) due to actual or potential differing interests between them (in which
case the indemnifying party shall not have the right to assume the defense of
such action, suit or proceeding on behalf of the Underwriter or such controlling
person). It is understood, however, that the indemnifying parties shall, in
connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for the Underwriter and
controlling persons not having actual or potential differing interests with the
Underwriter or among themselves, which firm shall be designated in writing by
the Underwriter, and that all such fees and expense shall be reimbursed on a
monthly basis. The indemnifying parties shall not be liable for any settlement
of any such action, suit or proceeding effected without their written consent,
but if settled with such written consent, or if there be a final judgment for
the plaintiff in any such action, suit or proceeding, the indemnifying parties
agree to indemnify and hold harmless the Underwriter and any such controlling
person from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment to the extent provided in paragraph (a).
(c) The Underwriters agree, jointly and severally, to indemnify and
hold harmless EdLinc and SLFC and their respective directors and officers, and
any person who controls EdLinc or SLFC within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity from SLFC to the Underwriters set forth in paragraph (a) hereof, but
only with respect to information relating to the Underwriters furnished in
writing by or on behalf of the Underwriters through the Representative expressly
for use under the caption "Plan of Distribution" in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or "Blue Sky" applications. If any action, suit or
proceeding shall be brought against EdLinc or SLFC, any of their respective
directors or officers, or any such controlling person based on the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus and in respect of which indemnity may be sought
against the Underwriters pursuant to this paragraph (c), the Underwriters shall
have the rights and duties given to SLFC by paragraph (b) above (except that if
SLFC shall have assumed the defense thereof, the Underwriters shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
Underwriters' expense), and EdLinc and SLFC, their respective directors and
officers, and any such controlling person shall have the rights and duties given
to the Underwriters by paragraph (b) above. The foregoing indemnity agreement
shall be in addition to any liability which the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by EdLinc
and SLFC on the one hand and the Underwriters on the other hand from the
offering of the Notes, or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of
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Underwriting Agreement dated February 10, 2004
EdLinc and SLFC on the one hand and the Underwriters on the other in connection
with the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by EdLinc and SLFC on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes (before deducting expenses)
received by EdLinc and SLFC bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault of EdLinc and SLFC
on the one hand and the Underwriters on the other hand shall be 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 EdLinc or SLFC on the one hand or by the
Underwriters on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(e) EdLinc, SLFC and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 5 were determined by a
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 5, the Underwriters
shall not be required to contribute any amount in excess of the amount received
by the Underwriters over the price paid by the Underwriters for the Notes
purchased by them and distributed to the public less the amount of any damages
which the Underwriters have 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 Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 5 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 5 and the
representations and warranties of EdLinc, SLFC, the Transferor, the Transferor
II and the Underwriters set forth in this Agreement shall remain operative and
in full force and effect, regardless of (i) any investigation made by or on
behalf of the Underwriters, EdLinc, SLFC, the Transferor or the Transferor II or
any person controlling any of them or their respective directors or officers,
(ii) acceptance of any Notes and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to the Underwriters, EdLinc or SLFC
or any person controlling any of them or their respective directors or officers,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 5.
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Underwriting Agreement dated February 10, 2004
6. Conditions of the Underwriters' Obligations
-------------------------------------------
The obligations of the Underwriters to purchase the Notes hereunder
are subject to the following conditions:
(a) All actions required to be taken and all filings required to be
made by EdLinc, SLFC, the Transferor or the Transferor II under the Securities
Act and the Trust Indenture Act prior to the sale of the Notes shall have been
duly taken or made. At and prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement or the sale of the Notes or the
qualification of the Indenture shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of EdLinc, SLFC,
the Transferor, the Transferor II or the Underwriters, shall be contemplated by
the Commission or any Blue Sky Authorities.
(b) Any requests to the Commission for inclusion of additional or
supplemental information in the Registration Statement or the Prospectus shall
have been complied with by EdLinc, SLFC, the Transferor and the Transferor II to
your reasonable satisfaction.
(c) Since the respective dates as of which information is given in
the Registration Statement (or any amendment or supplement thereto), except as
may otherwise be stated therein or contemplated thereby, there shall not have
occurred (i) any change, or any development involving a prospective change, in
or affecting the condition (financial or other) or net worth of EdLinc, SLFC,
the Transferor or the Transferor II not contemplated by the Registration
Statement, which in the opinion of the Representative, would materially
adversely affect the market for the Notes, or (ii) any event or development
which makes any statement made in the Registration Statement or Prospectus
untrue or which, in the opinion of EdLinc and its counsel, SLFC and its counsel,
the Transferor and its counsel, the Transferor II and its counsel or the
Underwriters and their counsel, requires the filing of any amendment to or
change in the Registration Statement or Prospectus in order to state a material
fact required by any law to be stated therein or necessary in order to make the
statements therein not misleading, if amending or supplementing the Registration
Statement or Prospectus to reflect such event or development would, in the
opinion of the Underwriters, materially adversely affect the market for the
Notes.
