EXHIBIT 1.1
SLC Student Loan Trust 2006-2
$2,569,000,000
Student Loan Asset-Backed Notes
UNDERWRITING AGREEMENT
September 13, 2006
Citigroup Global Markets Inc.,
as representative of the Underwriters
listed on Schedule A hereto
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
SLC Student Loan Trust 2006-2, a Delaware statutory trust (the "Company"),
proposes to sell to Citigroup Global Markets Inc. (the "Representative") and the
other underwriters listed on Schedule A hereto (collectively with the
Representative, the "Underwriters"), pursuant to the terms of this Underwriting
Agreement (this "Agreement"), $2,569,000,000 aggregate principal amount of its
Student Loan Asset-Backed Notes (the "Notes") in the classes and initial
principal amounts set forth on Schedule A hereto. Citibank, N.A., a national
banking association, will act as eligible lender trustee (in such capacity, the
"Eligible Lender Trustee") on behalf of the Company. The Notes will be issued
under an Indenture, to be dated as of September 19, 2006 (the "Indenture"),
among the Company, the Eligible Lender Trustee, U.S. Bank National Association,
as indenture trustee (the "Indenture Trustee"), and Citibank, N.A., as indenture
administrator (in such capacity, the "Indenture Administrator"). Upon issuance,
the Notes will be secured by, among other things, Trust Student Loans (as
defined in the Indenture) pledged to the Indenture Trustee and described in the
Prospectus (as defined in Section 3 below). The Trust Student Loans will be
serviced by The Student Loan Corporation, a Delaware corporation ("SLC"),
pursuant to a Servicing Agreement, to be dated as of September 19, 2006 (the
"Servicing Agreement"), between SLC, as Servicer and Administrator, and the
Company. SLC will enter into a Subservicing Agreement with Citibank USA,
National Association, a national banking association (the "Sub-Servicer"), to be
dated as of September 19, 2006 (the "Subservicing Agreement"), pursuant to which
the Sub-Servicer will act as subservicer with respect to the Trust Student
Loans.
This Agreement, the Master Terms Purchase Agreement, to be dated as of
September 19, 2006 (along with the related Purchase Agreement, the "SLC Sale
Agreement"), among SLC, SLC Student Loan Receivables I, Inc. ("SLC Receivables")
and the Eligible Lender Trustee, the Master Terms Sale Agreement, to be dated as
of September 19, 2006 (along with the related Sale Agreement, the "SLC
Receivables Sale Agreement" and, collectively with the SLC Sale Agreement, the
"Sale Agreements"), among SLC Receivables, the Company and the Eligible
Lender Trustee, the Short-Form Trust Agreement, dated as of August 16, 2006,
between Wilmington Trust Company, as owner trustee (the "Owner Trustee"), and
SLC Receivables, as depositor (in such capacity, the "Depositor"), as amended
and restated pursuant to the Amended and Restated Trust Agreement, to be dated
as of September 19, 2006 (the "Trust Agreement"), between the Owner Trustee and
the Depositor, the Administration Agreement, to be dated as of September 19,
2006 (the "Administration Agreement"), between SLC, as servicer and
administrator, and the Company, the Eligible Lender Trust Agreement, to be dated
as of September 19, 2006 (the "SLC Receivables Eligible Lender Trust
Agreement"), between SLC Receivables and the Eligible Lender Trustee, the
Eligible Lender Trust Agreement, to be dated as of September 19, 2006 (the
"Company Eligible Lender Trust Agreement" and, collectively with the SLC
Receivables Eligible Lender Trust Agreement, the "Eligible Lender Trust
Agreement"), between the Company and the Eligible Lender Trustee, the
Subadministration Agreement, to be dated as of September 19, 2006 (the
"Subadministration Agreement"), between SLC, as administrator, and CitiMortgage,
Inc., as sub-administrator (the "Sub-Administrator"), the Servicing Agreement,
the Subservicing Agreement, and the Indenture shall collectively hereinafter be
referred to as the "Basic Documents".
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Indenture or the Prospectus.
The Company proposes, upon the terms and conditions set forth herein, to
sell to each of the Underwriters on the Closing Date (as hereinafter defined)
the aggregate principal amount of each class of Notes set forth next to the name
of each Underwriter on Schedule A hereto.
The Company wishes to confirm as follows this Agreement with the
Underwriters in connection with the purchase and resale of the Notes.
1. Agreements to Sell, Purchase and Resell. (a) The Company hereby
agrees, subject to all the terms and conditions set forth herein, to sell to
each of the Underwriters and, upon the basis of the representations, warranties
and agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each of the Underwriters, severally and not
jointly, agrees to purchase from the Company, such principal amount of each
class of the Notes at such respective purchase prices as are set forth next to
the name of such Underwriter on Schedule A hereto.
(b) 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.
2. Delivery of the Notes and Payment Therefor. Delivery to the
Underwriters of and payment for the Notes shall be made at the office of
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, New York, New York, at 12:00 p.m., New York
time, on September 19, 2006 (the "Closing Date"). The place of such closing and
the Closing Date may be varied by agreement between the Representative and the
Company.
The Notes will be delivered to the Underwriters against payment of the
purchase price therefor to the Company in Federal Funds, by wire transfer to an
account at a bank acceptable to the Representative, or such other form of
payment as to which the parties may agree. Unless
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otherwise agreed to by the Company and the Representative, each class of Notes
will be evidenced by a single global security in definitive form deposited with
the Indenture Trustee as custodian for The Depository Trust Company ("DTC") and
will be registered in the name of Cede & Co. as nominee of DTC. The Notes to be
delivered to the Underwriters shall be made available to the Underwriters in New
York, New York, for inspection and packaging not later than 11:30 a.m., New York
City time, on the business day next preceding the Closing Date.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) A registration statement on Form S-3 (No. 333-133028)
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 "Act"), has been filed with
the Securities and Exchange Commission (the "SEC" or the
"Commission") and such registration statement, as amended, has
become effective; such registration statement, as amended, and the
prospectus relating to the sale of the Notes offered thereby
constituting a part thereof, as from time to time amended or
supplemented (including the base prospectus, any prospectus
supplement (the "Prospectus Supplement") (including static pool
information deemed excluded pursuant to Item 1105(d) of Regulation
AB) filed with the Commission pursuant to Rule 424(b) under the Act,
the information deemed to be a part thereof pursuant to Rule 430A(b)
under the Act, and the information incorporated by reference
therein) are respectively referred to herein as the "Registration
Statement," and the "Prospectus," respectively; and the conditions
to the use of a registration statement on Form S-3 under the Act, as
set forth in the General Instructions to Form S-3, and the
conditions of Rule 415 under the Act, have been satisfied with
respect to the Registration Statement;
(b) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all material
respects to the requirements of the Act, the rules and regulations
of the SEC (the "Rules and Regulations") and the Trust Indenture Act
of 1939, as amended, and the rules and regulations thereunder (the
"Trust Indenture Act"), and, except with respect to information
omitted pursuant to Rule 430A of the Act, did not include any untrue
statement of a material fact or, in the case of the Registration
Statement, omit to state any material fact necessary to make the
statements therein not misleading and, in the case of the
Prospectus, omit to state any 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, and on
the date of this Agreement, at the "time of sale" (within the
meaning of Rule 159 under the Act, the "Time of Sale") for the first
sale of the Notes by the Underwriters, which will occur on September
13, 2006, and on the Closing Date (i) the Registration Statement,
(ii) the Disclosure Package (as defined below) and (iii) the
Prospectus will conform in all material respects to the requirements
of the Act, the Rules and Regulations and the Trust Indenture Act,
and none of such documents included or will include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the foregoing does
not apply to statements in or omissions from
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the Registration Statement, the Prospectus or the Disclosure
Package, as applicable, based upon written information furnished to
the Company by the Underwriters, specifically for use therein. As
used in this Agreement, the term "Disclosure Package" means,
collectively, the initial free writing prospectus dated September 8,
2006 relating to the Notes (the "Initial FWP") (including the static
pool information deemed excluded pursuant to item 1105(d) of
Regulation AB), the base prospectus dated September 8, 2006 (the
"Base Prospectus") and the term sheet dated September 13, 2006 (the
"Term Sheet").