(d) At the time of the Closing, (i) the Notes, each of the Basic
Documents, EdLinc's Program Agreements, the Transferor's Program Agreements, the
Transferor II's Program Agreements, SLFC's Program Agreements, the Investment
Agreement, the Trustee's Program Agreements, the Transferor's Trustee's Program
Agreements, the Transferor II's Trustee's Program Agreements and this Agreement
shall have been duly authorized, executed and delivered, and in full force and
effect, and, in the case of the Notes, authenticated; (ii) EdLinc's Authorizing
Resolutions, SLFC's Authorizing Resolutions, the Transferor's Authorizing
Resolutions and the Transferor II's Authorizing Resolutions shall have been duly
adopted by EdLinc, SLFC, the Transferor and the Transferor II, as applicable,
and shall be in full force and effect; (iii) the contracts between the United
States Secretary of Education and each of the Guarantee Agencies shall be duly
authorized, executed and delivered and in full force and effect; (iv) the
documents referred to in clauses (i) through (iii) above shall be in forms
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Underwriting Agreement dated February 10, 2004
satisfactory to the Representative and shall not have been amended, modified or
supplemented from the respective forms heretofore delivered to the
Representative, except as may have been agreed to in writing by the
Representative, and EdLinc, SLFC, the Transferor and the Transferor II shall
have duly adopted and there shall be in full force and effect such additional
resolutions and agreements, as shall, in the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
Minneapolis, Minnesota, be necessary in connection with the transactions
contemplated hereby; and (v) EdLinc, SLFC, the Transferor, the Transferor II,
the Trustee, the Auction Agent, the Broker-Dealers, the Investment Agreement
Provider, the Transferor's Trustee, the Transferor II's Trustee, the EdLinc 1998
Indenture Trustee, the Edlinc 1999 Indenture Trustee, EASCI, GLELSI and the
Guarantee Agencies shall perform or have performed all their respective
obligations required under or specified in this Agreement, the Basic Documents,
the Investment Agreement, EdLinc's Authorizing Resolutions, SLFC's Authorizing
Resolutions, the Transferor's Authorizing Resolutions, the Transferor II's
Authorizing Resolutions, EdLinc's Program Agreements, the Transferor's Program
Agreements, the Transferor II's Program Agreements, SLFC's Program Agreements
and the Trustee's Program Agreements, to be performed simultaneously with or
prior to Closing.
(e) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇ & Whitney LLP, Special Counsel to EdLinc, the Transferor and
the Transferor II, dated the Closing Date and addressed to the Underwriters, in
form and scope satisfactory to the Representative and its counsel.
(f) The Underwriters shall have received on the Closing Date the
approving opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated the Closing Date and in form
and scope satisfactory to the Representative and its counsel, and a letter
addressed to the Underwriters to the effect that the Underwriters may rely on
such opinion and consenting to the references to it in the Prospectus.
(g) The Underwriter shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, counsel for EdLinc and SLFC, dated the Closing Date
and addressed to the Underwriter, in form and scope satisfactory to the
Underwriter and its counsel.
(h) The Underwriters shall have received on the Closing Date an
opinion of Davenport, Evans, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Trustee, the
EdLinc 1998 Indenture Trustee, the Edlinc 1999 Indenture Trustee, the
Transferor's Trustee and the Transferor II's Trustee, dated the Closing Date and
addressed to the Underwriters, in form and scope satisfactory to the
Representative and its counsel.
(i) [Reserved]
(j) The Underwriters shall have received on the Closing Date opinions
of counsel for the Investment Agreement Providers, dated the Closing Date and
addressed to the Underwriters, in form and scope satisfactory to the
Representative and its counsel.
(k) The Underwriter shall have received on the Closing Date opinions
of counsel for such Guarantee Agencies, if any, specified by the Representative,
each dated the
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Underwriting Agreement dated February 10, 2004
Closing Date and addressed to the Underwriters, in form and scope
satisfactory to the Representative and its counsel.
(l) The Underwriters shall have received on the Closing Date an
opinion or opinions of ▇▇▇▇▇ & Lardner, counsel for the Underwriters, dated the
Closing Date, and addressed to the Underwriters, in form and scope satisfactory
to the Representative.
(m) The Underwriters shall have received on the Closing Date from
▇▇▇▇ ▇▇▇▇▇▇ LLP, certified public accountants, a comfort letter dated the
Closing Date, and in form and substance satisfactory to the Representative, to
the effect that they have carried out certain specified procedures, not
constituting an audit, with respect to certain financial information pertaining
to EdLinc and to the Financed Student Loans and setting forth the results of
such specified procedures.
(n) All the representations and warranties of EdLinc, SLFC, the
Transferor and the Transferor II contained in this Agreement, EdLinc's Program
Agreements, the Transferor's Program Agreements, the Transferor II's Program
Agreements, SLFC's Program Agreements and the Basic Documents shall be true and
correct in all material respects on and as of the date hereof and on and as of
the Closing Date as if made on and as of the Closing Date.