(c) The Notes are "asset backed securities" within the meaning
of, and satisfy the requirements for use of, Form S-3 under the Act,
as set forth in the General Instructions to Form S-3, and the
conditions of Rule 415 of the Act have been satisfied with respect
to the Registration Statement.
(d) The Commission has not issued and, to the best knowledge
of the Company, is not threatening to issue any order preventing or
suspending the use of the Registration Statement.
(e) 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 the
Company or its affiliates for the consummation of the transactions
contemplated by this Agreement shall have been obtained, except as
otherwise provided in the Basic Documents.
(f) The Indenture has been duly and validly authorized by the
Company and, upon its execution and delivery by the Company and
assuming due authorization, execution and delivery by the Indenture
Trustee, will be a valid and binding agreement of the Company,
enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other similar
laws affecting creditors' rights generally and the Indenture will
conform in all material respects to the description thereof in the
Prospectus and the Disclosure Package. The Indenture has been duly
qualified under the Trust Indenture Act with respect to the Notes.
(g) The Notes have been duly authorized by the Company and the
Notes to be issued on the Closing Date, when executed by the Company
and authenticated by the Indenture 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 binding
obligations of the Company 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, fraudulent conveyance or other similar laws relating to
or affecting creditors' rights generally and court decisions with
respect thereto, and the Notes will conform in all material respects
to the description thereof in the Prospectus and the Disclosure
Package.
(h) The Company is a statutory trust duly organized, validly
existing and in good standing under the laws of the State of
Delaware with full power and
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authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and the Disclosure
Package and as conducted on the date hereof, and is duly registered
and qualified to conduct its business and is in good standing in
each jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure so to register or qualify does not have a
material adverse effect on the condition (financial or other),
business, prospects, properties, net worth or results of operations
of the Company.
(i) Other than as contemplated by this Agreement or as
disclosed in the Prospectus and the Disclosure Package, there is no
broker, finder or other party that is entitled to receive from the
Company or any of its affiliates any brokerage or finder's fee or
other fee or commission as a result of any of the transactions
contemplated by this Agreement.
(j) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened or contemplated against
the Company, or to which the Company or any of its properties is
subject, that are not disclosed in the Prospectus and the Disclosure
Package and which, if adversely decided, would individually or in
the aggregate have a material adverse effect on the condition
(financial or other), business, properties or results of operations
of the Company, or would materially and adversely affect the ability
of the Company to perform its obligations under this Agreement and
the other Basic Documents or otherwise materially affect the
issuance of the Notes or the consummation of the transactions
contemplated hereby or by the Basic Documents ("Material Adverse
Effect").
(k) Neither the offer, sale or delivery of the Notes by the
Company nor the execution, delivery or performance of this Agreement
or the other Basic Documents by the Company, nor the consummation by
the Company 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 securities 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 conflicts or will conflict with or constitutes or
will constitute a breach of, or a default under, the organizational
documents or bylaws of the Company or (ii) 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 the Company is a party
or by which the Company or any of its properties may be bound, or
violates or will violate in any material respect any statute, law,
regulation or filing or judgment, injunction, order or decree
applicable to the Company or any of its properties, or will result
in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant to the terms of
any agreement or instrument to which it is a party or by which it
may be bound or to which any of its properties is subject other than
as contemplated by the Basic Documents.
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(l) The Company has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement
and the other Basic Documents to which it is a party; the execution
and delivery of, and the performance by the Company of its
obligations under, this Agreement and the other Basic Documents to
which it is a party have been duly and validly authorized by the
Company and this Agreement and the other Basic Documents have been
duly executed and delivered by the Company and constitute the valid
and legally binding agreements of the Company, enforceable against
the Company in accordance with their respective terms, except as the
enforcement hereof and thereof may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance or other similar laws
relating to or affecting creditors' rights generally and court
decisions with respect thereto and subject to the applicability of
general principles of equity, and except as rights to indemnity and
contribution hereunder and thereunder may be limited by Federal or
state securities laws or principles of public policy.
(m) SLC's sale and contribution of Trust Student Loans to SLC
Receivables and SLC Receivables's sale and contribution of Trust
Student Loans to the Eligible Lender Trustee on behalf of the
Company as of the applicable sale date described in the Sale
Agreements will vest in the Eligible Lender Trustee on behalf of the
Company all of the Company's right, title and interest therein,
subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance.
(n) The Company's assignment of the Trust Student Loans to the
Indenture Trustee pursuant to the Indenture will vest in the
Indenture Trustee, for the benefit of the Noteholders, a first
priority perfected security interest therein, subject to no prior
lien, mortgage, security interest, pledge, adverse claim, charge or
other encumbrance.
(o) The Company is not, nor as a result of the issuance and
sale of the Notes as contemplated hereunder will it become, subject
to registration as an "investment company" under the Investment
Company Act of 1940, as amended (the "1940 Act").
(p) The representations and warranties made by the Company in
any Basic Document to which the Company is a party and made in any
Officer's Certificate of the Company will be true and correct at the
time made and on and as of the Closing Date.
(q) The Depositor is not, and was not at the Time of Sale, an
"ineligible issuer" (within the meaning of Rule 405 of the Act).
(r) The Company filed with the Commission (i) pursuant to Rule
424(b) under the Act, the Base Prospectus on September 11, 2006 and
(ii) pursuant to Rule 433(d) under the Act (x) the Initial FWP on
September 11, 2006 and (y) the Term Sheet on September 13, 2006.
(s) Other than the Initial FWP and the Term Sheet, the Company
has not made any other offer relating to the Notes that would
constitute a "free writing prospectus" (as defined in Rule 405 under
the Act). The Company has complied with the
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requirements of Rule 433 under the Act applicable to any "issuer free writing
prospectus" (as defined in Rule 433(h)(1) under the Act), including timely
filing with the Commission, retention where required and legending.
4. Offering by Underwriters.
(a) Each Underwriter proposes to offer and/or solicit offers for the
Notes to be purchased by it for sale to the public as set forth in the
Disclosure Package and in the Prospectus and each Underwriter agrees that all
such offers, solicitations and sales by it shall be made in compliance with all
applicable laws and regulations. Each Underwriter will enter into a Contract of
Sale (within the meaning of Rule 159 under the Act) with an investor only after
delivery of the Disclosure Package to such investor. Each Underwriter shall keep
sufficient records to document its delivery of the Disclosure Package to each
investor prior to the related Contract of Sale.
(b) Each Underwriter may prepare and provide to investors certain
Free Writing Prospectuses (as defined below), subject to the following
conditions:
(i) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, an Underwriter shall not convey or
deliver any Written Communication (as such term is defined in Rule 405 of the
Act) to any person in connection with the initial offering of the Notes, unless
such Written Communication (i) is made in reliance on Rule 134 under the Act,
(ii) constitutes a prospectus satisfying the requirements of Rule 430B under the
Act, (iii) is the Initial FWP or the Term Sheet, or (iv) both (A) constitutes a
Free Writing Prospectus used in reliance on Rule 164 and (B) includes only
information that is within the definition of either (x) "ABS Informational and
Computational Materials" as defined in Item 1100 of Regulation AB or (y)
Permitted Additional Materials (as defined herein).
(ii) Each Underwriter shall comply with all applicable laws and
regulations in connection with the use of Free Writing Prospectuses, including
but not limited to Rules 164 and 433 under the Act.
(iii) For purposes hereof, "Free Writing Prospectus" shall have the
meaning given such term in Rules 405 and 433 under the Act. "Issuer Information"
shall mean information included in a Free Writing Prospectus that both (i) is
within the types of information specified in clauses (1) to (5) of footnote 271
of Commission Release No. 33-8591 (Securities Offering Reform) and (ii) has been
either prepared by, or reviewed and approved by, SLC. Information contained in
the Disclosure Package shall be deemed to be approved by SLC for purposes of the
definition of Issuer Information and consented to for purposes of the definition
of Permitted Additional Materials. "Underwriter Derived Information" shall refer
to information of the type described in clause (5) of such footnote 271 when
prepared by an Underwriter. "Permitted Additional Materials" shall mean
information that is not ABS Informational and Computational Materials and (A)
that are referred to in Section 4(b)(vi), (B) that constitute price, yield,
weighted average life, subscription or allocation information, or
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a trade confirmation, or (C) otherwise with respect to which SLC has provided
written consent to the Underwriter to include in a Free Writing Prospectus.
(iv) All Free Writing Prospectuses provided to investors, whether or
not filed with the Commission, shall bear a legend including substantially the
following statement:
SLC Student Loan Receivables I, Inc. has filed a registration
statement (including a prospectus) with the SEC for the offering to
which this communication relates. Before you invest, you should read
the prospectus in that registration statement and the other
documents SLC Student Loan Receivables I, Inc. has filed with the
SEC for more complete information about SLC Student Loan Receivables
I, Inc. and the offering. You may get these documents for free by
visiting ▇▇▇▇▇ on the SEC web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively,
SLC Student Loan Receivables I, Inc., any underwriter or any dealer
participating in the offering will arrange to send you the
prospectus if you request it by calling 1-800-831-9146.
SLC or the Representative shall have the right to require additional
specific legends or notations to appear on any Free Writing
Prospectus, the right to require changes regarding the use of
terminology and the right to determine the types of information
appearing therein with the approval of, in the case of SLC, the
Representative and, in the case of the Representative, SLC (which in
either case shall not be unreasonably withheld).
(v) Each Underwriter shall deliver to SLC and its counsel prior to
the proposed date of first use thereof (i) any Free Writing Prospectus prepared
by that Underwriter that contains any Issuer Information (other than a Free
Writing Prospectus that contains only preliminary terms of the Notes) and (ii)
any Free Writing Prospectus prepared by that Underwriter that contains only a
description of the final terms of the Notes after such terms have been
established for all classes of Notes. Notwithstanding the foregoing, the
Underwriter shall not be required to deliver any Free Writing Prospectus to SLC
to the extent that it does not contain substantive changes from or additions to
any Free Writing Prospectus previously approved by SLC.
(vi) Subject to the following sentence, all information provided by
any Underwriter to Bloomberg or Intex or similar entities to the extent
constituting a Free Writing Prospectus, shall be deemed for all purposes hereof
to be a Free Writing Prospectus. Each Underwriter may send the information
contained in Bloomberg screens and Intex, cdi files to potential investors in
the Notes. In connection therewith, the Underwriter agrees that it shall not
provide any information constituting Issuer Information through the foregoing
media unless that information is or will be contained either in the Initial FWP
or in a Free Writing Prospectus delivered in compliance with Section 4(b)(v),
above.
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(c) Each Underwriter covenants with SLC that after the Prospectus is
available such Underwriter shall not distribute any written information
concerning the Notes to an investor unless such information is preceded or
accompanied by the Prospectus or by notice to the investor that the
Prospectus is available for free by visiting ▇▇▇▇▇ on the SEC website at
▇▇▇.▇▇▇.▇▇▇. The use of written information in accordance with the
preceding sentence is not a Free Writing Prospectus and is not otherwise
restricted or governed in any way by this Agreement.
(d) (i) Each Underwriter shall file with the Commission any Free
Writing Prospectus prepared by such Underwriter that has been distributed
by such Underwriter in a manner reasonably designed to lead to its broad,
unrestricted dissemination no later than the date of first use; provided
that, if that Free Writing Prospectus contains only information of a type
included within the definition of ABS Informational and Computational
Materials then such filing shall be made within the later of (x) two
business days after the Underwriter first provides this information to
investors and (y) the date upon which the Depositor is required to file
the Prospectus Supplement with the Commission pursuant to Rule 424(b)(5)
under the Act; provided further, that no Underwriter shall be required to
file any Free Writing Prospectus that does not contain substantive changes
from or additions to information included (including through incorporation
by reference) in a prospectus or Free Writing Prospectus previously filed
with the Commission.