(o) EdLinc, SLFC, the Transferor and the Transferor II each shall
have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(p) The Underwriters shall have received by instrument dated the
Closing Date (at the option of the Representative), in addition to the opinions
referred to in clauses (d) through (k) of this Section 6, the right to rely on
opinions provided by such counsel and all other counsel under the terms of the
Basic Documents or to ▇▇▇▇▇'▇ and Fitch.
(q) The Underwriters shall have received evidence satisfactory to
them that ▇▇▇▇▇'▇ and Fitch have rated (i) the Series 2004-1 Senior Notes "Aaa"
and "AAA", respectively, and (ii) the Series 2004-1 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, "▇▇" and
"A", respectively, and there has not been any announcement by ▇▇▇▇▇'▇ or Fitch
that (Y) it is downgrading any of its ratings assigned to the Notes or (Z) it is
reviewing its ratings assigned to the Notes with a view to possible downgrading,
or with negative implications, or direction not determined.
(r) The Underwriters shall have received a certificate of the
President of EdLinc, SLFC, the Transferor and the Transferor II, as applicable,
affirming the matters specified in Sections 6(n) through (q) and such other
matters as the Representative may reasonably request.
(s) The Underwriters shall have received (i) a certificate or
certificates from the Secretary or Assistant Secretary of each of EdLinc, SLFC,
the Transferor and the Transferor II certifying and attaching copies of (A)
organizational documents, (B) resolutions authorizing this Agreement, the Basic
Documents, the Investment Agreement, EdLinc's Program Agreements, the
Transferor's Program Agreements, the Transferor II's Program Agreements, SLFC's
Program Agreements and the transactions contemplated hereby and thereby, (C) all
written communications, and any memoranda relating to conversations between such
entity, its
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Underwriting Agreement dated February 10, 2004
officers and employees or, to its knowledge, its counsel, accountants or other
representatives, on the one hand, and the Commission or its staff, on the other
hand, relating to the Registration Statement and certifying the incumbency and
signature of the officers executing this Agreement, the Basic Documents,
EdLinc's Program Agreements, the Transferor's Program Agreements, the Transferor
II's Program Agreements and SLFC's Program Agreements; and (ii) certificates of
legal existence and good standing with respect to SLFC from the Secretary of
State of the State of South Dakota and with respect to EdLinc, the Transferor
and the Transferor II from the Secretary of State of the State of Delaware,
dated as of the Closing Date or such earlier date within two weeks of the
Closing Date.
(t) The Underwriters shall have received a certificate of the
Trustee, signed by an officer of the Trustee, dated the Closing Date, (i) to the
effect that the Trustee received each of the items enumerated in Section 3.2 of
the Indenture; (ii) containing permission to include the information concerning
the Trustee in the Prospectus and to use the Basic Documents, the Investment
Agreement and the Trustee's Program Agreements in connection with the public
offering of the Notes; (iii) representing that (A) the Basic Documents to which
the Trustee is a party, the Investment Agreement and the Trustee's Program
Agreements, have been duly authorized, executed and delivered on behalf of the
Trustee and are in full force and effect, (B) such agreements may be used in
connection with the public offering of the Notes, (C) the Trustee is an
"eligible lender" under the Higher Education Act of 1965, as amended, (D) no
litigation is pending or, to his or her knowledge, threatened in any court to
restrain or enjoin the issuance or delivery of any of the Notes, or the
collection of revenues pledged or to be pledged to pay the principal of, and
interest on, the Notes, or in any way contesting or affecting the validity or
enforceability of the Notes, the Basic Documents, the Investment Agreement, the
Trustee's Program Agreements or the Underwriting Agreement or the collection of
said revenues or the pledge thereof, (E) there is no litigation pending or to
his or her knowledge threatened against the Trustee, or involving any of the
property or assets under the control of the Trustee, which involves the
possibility of any judgment or liability which may materially adversely affect
the security for the Notes or the collection of revenues pledged or to be
pledged to pay the principal of, and interest on, the Notes or materially
adversely affect the Trustee or the Program (but in lieu of such certificate the
Representative may in its sole discretion accept an opinion of the Trustee's
counsel as to the matters referred to above, acceptable to the Representative in
form and substance, that in their opinion the issues raised in any such pending
or threatened litigation are without substance or that the contentions of the
plaintiffs therein are without merit), and (F) he or she has carefully examined
the Prospectus with respect to references to the Trustee and that, in his or her
opinion, with respect to references to the Trustee, as of the date of the
Prospectus and at all times subsequent through and including the Closing Date,
the Prospectus did not and does not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(u) The Underwriters shall have received certified copies of the
Basic Documents, EdLinc's Authorizing Resolutions, SLFC's Authorizing
Resolutions, the Transferor's Authorizing Resolutions, the Transferor II's
Authorizing Resolutions, EdLinc's Program Agreements, the Transferor's Program
Agreements, the Transferor II's Program Agreements, SLFC's Program Agreements,
in each case certified as of the Closing Date by each
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Underwriting Agreement dated February 10, 2004
corporation's respective corporate Secretary to be a true and correct copy
thereof and in full force and effect.