(ii) With the Depositor's consent, each Underwriter may
deliver to the Depositor and the Company, not less than one business
day prior to the required date of filing thereof, all information
included in a Free Writing Prospectus prepared by such Underwriter
required to be filed with the Commission pursuant to Section 4(d)(i)
above. Upon timely receipt by the Depositor and the Company of such
information, such Underwriter's obligations pursuant to Section
4(d)(i) above shall be deemed satisfied.
(e) Each Underwriter further agrees that (i) if the Prospectus is
not delivered with or preceding delivery of the confirmation in reliance
on Rule 172, it will include in every confirmation sent out the notice
required by Rule 173 informing the investor that the sale was made
pursuant to the Registration Statement and that the investor may request a
copy of the Prospectus from such Underwriter; (ii) if a paper copy of the
Prospectus is requested by a person who receives a confirmation, such
Underwriter shall deliver a paper copy of such Prospectus; (iii) if an
electronic copy of the Prospectus is delivered by an Underwriter for any
purpose such copy shall be the same electronic file containing the
prospectus in the identical form transmitted electronically to such
Underwriter by or on behalf of SLC specifically for use by such
Underwriter pursuant to this Section 4(e). Each Underwriter further agrees
that (i) if it delivers to an investor the Prospectus in .pdf format, upon
such Underwriter's receipt of a request from the investor within the
period for which delivery of the Prospectus is required, such Underwriter
will promptly deliver or cause to be delivered to the investor, without
charge, a paper copy of the Prospectus and (ii) it will provide to SLC any
Free Writing Prospectuses, or portions thereof, prepared by it which SLC
is required to file with the Commission in electronic format and will use
reasonable efforts to provide to SLC such Free Writing Prospectuses,
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or portions thereof, in either Microsoft Word(R) or Microsoft Excel(R)
format and not in .pdf format, except to the extent that SLC, in its sole
discretion, waives such requirements.
(f) Each Underwriter shall maintain written or electronic records of
the time and manner that any disclosure materials (including the
Prospectus, Prospectus Supplement, Initial FWP, Term Sheet or any Free
Writing Prospectus) were conveyed to investors at or prior to the Time of
Sale to the extent required by the Act. In addition, each of the
Underwriters and SLC shall, for a period of at least (3) three years after
the date hereof, maintain written and/or electronic records of any Free
Writing Prospectus used to the extent not filed with the Commission.
5. Agreements of the Company. The Company agrees with each of the
Underwriters as follows:
(a) The Company will prepare a supplement to the Prospectus setting
forth the amount of the Notes covered thereby and the terms thereof not
otherwise specified in the Prospectus, the price at which the Notes are to
be purchased by the Underwriters, either the initial public offering price
or the method by which the price at which the Notes are to be sold will be
determined, the selling concessions and reallowances, if any, and such
other information as the Underwriters and the Company deem appropriate in
connection with the offering of the Notes , and the Company will timely
file such supplement to the prospectus with the SEC pursuant to Rule
424(b) under the Act, but the Company will not file any amendments to the
Registration Statement as in effect with respect to the Notes or any
amendments or supplements to the Prospectus, or any Free Writing
Prospectus to the extent required by Rule 433(d) under the Act, unless it
shall first have delivered copies of such amendments, supplements or Free
Writing Prospectus to the Underwriters, with reasonable opportunity to
comment on such proposed amendment or supplement, or if the Underwriters
shall have reasonably objected thereto promptly after receipt thereof; the
Company will immediately advise the Underwriters or the Underwriters'
counsel (i) when notice is received from the SEC that any post-effective
amendment to the Registration Statement has become or will become
effective and (ii) of any order or communication suspending or preventing,
or threatening to suspend or prevent, the offer and sale of the Notes or
of any proceedings or examinations that may lead to such an order or
communication, whether by or of the SEC or any authority administering any
state securities or Blue Sky law, as soon as the Company is advised
thereof, and will use its best efforts to prevent the issuance of any such
order or communication and to obtain as soon as possible its lifting, if
issued. The Company will comply with the requirements applicable to any
"issuer free writing prospectus" (as defined in Rule 433(h)(1) under the
Act), including timely filing with the Commission, retention where
required and legending. The Company will timely file with the Commission
any Free Writing Prospectus relating to information delivered by an
Underwriter to the Depositor and the Company in accordance with Section
4(d)(ii) of this Agreement (each such Free Writing Prospectus, an "Assumed
Free Writing Prospectus").
(b) If, at any time following the issuance of an "issuer free
writing prospectus" or when the Prospectus relating to the Notes is
required to be delivered under
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the Act, any event occurred or occurs as a result of which such "issuer
free writing prospectus" would conflict with the information in the
Registration Statement or the Prospectus, or the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend or supplement the
Prospectus to comply with the Act or the Rules and Regulations, the
Company promptly will notify the Representative of such event and will
promptly prepare and file with the SEC, at its own expense, an "issuer
free writing prospectus" or an amendment or supplement to such Prospectus
that will correct such statement or omission or an amendment that will
effect such compliance. Neither the Representative's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 8
hereof.
(c) The Company will immediately inform the Underwriters (i) of the
receipt by the Company of any communication from the SEC 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 the Company is a
party relating to the offering or sale of the Notes.
(d) The Company will furnish to the Underwriters, without charge,
copies of the Registration Statement (including all documents and exhibits
thereto or incorporated by reference therein), the Prospectus, the
Disclosure Package 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) The Company will cooperate with the Underwriters in listing the
Class A Notes on the Irish Stock Exchange.
(f) The Company will cooperate with the Underwriters and with their
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 under the securities or Blue Sky laws of such
jurisdictions as the Underwriters may designate and will file such
consents to service of process or other documents necessary or appropriate
in order to effect such qualification or exemptions; provided that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now 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.
(g) The Company consents 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 Disclosure Package and
of the Prospectus furnished by the Company.
(h) To the extent, if any, that the rating or ratings provided with
respect to the Notes by the rating agency or agencies that initially rate
the Notes is
11
conditional upon the furnishing of documents or the taking of any other
reasonable actions by the Company, the Company shall cause to be furnished
such documents and such other actions to be taken.
(i) So long as any of the Notes are outstanding, the Company will
furnish to the Underwriters (i) as soon as available, a copy of each
document relating to the Notes required to be filed with the SEC pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or any order of the SEC thereunder, and (ii) such other information
concerning the Company as the Underwriters may request from time to time.
(j) If this Agreement shall terminate or shall be terminated after
execution and delivery pursuant to any provisions hereof (otherwise than
by notice given by the Representative terminating this Agreement pursuant
to Section 10 or Section 11 hereof) or if this Agreement shall be
terminated by the Representative because of any failure or refusal on the
part of the Company to comply with the terms or fulfill any of the
conditions of this Agreement, the Company agrees to reimburse the
Underwriters for all out-of-pocket expenses (including fees and expenses
of their counsel) reasonably incurred by it in connection herewith, but
without any further obligation on the part of the Company 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 descriptions set forth in the
Prospectus and the Disclosure Package.
(l) Except as stated in this Agreement, the Disclosure Package and
the Prospectus, the Company has not taken, nor will it 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 the Notes.
(m) For a period from the date of this Agreement until the
retirement of the Notes, the Company will deliver to you the annual
statements of compliance and the annual independent certified public
accountants' reports furnished to the Indenture Trustee or the Company
pursuant to the Servicing Agreement as soon as such statements and reports
are furnished to the Indenture Trustee or the Company.
(n) On or before the Closing Date, the Company shall ▇▇▇▇ its
accounting and other records, if any, relating to the Trust Student Loans
and shall cause the Servicer, SLC and SLC Receivables to ▇▇▇▇ their
respective computer records relating to the Trust Student Loans to show
the absolute ownership by the Indenture Trustee, as eligible lender of,
and the interest of the Company in, the initial Trust Student Loans, and
the Company shall not take, or shall not permit any other person to take,
any action inconsistent with the ownership of, and the interest of the
Company in, the Trust Student Loans, other than as permitted by the Basic
Documents
(o) For the period beginning on the date of this Agreement and
ending 90 days hereafter, none of the Company and any entity affiliated,
directly or indirectly,
12
with the Company will, without the prior written notice to the
Underwriters, offer to sell or sell notes (other than the Notes)
collateralized by FFELP Loans; provided, however, that this shall not be
construed to prevent the sale of FFELP Loans by the Company or any entity
affiliated, directly or indirectly, with the Company.
(p) If, at the time the Registration Statement became effective, any
information shall have been omitted therefrom in reliance upon Rule 430A
under the 1933 Act, then, immediately following the execution of this
Agreement, the Company will prepare, and file or transmit for filing with
the Commission in accordance with such Rule 430A and Rule 424(b) under the
1933 Act, copies of an amended Prospectus containing all information so
omitted.
(q) As soon as practicable, but not later than 16 months after the
date of this Agreement, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective
prior to the date of this Agreement and (iii) the date of the Company's
most recent Annual Report or Form 10-K filed with the Commission prior to
the date of this Agreement, which will satisfy the provisions of Section
11(a) of the Act.
6. Representations and Warranties of the Underwriters. Each of the
Underwriters, severally and not jointly, hereby represents and warrants to and
agrees with SLC that:
(a) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of section 21 of the
Financial Services Markets Act 2000 (the "FSMA")), received by it in
connection with the issue or sale of the Notes in circumstances in which
section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied and will comply with all applicable provisions
of the FSMA with respect to anything done by it in relation to the Notes
in, from or otherwise involving the United Kingdom.
7. Indemnification and Contribution. (a) Each of the Company and SLC
jointly and severally agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and expenses (or
actions in respect thereof) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Prospectus, the Disclosure Package or in any amendment or
supplement thereto or any Issuer Information contained in a Free Writing
Prospectus permitted under this Agreement, in each case, 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,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in
13
connection with investigating or defending any such loss, claim, damage,
liability, or action as such expenses are incurred, 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 an Underwriter furnished in writing to the
Company or SLC by or on behalf of such Underwriter through the Representative
expressly for use therein, it being understood that the only such information
furnished by any Underwriter consists of the information described as such in
Section 12 of this Agreement. The foregoing indemnity agreement shall be in
addition to any liability which the Company may otherwise have.
(b) Each of the Company and SLC jointly and severally agrees to
indemnify and hold harmless each of the Underwriters and each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, from and against any losses,
claims, damages, liabilities and expenses (or actions in respect thereof)
arising out of or based upon failure of the Depositor, in its capacity as
the depositor of the Company, to maintain its status as an eligible issuer
within the meaning of Rule 405 under the Act as of the date hereof or as
of the time set forth in Rule 164(h)(2) of the Act or its failure to
timely file, pursuant to Rule 433 under the Act, any "issuer free writing
prospectus" or Assumed Free Writing Prospectus with the Commission and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred.
(c) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company and SLC and its respective trustees,
directors and officers, and any person who controls the Company or SLC
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, to the same extent as the indemnity from the Company and SLC to the
Underwriters set forth in paragraph (a) hereof, but only (i) with respect
to information relating to such Underwriter furnished in writing by or on
behalf of such Underwriter through the Representative expressly for use in
the Registration Statement, the Prospectus, the Disclosure Package or any
amendment or supplement thereto, it being understood that the only such
information furnished by any Underwriter consists of the information
described as such in Section 12 of this Agreement and (ii) arising out of
or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Free Writing Prospectus (as defined in Rule
405 under the Act) not constituting an "issuer free writing prospectus"
(as defined in Rule 433(h)(1) under the Act) and used by such indemnifying
Underwriter, or arising out of or based upon any omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein not misleading (except to the extent such untrue
statement or omission or alleged untrue statement or omission in such Free
Writing Prospectus (x) is based upon or results from errors, mistakes or
omissions in information provided by the Company or SLC to the
Underwritings or (y) is contained in the Registration Statement, the
Disclosure Package or the Prospectus. The foregoing indemnity agreement
shall be in addition to any liability which the Underwriters may otherwise
have.
14
(d) If any action, suit or proceeding shall be brought against any
person in respect of which indemnity may be sought pursuant to Section
7(a), 7(b) or 7(c), such person (the "indemnified party") shall promptly
notify the parties against whom indemnification is being sought (the
"indemnifying parties"), but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party except to the extent that the indemnifying party is
materially prejudiced by such omission. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party). The applicable Underwriter or any such controlling
person 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 such 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 there may be one or more legal
defenses available to it which are different from or additional to or in
conflict with those available to the indemnifying parties and in the
reasonable judgment of such counsel it is advisable for the Underwriter or
such controlling person to employ separate counsel (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 each Underwriter and controlling persons not
having actual or potential differing interests with such Underwriter or
among themselves, which firm shall be designated in writing by such
Underwriter, and that all such fees and expenses shall be reimbursed on a
monthly basis as provided in paragraph (a) hereof. An indemnifying party
will not, without the prior written consent of the indemnified party,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii)
does not include a statement as to, or an admission of fault, culpability
or a failure to act by or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a), (b) or (c)
hereof in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then an indemnifying party, in
15
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 the Company
and SLC on the one hand and the applicable Underwriter 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 the Company and SLC on the
one hand and the applicable Underwriter 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 the Company and SLC on
the one hand and an Underwriter 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 the Company and SLC bear to the
total underwriting discounts and commissions received by such Underwriter.
The relative fault of the Company and SLC 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 the Company and SLC on the one hand or by an
Underwriter on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission.