(v) The Underwriters shall have received certified copies of the
Trustee's Program Agreements and the Investment Agreement, in each case
certified as of the Closing Date by a duly authorized officer of the Trustee to
be a true and correct copy thereof and in full force and effect, and certified
copies of the Broker-Dealer Agreements, in each case certified as of the Closing
Date by a duly authorized officer of the respective the Broker-Dealers to be a
true and correct copy thereof and in full force and effect.
(w) The Underwriters shall have received certificates of the
Transferor's Trustee, the Transferor II's Trustee, the Edlinc 1999 Indenture
Trustee, and the EdLinc 1998 Indenture Trustee, signed by an officer of each
such trustee, dated the Closing Date, (i) containing permission to include the
information concerning the Transferor's Trustee, the Transferor II's Trustee,
the Edlinc 1999 Indenture Trustee, and the EdLinc , Indenture Trustee, as
applicable, in the Prospectus and to use the Transferor's Trustee's Program
Agreements, the Transferor II's Trustee's Program Agreements, the Edlinc 1999
Indenture Trustee's Program Agreements, and the EdLinc 1998 Indenture Trustee's
Program Agreements, as applicable, in connection with the public offering of the
Notes; (ii) representing that (A) the Transferor's Trustee's Program Agreements,
the Transferor II's Trustee's Program Agreements, the Edlinc 1999 Indenture
Trustee's Program Agreements, and the EdLinc 1998 Indenture Trustee's Program
Agreements have been duly authorized, executed and delivered on behalf of the
Transferor's Trustee, the Transferor II's Trustee, the Edlinc 1999 Indenture
Trustee, and the EdLinc 1998 Indenture Trustee, as applicable, and each is in
full force and effect, (B) such agreements may be used in connection with the
public offering of the Notes, (C) the Transferor's Trustee, the Transferor II's
Trustee, the Edlinc 1999 Indenture Trustee, and the EdLinc 1998 Indenture
Trustee is an "eligible lender" under the Higher Education Act of 1965, as
amended, (D) no litigation is pending or, to his or her knowledge, threatened in
any court in any way contesting or affecting the validity or enforceability of
the Transferor's Trustee's Program Agreements, the Transferor II's Trustee's
Program Agreements, the Edlinc 1999 Indenture Trustee's Program Agreements, and
the EdLinc 1998 Indenture Trustee's Program Agreements, (E) there is no
litigation pending or to his or her knowledge threatened against the
Transferor's Trustee, the Transferor II's Trustee, the Edlinc 1999 Indenture
Trustee, or the EdLinc 1998 Indenture Trustee, or involving any of the property
or assets under the control of the Transferor's Trustee, the Transferor II's
Trustee, the Edlinc 1999 Indenture Trustee, or the EdLinc 1998 Indenture
Trustee, which involves the possibility of any judgment or liability which may
materially adversely affect the security for the Notes or materially adversely
affect the Transferor's Trustee, the Transferor II's Trustee, the Edlinc 1999
Indenture Trustee, or the EdLinc 1998 Indenture Trustee or the Program (but in
lieu of such certificate the Representative may in its sole discretion accept an
opinion of the Transferor's Trustee counsel, the Transferor II's Trustee
counsel, the Edlinc 1999 Indenture Trustee's counsel, or the EdLinc 1998
Indenture Trustee's counsel as to the matters referred to above, acceptable to
the Representative in form and substance, that in their opinion the issues
raised in any such pending or threatened litigation are without substance or
that the contentions of the plaintiffs therein are without merit), and (F) he or
she has carefully examined the Prospectus with respect to references to the
Transferor's Trustee, the Transferor II's Trustee, the Edlinc 1999 Indenture
Trustee, and the EdLinc 1998 Indenture Trustee, as applicable, and that, in his
or her opinion, with respect to references to the
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Underwriting Agreement dated February 10, 2004
Transferor's Trustee, the Transferor II's Trustee, the Edlinc 1999 Indenture
Trustee, and the EdLinc 1998 Indenture Trustee, as applicable, as of the date of
the Prospectus and at all times subsequent through and including the Closing
Date, the Prospectus did not and does not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(x) The Underwriters shall have received on the Closing Date
certificates of officers for such Guarantee Agencies and Sub-servicers, if any,
specified by the Representative, each dated the Closing Date, containing
permission to include the information concerning that entity in the Prospectus
and covering such other matters specified by the Representative, in form and
scope satisfactory to the Representative and its counsel.
(y) The Underwriters shall have received such additional
certificates, instruments and other documents as shall be requested by the
Representative, including, without limitation, from EdLinc, SLFC, the
Transferor, the Transferor II, the Trustee, the Transferor's Trustee, the
Transferor II's Trustee, the Edlinc 1999 Indenture Trustee, the EdLinc 1998
Indenture Trustee, Sub-Servicers, the Auction Agent, the Broker-Dealers, the
Investment Agreement Provider, and such Guarantee Agencies, if any, specified by
the Representative.
All opinions, certificates, letters and other documents referred in
this Section 6 will be in compliance with the provisions hereof only if they are
reasonably satisfactory in form and substance to the Representative and counsel
for the Underwriters.