(f) The Company, SLC and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 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 (e) 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 (e) 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 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total
Underwriting discounts and commissions received by such Underwriter with
respect to the Notes underwritten by it exceed the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this paragraph (f) to contribute are several
in proportion to their respective underwriting obligation.
(g) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under
this Section 7 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 7 and the representations and warranties of the Company 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, the
16
Company, SLC 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, the Company, SLC 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 7.
8. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters to purchase the Notes hereunder are subject to the following
conditions precedent:
(a) All actions required to be taken and all filings required to be
made by the Company under the 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 shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the Underwriters, shall
be contemplated by the Commission.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development or event involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of the Company,
SLC, SLC Receivables, the Servicer or the Sub-Servicer not contemplated by
the Registration Statement, which in the opinion of the Representative,
would materially adversely affect the market for the Notes , (ii) any
downgrading in the rating of any debt securities of the Company, SLC, SLC
Receivables, the Servicer or the Sub-Servicer by any nationally recognized
statistical rating organization or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company, SLC, SLC Receivables, the Servicer or the
Sub-Servicer (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating), or (iii) any event or development which makes any statement made
in the Registration Statement, Disclosure Package or Prospectus untrue or
which, in the opinion of the Company and its counsel or the Underwriters
and their counsel, requires the filing of any amendment to or change in
the Registration Statement, Disclosure Package 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, Disclosure Package
or Prospectus to reflect such event or development would, in the opinion
of the Representative, materially adversely affect the market for the
Notes .
(c) You shall have received an opinion addressed to you of
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, or other counsel satisfactory to you,
dated the Closing Date, in form and substance satisfactory to you and your
counsel with respect to the status of the Company, to each of the Sale
Agreements, the Servicing Agreement, the Administration Agreement, the
Company Eligible Lender Trust Agreement, the Indenture, the Trust
Agreement, and this Agreement and to the validity of the Notes and such
related matters as you shall reasonably request. In addition, you shall
have received an opinion addressed to you of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, in its capacity as
17
counsel for the Company, in form and substance satisfactory to you and
your counsel, concerning "true sale," "non- consolidation" and "first
perfected security interest" and certain other issues with respect to the
transfer of the Trust Student Loans from the SLC to SLC Receivables, SLC
Receivables to the Company and from the Company to the Indenture Trustee.
(d) You shall have received an opinion addressed to you of
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ &Taft LLP, in its capacity as counsel for the
Company, dated the Closing Date, in form and substance satisfactory to you
and your counsel to the effect that the statements in the Initial FWP and
the Prospectus under the headings "Certain U.S. Federal Income Tax
Considerations" and "Certain ERISA Considerations", to the extent such
statements summarize the material tax consequences and the material
consequences under ERISA, respectively, of the purchase, beneficial
ownership and disposition of the Notes to holders thereof described
therein, are correct in all material respects.
(e) You shall have received an opinion addressed to you of
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ &Taft LLP, in its capacity as counsel for the
Company, dated the Closing Date, in form and substance satisfactory to you
and your counsel with respect to the character of the Notes for federal
tax purposes.
(f) You shall have received an opinion addressed to you of Stroock &
Stroock & ▇▇▇▇▇ LLP, in its capacity as Underwriters' Counsel, dated the
Closing Date, in form and substance satisfactory to you.
(g) You shall have received an opinion and disclosure letters
addressed to you of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ &Taft LLP, in its capacity as
counsel for the Company, dated the Closing Date in form and substance
satisfactory to you and your counsel with respect to the Registration
Statement, the Disclosure Package and the Prospectus certain matters
arising under the Trust Indenture Act and the ▇▇▇▇ ▇▇▇.
(h) You shall have received opinions addressed to you of Cadwalader,
▇▇▇▇▇▇▇▇▇▇ &Taft LLP or other counsel satisfactory to you in their
capacity as counsel to SLC and SLC Receivables, each dated the Closing
Date and satisfactory in form and substance to you and your counsel.
(i) You shall have received an opinion addressed to you of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, P.A., in its capacity as counsel to the Owner Trustee,
dated the Closing Date and in form and substance satisfactory to you and
your counsel.
(j) You shall have received an opinion addressed to you of Thacher,
▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in its capacity as counsel to the Indenture Trustee,
dated the Closing Date and in form and substance satisfactory to you and
your counsel, to the effect that:
(i) The Indenture Trustee is a national banking association
duly organized and validly existing under the laws of the United
States.
18
(ii) The Indenture Trustee has the full corporate trust power
to accept the office of indenture trustee under the Indenture and to
enter into and perform its obligations under the Indenture and each
Guarantee Agreement.
(iii) The execution and delivery of each of the Indenture and
each Guarantee Agreement, and the performance by the Indenture
Trustee of its obligations under the Indenture and each Guarantee
Agreement, have been duly authorized by all necessary action of the
Indenture Trustee and each has been duly executed and delivered by
the Indenture Trustee.
(iv) The Indenture and each Guarantee Agreement constitute
valid and binding obligations of the Indenture Trustee enforceable
against the Indenture Trustee.
(v) The execution and delivery by the Indenture Trustee of the
Indenture and each Guarantee Agreement do not require any consent,
approval or authorization of, or any registration or filing with,
any state or United States Federal governmental authority.
(vi) Each of the Notes has been duly authenticated by the
Indenture Trustee.
(vii) Neither the consummation by the Indenture Trustee of the
transactions contemplated in the Indenture and each Guarantee
Agreement nor the fulfillment of the terms thereof by the Indenture
Trustee will conflict with, result in a breach or violation of, or
constitute a default under any law or the charter, by-laws or other
organizational documents of the Indenture Trustee or the terms of
any indenture or other agreement or instrument known to such counsel
and to which the Indenture Trustee or any of its subsidiaries is a
party or is bound or any judgment, order or decree known to such
counsel to be applicable to the Indenture Trustee or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Indenture Trustee or any of its subsidiaries.
(viii) The Eligible Lender Trustee is an "eligible lender" for
purposes of the FFELP Program in its capacity as Indenture Trustee
with respect to Trust Student Loans held under the Indenture.
(k) You shall have received an opinion addressed to you of Thacher,
▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in its capacity as counsel for the Eligible Lender
Trustee and the Indenture Administrator, in form and substance
satisfactory to you.