Any certificate or document signed by any officer of EdLinc, SLFC, the
Transferor or the Transferor II and delivered to the Underwriters, or to counsel
for the Underwriters, shall be deemed a representation and warranty by EdLinc,
SLFC, the Transferor or the Transferor II, respectively, to the Underwriters as
to the statements made therein.
If these conditions are not satisfied, or if the obligations of the
Underwriters shall be terminated for any reason permitted by this Agreement,
this Agreement shall terminate and neither the Underwriters nor EdLinc, SLFC,
the Transferor or the Transferor II shall be under further obligation hereunder,
except that the respective obligations of EdLinc, the Transferor, the Transferor
II and SLFC and the Underwriters for the payment of expenses, as provided in
Section 7 hereof, shall continue in full force and effect.
7. Expenses
--------
EdLinc and SLFC, jointly and severally, agree to pay or to otherwise
cause the payment of the following costs and expenses and all other costs and
expenses incident to the performance by them, the Transferor and the Transferor
II of their respective obligations hereunder: (i) the preparation, printing or
reproduction and distribution of any Registration Statement, each Prospectus and
each amendment or supplement thereto and each other Basic Document, EdLinc's
Program Agreement, Transferor's Program Agreement, Transferor II's Program
Agreement, SLFC's Program Agreement, and Trustee's Program Agreement, and the
Investment Agreement; (ii) the preparation, printing, authentication, issuance
and delivery of definitive certificates for the Notes; (iii) the qualification
of the Indenture under the Trust
-20-
Underwriting Agreement dated February 10, 2004
Indenture Act; (iv) the fees and disbursements of (A) counsel and Special
Counsel for EdLinc, SLFC, the Transferor and the Transferor II, (B) the Trustee,
the Transferor's Trustee, the Transferor II's Trustee, the Edlinc 1999 Indenture
Trustee, the EdLinc 1998 Indenture Trustee and their respective counsel, (C) the
Auction Agent and its counsel, (D) any Guarantee Agencies and Sub-servicers and
their respective counsel, (E) the Investment Agreement Provider and its counsel,
(F) the Depository Trust Company in connection with the book-entry registration
of the Notes, (G) ▇▇▇▇ ▇▇▇▇▇▇ LLP, accountants for EdLinc, SLFC, the Transferor
and the Transferor II and issuer of the specified procedures letter referenced
in Section 6(m) hereof, and (H) counsel for the Underwriters as set forth in
Sections 1 and 2 hereof; (v) the fees charged by ▇▇▇▇▇'▇ and Fitch for rating
the Notes; (vi) the Blue Sky filing fees and expenses; and (vii) the cost of any
advertising expenses requested or undertaken by EdLinc, SLFC, the Transferor or
the Transferor II and incurred in connection with the public offering of the
Notes. The Underwriters shall be under no obligation to pay any expense incident
to the performance of the obligations of EdLinc, SLFC, the Transferor or the
Transferor II hereunder.
The Underwriters shall pay the expenses incurred by it in connection
with its public offering and distribution of the Notes (except as otherwise
provided in the preceding paragraph).
8. Nonpetition Covenant
--------------------
Each Underwriter covenants and agrees that it will not at any time
institute against EdLinc, the Transferor or the Transferor II, or join in any
institution against EdLinc, the Transferor or the Transferor II of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligation relating to this Agreement.
9. Effective Date of Agreement
---------------------------
This Agreement shall become effective upon the execution and delivery
hereof by all the parties hereto.
10. Representations, Warranties and Agreements to Survive Delivery
--------------------------------------------------------------
All representations, warranties and agreements contained in the
Agreement or contained in certificates of officers of EdLinc, SFLC, the
Transferor or the Transferor II submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of the Underwriters or any officer, director, or controlling person
of the Underwriters, or by or on behalf of EdLinc, SFLC, the Transferor or the
Transferor II, and shall survive delivery of the Notes to the Underwriters. The
expense payment provisions set forth in Sections 4(j) and 7 hereof and the
indemnification and contribution provisions in Section 5 hereof also shall
survive delivery of the Notes to the Underwriters and any termination or
cancellation of this Agreement.
11. Termination of Agreement
------------------------
This Agreement shall be subject to termination in the absolute
discretion of the Representative, without liability on the part of the
Underwriters to EdLinc, SLFC, the Transferor
-21-
Underwriting Agreement dated February 10, 2004
or the Transferor II, by notice to EdLinc, SLFC, the Transferor and the
Transferor II, if on or prior to the Closing Date (i) trading in securities
generally on the New York Stock Exchange, American Stock Exchange or the Nasdaq
National Market shall have been suspended or materially limited; (ii) a general
moratorium on commercial banking activities in New York, Delaware or South
Dakota shall have been declared by either federal or state authorities; (iii)
there shall have occurred any outbreak or escalation of hostilities or other
international or domestic calamity, crisis or change in political, financial or
economic conditions, including any act of terrorism, the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representative, impracticable or inadvisable to commence or continue the
offering of the Notes on the terms set forth in the Prospectus or to enforce
contracts for the resale of the Notes by the Underwriters; (iv) legislation
shall be introduced in or enacted by the Congress of the United States or
adopted by either the House of Representatives or the Senate or approved by a
Committee thereof, or a decision by a court of the United States or the Tax
Court of the United States shall be rendered, or a ruling, regulation, proposed
regulation or official statement by or on behalf of the Treasury Department of
the United States, the Internal Revenue Service or any other governmental agency
shall be made, an announcement by a member of Congress shall be made relating to
legislation which has been introduced or which is proposed to be introduced, or
any other event shall occur, with respect to federal taxation upon revenues or
other income of the general character expected to be pledged under the Indenture
or upon interest received on securities of the general character of the Notes,
or which would have the effect of changing, directly or indirectly, the federal
income tax consequences of interest on securities of the general character of
the Notes in the hands of the holders thereof, which in the opinion of the
Representative materially and adversely affects the market price of the Notes;
(v) legislation shall be enacted by the States of South Dakota or Delaware, or a
decision by a court of competent jurisdiction of the States of South Dakota or
Delaware or any administrative tribunal of the States of South Dakota or
Delaware or other governmental agency or department thereof shall be rendered
with respect to taxation by the States of South Dakota or Delaware or any of
their respective political subdivisions upon revenues or other income of the
general character expected to be pledged under the Indenture or upon interest
received on securities of the general character of the Notes, or which would
have the effect the changing, directly or indirectly, the tax consequences under
the States of South Dakota or Delaware tax laws of interest on securities of the
general character of the Notes in the hands of the holders thereof, which in the
opinion of the Representative materially affects the market price of the Notes;
(vi) additional material restrictions not in force as of the date hereof shall
have been imposed upon trading in securities of the general character of the
Notes by any governmental authority or by any national securities exchange;
(vii) a default shall have occurred in the payment of principal or interest on
outstanding obligations of EdLinc, SLFC, the Transferor or the Transferor II,
the State of South Dakota, or any agency or authority thereof, which in the
opinion of the Representative materially and adversely affects the market for
the Notes; or (vii) any rating of the Notes shall have been changed or withdrawn
by ▇▇▇▇▇'▇ or Fitch, or ▇▇▇▇▇'▇ or Fitch shall have announced that it is
considering a change or withdrawal of such rating and such action, in the
opinion of the Representative, shall materially and adversely affect the market
for the Notes. Notice of such termination may be given to EdLinc, SLFC, the
Transferor and the Transferor II, by telegram, telecopy or telephone and shall
be subsequently confirmed by letter.
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Underwriting Agreement dated February 10, 2004
12. Information Furnished by the Underwriters
-----------------------------------------
The statements set forth under the heading "Underwriting" in the
Prospectus Supplement dated February 3, 2004 (the "Prospectus Supplement")
constitute the only information furnished by or on behalf of the Underwriters as
such information is referred to in Sections 3(b) and 5 hereof, and each
Underwriter confirms that such statements relating to such Underwriter are
correct.
13. Miscellaneous
-------------
Except as otherwise provided in Sections 4 and 11 hereof, notice given
pursuant to any provision of this Agreement shall be in writing and shall be
delivered (i) if to EdLinc, SLFC, the Transferor or the Transferor II, at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇, (ii) if to the Underwriters, to RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇.
This Agreement has been and is made solely for the benefit of, and
shall be binding upon, the Underwriters, the Transferor, the Transferor II,
SLFC, EdLinc, their respective directors, officers, trustees and controlling
persons referred to in Section 5 hereof and their respective successors and
assigns, to the extent provided herein, and no other person shall acquire or
have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from the Underwriters of any of the Notes in his
status as such purchaser.
14. Applicable Law; Counterparts; Headings
--------------------------------------
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to be
performed within the State of New York without giving effect to the choice of
laws or conflict of laws principles thereof.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof or
thereof shall have been executed and delivered on behalf of each party hereto.
The headings of the Sections of this Agreement are inserted for
convenience only and shall not be deemed to be part hereof.
[The remainder of this page is intentionally left blank.]
-23-
Underwriting Agreement dated February 10, 2004
Please confirm that the foregoing correctly sets forth the agreement
among EdLinc, SLFC, the Transferor, the Transferor II and the Underwriters.
Very truly yours,
EDUCATION LOANS INCORPORATED
("EdLinc")
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
STUDENT LOAN FINANCE CORPORATION
("SLFC")
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
GOAL FUNDING, INC.
(the "Transferor")
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
GOAL FUNDING II, INC.
(the "Transferor II")
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
Confirmed as of the date first above
mentioned.
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
-24-
Underwriting Agreement dated February 10, 2004
APPENDIX A
----------
Initial
Aggregate Initial
Principal Underwriting Interest
Series Amount Maturity Date Purchase Price Discount Rate
-------- -------------- ---------------- -------------- ------------ --------
2004-A1 $ 83,900,000 December 1, 2036 99.61% 0.39% 1.13%
2004-A2 83,900,000 December 1, 2036 99.61 0.39 1.14
2004-A3 83,900,000 December 1, 2036 99.61 0.39 1.14
2004-A4 83,900,000 December 1, 2036 99.61 0.39 1.15
2004-A5 83,900,000 December 1, 2036 99.61 0.39 1.15
2004-B1 42,500,000 December 1, 2036 99.61 0.39 1.35
--------------
Total $ 462,000,000 $ 460,198,200 $ 1,801,800
-25-
Underwriting Agreement dated February 10, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇
----------
CERTAIN DEFINITIONS
Capitalized terms used but not defined in this Appendix B or elsewhere
in this Agreement have the respective meanings ascribed thereto in the
Supplemental Indenture.