(l) [Intentionally Omitted]
(m) You shall have received certificates addressed to you dated the
Closing Date of any two of the Chairman of the Board, the President, any
Executive Vice President, Senior Vice President or Vice President, the
Treasurer, any Assistant Treasurer, the principal financial officer or the
principal accounting officer of the Sub-
19
Administrator in which such officers shall state that, to the best of
their knowledge after reasonable investigation, (i) the representations
and warranties of the Sub-Administrator contained in the Subadministration
Agreement are true and correct in all material respects, that the
Sub-Administrator has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such agreements
at or prior to the Closing Date, (ii) that they have reviewed the
Prospectus and the Disclosure Package and that the information therein
regarding the Sub-Administrator is fair and accurate in all material
respects, and (iii) since the date of the Time of Sale, except as may be
disclosed in the Prospectus or the Disclosure Package, no Material Adverse
Effect or any development involving a prospective Material Adverse Effect
in, or affecting particularly the business or properties of the
Sub-Administrator has occurred.
(n) You shall have received certificates addressed to you dated the
Closing Date of any two of the Chairman of the Board, the President, any
Executive Vice President, Senior Vice President or Vice President, the
Treasurer, any Assistant Treasurer, the principal financial officer or the
principal accounting officer of SLC, SLC Receivables and the Servicer in
which such officers shall state that, to the best of their knowledge after
reasonable investigation, (i) the representations and warranties of SLC,
SLC Receivables or the Servicer, as the case may be, contained in the
respective SLC Sale Agreement, SLC Receivables Sale Agreement, the
Servicing Agreement, the Subservicing Agreement, the Administration
Agreement and the Subadministration Agreement, as applicable, are true and
correct in all material respects, that each of SLC, SLC Receivables and
the Servicer has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied under such agreements at or prior
to the Closing Date, (ii) that they have reviewed the Prospectus and the
Disclosure Package and that the information therein regarding SLC, SLC
Receivables or the Servicer, as applicable, is fair and accurate in all
material respects, and (iii) since the first Time of Sale, no Material
Adverse Effect or any development involving a prospective Material Adverse
Effect, in or affecting particularly the business or properties of SLC,
SLC Receivables or the Servicer, as applicable, has occurred.
(o) You shall have received certificates addressed to you dated the
Closing Date of any two of the Chairman of the Board, the President, any
Executive Vice President, Senior Vice President or Vice President, the
Treasurer, any Assistant Treasurer, the principal financial officer or the
principal accounting officer of the Sub-Servicer in which such officers
shall state that, to the best of their knowledge after reasonable
investigation, (i) the representations and warranties of the Sub-Servicer
contained in the Subservicing Agreement are true and correct in all
material respects, that the Sub-Servicer has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
under such agreements at or prior to the Closing Date, (ii) that they have
reviewed the Prospectus and the Disclosure Package and that the
information therein regarding the Sub-Servicer is fair and accurate in all
material respects, and (iii) since the date of the Time of Sale, except as
may be disclosed in the Prospectus or the Disclosure Package, no Material
Adverse Effect or any development involving a prospective Material Adverse
Effect in, or affecting particularly the business or properties of the
Sub-Servicer has occurred.
20
(p) You shall have received evidence satisfactory to you that, on or
before the Closing Date, UCC-1 financing statements have been or are being
filed in the office of the Secretary of State of the States of Delaware
and New York reflecting the grant of the security interest by the Company
in the Trust Student Loans and the proceeds thereof to the Indenture
Trustee.
(q) You shall have received a certificate addressed to you dated the
Closing Date from a responsible officer acceptable to you of the Indenture
Trustee in form and substance satisfactory to you and your counsel and to
which shall be attached each Guarantee Agreement.
(r) The Underwriters shall have received on the Closing Date from
KPMG LLP, accountants to the Company, a 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 (i) certain information regarding the Trust
Student Loans and (ii) the static pool data and setting forth the results
of such specified procedures.
(s) All the representations and warranties of the Company contained
in this Agreement 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 and the Underwriters
shall have received a certificate, dated the Closing Date and signed by an
executive officer of the Company to the effect set forth in this Section
8(s) and in Section 8(t) hereof.
(t) The Company shall not have failed at or prior to the Closing
Date to 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.
(u) The Underwriters shall have received by instrument dated the
Closing Date (at the option of the Representative), in lieu of or in
addition to the legal opinions referred to in this Section 8, the right to
rely on opinions provided by such counsel and all other counsel under the
terms of the Basic Documents.
(v) You shall have received certificates addressed to you dated the
Closing Date of New York State Higher Education Services Corporation,
California Student Aid Commission and United Student Aid Funds, Inc.
(each, a "Significant Guarantor") to the effect that (i) the information
in the Prospectus and the Disclosure Package with respect to the
applicable Significant Guarantor does not contain any untrue statement of
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements about the Significant
Guarantor therein, in the light of the circumstances under which they are
made, not misleading, and (ii) there are no proceedings pending or overtly
threatened in writing against the Significant Guarantor in any court or
before any governmental authority or arbitration board or tribunal,
wherein an unfavorable decision, ruling or finding is likely and would
materially adversely affect the performance by the Significant Guarantor
to carry on its business substantially as now conducted.
21
(w) The Class A Notes shall be rated "AAA," "AAA" and "Aaa,"
respectively, by Fitch, Inc. ("Fitch"), Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P") and
▇▇▇▇▇'▇ Investors Service ("Moody's"), the Class B Notes shall be rated
"AA+," "AA+" and "Aa1," respectively, by Fitch, S&P and ▇▇▇▇▇'▇ and that
none of Fitch, S&P or Moody's have placed the Notes under surveillance or
review with possible negative implications.
(x) The issuance of the Notes shall not have resulted in a reduction
or withdrawal by Fitch, S&P or Moody's of their then current rating of any
outstanding securities issued by the Company.
(y) You shall have received evidence satisfactory to you of the
completion of all actions necessary to effect the transfer of the Trust
Student Loans as described in the Prospectus and the Disclosure Package
and the recordation thereof on SLC's, SLC Receivables' and the
Sub-Servicer's computer systems.
(z) You shall have received such further information, certificates
and documents as the Representative may reasonably have requested, and all
proceedings in connection with the transactions contemplated by this
Agreement and all documents incident hereto shall be in all material
respects reasonably satisfactory in form and substance to the
Representative and its counsel.
(aa) You shall have received such other opinions, certificates and
documents as are required under the Indenture as a condition to the
issuance of the Notes.
The Company will provide or cause to be provided to you such
conformed copies of such of the foregoing opinions, notes, letters and documents
as you reasonably request.