"Bailment Agreements" means the SLFC Bailment Agreement, the EASCI
Bailment Agreement, the U.S. Bank Bailment Agreement and the GLELSI Bailment
Agreement.
"Basic Documents" means the Indenture, the Supplemental Indenture, the
Transfer Agreements, the Auction Agent Agreement, the Broker-Dealer Agreements,
the Servicing Agreement, the Bailment Agreements, the Joint Sharing Agreement
and the Letter of Representations.
"EASCI" means Educational Assistance Service Company, Inc., a South
Dakota corporation and a wholly owned subsidiary of Education Assistance
Corporation, a South Dakota nonprofit corporation.
"EASCI Bailment Agreement" means the Bailment Agreement, dated as of
February 1, 2004, among EASCI, the Trustee and Edlinc.
"EASCI Sub-servicing Agreement" means the Agreement, dated as of
December 31, 2001, between EASCI and SLFC, as amended.
"EdLinc's Authorizing Resolutions" means the Resolutions of EdLinc's
board of directors, adopting, accepting, ratifying and approving:
1. the Basic Documents;
2. this Agreement and the Prospectus;
3. one or more investment agreements (individually and collectively
the "Investment Agreement") between the Trustee and one or more
parties meeting the requirements of the Indenture (individually
and collectively the "Investment Agreement Provider");
4. the Transferor's Student Loan Purchase Agreements;
5. the Transferor II's Student Loan Purchase Agreements; and
6. EdLinc's Program Agreements.
"EdLinc ▇▇▇▇ ▇▇▇▇▇▇▇▇▇" means the Indenture of Trust, dated as of
February 1, 1998, between EdLinc and the EdLinc 1998 Indenture Trustee, as
amended and supplemented.
"EdLinc 1998 Indenture Trustee" means U.S. Bank National Association,
as trustee under the EdLinc 1998 Indenture.
-26-
Underwriting Agreement dated February 10, 2004
"EdLinc 1998 Indenture Trustee Joint Sharing Agreement" means the
Joint Sharing Agreement, dated as of February 1, 2004, among EdLinc, the Trustee
and the EdLinc 1998 Indenture Trustee.
"EdLinc 1998 Indenture Trustee's Program Agreements" means the EdLinc
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the EdLinc 1998 Indenture Trustee Joint Sharing Agreement.
"EdLinc's Program Agreements" means the Bailment Agreements, the Joint
Sharing Agreements, the Servicing Agreement, the Edlinc 1999 Indenture, the
EdLinc 1998 Indenture and the EdLinc Student Loan Purchase Agreements.
"EdLinc's Student Loan Purchase Agreements" means the Student Loan
Purchase Agreements between EdLinc and the eligible lenders described in Exhibit
H-1 to the Supplemental Indenture and the forms of Student Loan Purchase
Agreements.
"EdLinc 1999 Indenture" means the Indenture of Trust, dated as of
December 1, 1999, between EdLinc and the EdLinc 1999 Indenture Trustee, as
amended and supplemented.
"EdLinc 1999 Indenture Trustee" means U.S. Bank National Association,
as trustee under the EdLinc 1999 Indenture.
"EdLinc 1999 Indenture Trustee Joint Sharing Agreement" means the
Joint Sharing Agreement, dated as of February 1, 2004, among EdLinc, the Trustee
and the EdLinc 1999 Indenture Trustee.
"EdLinc 1999 Indenture Trustee's Program Agreements" means the EdLinc
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the EdLinc 1999 Indenture Trustee Joint Sharing Agreement.
"GLHESC" means Great Lakes Higher Education Services Corporation, a
Wisconsin nonprofit corporation.
"GLELSI" means Great Lakes Educational Loan Services, Inc., a
Wisconsin corporation and a wholly owned subsidiary of GLHESC.
"GLELSI Bailment Agreement" means the Bailment Agreement, dated as of
February 1, 2004, among GLELSI, the Trustee and Edlinc.
"GLELSI Sub-servicing Agreement" means the Student Loan Origination
and Servicing Agreement, dated as of November 20, 1998, between GLELSI and SLFC,
as amended.
"Goal Funding Indenture" means the Indenture, dated as of November 26,
2002, among the Transferor's Trustee, the Transferor, certain financial
institutions identified therein, as lenders, Citicorp North America, Inc., as
the agent, Ambac Assurance Corporation, as the insurer, and SLFC, as the master
servicer, as amended and supplemented.
"Goal Funding II Indenture" means the Indenture, dated as of January
30, 2003, among the Transferor II's Trustee, the Transferor II, certain
financial institutions identified
-27-
Underwriting Agreement dated February 10, 2004
therein, as lenders, Citicorp North America, Inc., as the agent, and SLFC, as
the master servicer, as amended and supplemented.
"Joint Sharing Agreement" means, collectively, the Edlinc 1999
Indenture Trustee Joint Sharing Agreement, the EdLinc 1998 Indenture Trustee
Joint Sharing Agreement, the Transferor's Trustee Joint Sharing Agreement, and
the Transferor II's Trustee Joint Sharing Agreement.
"Letter of Representations" means the Blanket Issuer Letter of
Representations, dated as of September 12, 2002, from EdLinc to The Depository
Trust Company ("DTC"), containing certain representations to induce DTC to
accept the Notes for deposit.
"Loan Purchase Contracts" means, individually and collectively,
EdLinc's Student Loan Purchase Agreements, the Transferor's Student Loan
Purchase Agreements and the Transferor II's Student Loan Purchase Agreements.
"Servicing Agreement" means the Servicing and Administration
Agreement, dated as of February 1, 2004, among EdLinc, SLFC and the Trustee.
"SLFC's Authorizing Resolutions" means the Resolutions of the SLFC's
board of directors, adopting, accepting, ratifying and approving:
1. the Basic Documents, this Agreement and the Prospectus;
2. SLFC's Program Agreements; and,
3. EdLinc's Program Agreements.
"SLFC Bailment Agreement" means the Bailment Agreement, dated as of
February 1, 2004, among SLFC, the Trustee and Edlinc.
"SLFC's Program Agreements" means the Servicing Agreement, SLFC's
Student Loan Purchase Agreements, the Sub-servicing Agreements and the SLFC
Bailment Agreement.
"SLFC's Student Loan Purchase Agreements" means the Alternative Loan
Purchase Agreement, the Goal Funding Warehouse Alternative Loan Purchase
Agreement, and the GOAL Funding II Warehouse Alternative Loan Purchase
Agreement, in each case as such term is defined in SLFC's Authorizing
Resolution.
"Sub-servicers" means EASCI and GLELSI.
"Sub-servicing Agreements" means the EASCI Sub-servicing Agreement and
the GLELSI Sub-Servicing Agreement.
"Transfer Agreements" mean the Series 2004-1 Transfer Agreements.
"Transferor's Authorizing Resolutions" means the Resolutions of the
Transferor's board of directors, adopting, accepting, ratifying and approving:
-28-
Underwriting Agreement dated February 10, 2004
1. this Agreement and the Prospectus; and,
2. the Transferor's Program Agreements.
"Transferor's Program Agreements" means the Transferor's Transfer
Agreement, the Goal Funding Indenture, the Transferor's Trustee Joint Sharing
Agreement and the Transferor's Student Loan Purchase Agreements.
"Transferor's Student Loan Purchase Agreements" means the Student Loan
Purchase Agreements between the Transferor and the eligible lenders described in
Exhibit H-2 to the Supplemental Indenture.
"Transferor's Transfer Agreement" means the Transfer Agreement to
which the Transferor and the Transferor's Trustee are parties.
"Transferor's Trustee Joint Sharing Agreement" means the Joint Sharing
Agreement, dated as of February 1, 2004, among EdLinc, the Transferor, the
Trustee and the Transferor's Trustee.
"Transferor's Trustee" means U.S. Bank National Association, as
trustee under the Goal Funding Indenture.
"Transferor's Trustee's Program Agreements" means the Goal Funding
Indenture, the Transferor's Transfer Agreement and the Transferor's Trustee
Joint Sharing Agreement.
"Transferor II's Authorizing Resolutions" means the Resolutions of the
Transferor II's board of directors, adopting, accepting, ratifying and
approving:
1. this Agreement and the Prospectus; and,
2. the Transferor II's Program Agreements.
"Transferor II's Program Agreements" means the Transferor II's
Transfer Agreement, the Goal Funding II Indenture, the Transferor II's Trustee
Joint Sharing Agreement and the Transferor II's Student Loan Purchase
Agreements.
"Transferor II's Student Loan Purchase Agreements" means the Student
Loan Purchase Agreements between the Transferor II and the eligible lenders
described in Exhibit H-3 to the Supplemental Indenture.
"Transferor II's Transfer Agreement" means the Transfer Agreement to
which the Transferor II and the Transferor II's Trustee are parties.
"Transferor II's Trustee Joint Sharing Agreement" means the Joint
Sharing Agreement, dated as of February 1, 2004, among EdLinc, the Transferor
II, the Trustee and the Transferor II's Trustee.
-29-
Underwriting Agreement dated February 10, 2004
"Transferor II's Trustee" means U.S. Bank National Association, as
trustee under the Goal Funding II Indenture.
"Transferor II's Trustee's Program Agreements" means the Goal Funding
II Indenture, the Transferor II's Transfer Agreement and the Transferor II's
Trustee Joint Sharing Agreement.
"Trustee's Program Agreements" means the Guarantee Agreements.
"U.S. Bank Bailment Agreement" means the Bailment Agreement, dated as
of February 1, 2004, among U.S. Bank National Association, the Trustee and
Edlinc.
-30-