9. Expenses. The Company agrees 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 it of its obligations hereunder: (i) the
preparation, printing or reproduction of the Registration Statement, the
Prospectus, the Disclosure Package and each amendment or supplement to any of
them, this Agreement, and each other Basic Document; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the Registration Statement, the
Prospectus, the Disclosure Package and all amendments or supplements to any of
them as may be reasonably requested for use in connection with the offering and
sale of the Notes; (iii) the preparation, printing, authentication, issuance and
delivery of definitive certificates for the Notes; (iv) the printing (or
reproduction) and delivery of this Agreement, the preliminary and supplemental
Blue Sky Memoranda and all other agreements or documents printed (or reproduced)
and delivered in connection with the offering of the Notes; (v) qualification of
the Indenture under the Trust Indenture Act; (vi) the qualification of the Notes
for offer and sale under the securities or Blue Sky laws of the several states
as provided in Section 3(k) hereof (including the reasonable fees, expenses and
disbursements of counsel relating to the preparation, printing or reproduction,
and delivery of the preliminary and supplemental Blue Sky Memoranda and such
qualification); (vii) the listing of the Class A Notes on the Irish Stock
Exchange; (viii) the fees and disbursements of (A) the Company's counsel, (B)
the Underwriters' counsel, (C) the Indenture Trustee and its counsel,
22
(D) the Owner Trustee and its counsel, (E) DTC in connection with the book-entry
registration of the Notes, (F) the SEC and (G) KPMG LLP, accountants for the
Company and issuer of the Comfort Letter; and (viii) the fees charged by S&P,
Fitch and ▇▇▇▇▇'▇ for rating the Notes.
10. Effective Date of Agreement. This Agreement shall be deemed
effective as of the date first above written upon the execution and delivery
hereof by all the parties hereto. Until such time as this Agreement shall have
become effective, it may be terminated by the Company, by notifying the
Representative, or by the Representative, by notifying the Company.
Any notice under this Section 10 may be given by telecopy or
telephone but shall be subsequently confirmed by letter.
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 the Company, by notice to the Company, if
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 shall have been declared by either Federal or
state authorities, or (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, 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 Disclosure Package or
Prospectus, as applicable, or to enforce contracts for the resale of the Notes
by the Underwriters. Notice of such termination may be given to the Company by
telecopy or telephone and shall be subsequently confirmed by letter.
12. Information Furnished by the Underwriters. The statements set
forth in the table on the cover (page 1) of the Prospectus Supplement, and in
the tables and the third, sixth (second sentence only), seventh (second and
third sentences only), tenth, eleventh and twelfth paragraphs under the heading
"Underwriting" in 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 7 hereof.
13. Default by One of the Underwriters. If any of the Underwriters
shall fail on the Closing Date to purchase the Notes which it is obligated to
purchase hereunder (the "Defaulted Notes"), the remaining Underwriters (the
"Non-Defaulting Underwriters") shall have the right, but not the obligation,
within one (1) business day thereafter, to make arrangements to purchase all,
but not less than all, of the Defaulted Notes upon the terms herein set forth;
if, however, the Non-Defaulting Underwriters shall have not completed such
arrangements within such one (1) business day period, then this Agreement shall
terminate without liability on the part of the Non-Defaulting Underwriters.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
23
In the event of any such default which does not result in a
termination of this Agreement, the Non-Defaulting Underwriters shall have the
right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
14. Absence of Fiduciary Relationship. Each of the Company and SLC
acknowledges and agrees that:
(a) the Underwriters have been retained solely to act as
underwriters in connection with the sale of the Notes and agree with the
Company and SLC that no fiduciary, advisory or agency relationship between
the Company and SLC and the Underwriters has been created in respect of
any of the transactions contemplated by this Agreement, irrespective of
whether the Underwriters have advised or are advising the Company and SLC
on other matters;
(b) the price of the Notes set forth in this Agreement was
established by the Company and SLC following discussions and arms-length
negotiations with the Underwriters and the Company and SLC are capable of
evaluating and understanding and understand and accept the terms, risks
and conditions of the transactions contemplated by this Agreement;
(c) the Company and SLC have been advised that the Underwriters and
their affiliates are engaged in a broad range of transactions which may
involve interests that differ from those of the Company and SLC and that
the Underwriters have no obligation to disclose such interests and
transactions to the Company and SLC by virtue of any fiduciary, advisory
or agency relationship; and
(d) the Company and SLC waive, to the fullest extent permitted by
law, any claims they may have against the Underwriters for breach of
fiduciary duty or alleged breach of fiduciary duty and agree that the
Underwriters shall have no liability (whether direct or indirect) to the
Company and SLC in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the Company
or SLC, including members, employees or creditors of the Company or SLC.
15. Survival of Representations and Warranties. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement or contained in notes of officers of the Company submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation or statement as to the results thereof, made by or on
behalf of the Underwriters, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes .
16. Miscellaneous. Except as otherwise provided in Sections 7, 10
and 11 hereof, notice given pursuant to any provision of this Agreement shall be
in writing and shall be delivered (i) if to the Company, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, and
(ii) if to the Underwriter, to Citigroup Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇.
24
This Agreement has been and is made solely for the benefit of the
Underwriters, the Company, their respective directors, officers, trustees and
controlling persons referred to in Section 7 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 an Underwriter of any of the Notes in his status
as such purchaser.
17. Applicable Law; Counterparts. 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.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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.
25
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriter.
Very truly yours,
SLC STUDENT LOAN TRUST 2006-2
By: SLC Student Loan Receivables I, Inc.,
as Depositor
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Title: Treasurer
--------------------------------------
THE STUDENT LOAN CORPORATION
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Title: Vice President & Treasurer
--------------------------------------
Confirmed as of the date first
above mentioned.
CITIGROUP GLOBAL MARKETS INC.,
acting on behalf of itself and as Representative
of the Underwriters
By:/s/ ▇▇▇▇ ▇. ▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
---------------------------------------
Title: Director
--------------------------------------
SCHEDULE A
PRICE TO UNDERWRITING PROCEEDS TO
UNDERWRITER PUBLIC DISCOUNT DEPOSITOR
------------------------------------------------------------ -------------- --------------- -------------------
Citigroup Credit Suisse
Global Securities Goldman, Lehman
NOTES Markets Inc. (USA) LLC Sachs & Co. Brothers Inc.
--------- -------------- ------------ ------------ ------------- -------------- --------------- -------------------
Class A-1 $84,500,000 $15,600,000 $14,300,000 $15,600,000 100% 0.1750% 99.8250%
Class A-2 $341,250,000 $63,000,000 $57,750,000 $63,000,000 100% 0.1800% 99.8200%
Class A-3 $88,400,000 $16,320,000 $14,960,000 $16,320,000 100% 0.2000% 99.8000%
Class A-4 $390,000,000 $72,000,000 $66,000,000 $72,000,000 100% 0.2150% 99.7850%
Class A-5 $289,250,000 $53,400,000 $48,950,000 $53,400,000 100% 0.2350% 99.7650%
Class A-6 $426,400,000 $78,720,000 $72,160,000 $78,720,000 100% 0.2500% 99.7500%
Class B $50,050,000 $9,240,000 $8,470,000 $9,240,000 100% 0.3000% 99.7000%
Total $1,669,850,000 $308,280,000 $282,590,000 $308,280,000 $2,569,000,000 $5,651,250 $2,563,348,750