SLC Student Loan Trust 20__-__ Student Loan Asset-Backed Notes UNDERWRITING AGREEMENT
EXHIBIT
1.1
SLC
Student Loan Trust 20__-__
$__________
Student
Loan Asset-Backed Notes
__________,
20__
____________________
as
Representative of the Underwriters
listed on
Schedule A hereto
____________________
____________________
____________________
Ladies
and Gentlemen:
SLC
Student Loan Trust 20__-__, a Delaware statutory trust (the “Company”), proposes
to sell to ____________________ (the “Representative”) and the other
underwriters listed on Schedule A hereto
(together with the Representative, the “Underwriters”), pursuant to the terms of
this Underwriting Agreement (this “Agreement”), $__________ aggregate principal
amount of its Student Loan Asset-Backed Notes (the “Notes”) in the class and
initial principal amounts set forth on Schedule A
hereto. ____________________, a ____________________, 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 __________, 20__ (the “Indenture”), among the Company, the
Eligible Lender Trustee, ____________________, as indenture trustee (the
“Indenture Trustee”), and ____________________, 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 __________, 20__ (the
“Servicing Agreement”), between SLC, as Servicer and Administrator, and the
Company. SLC will enter into a Subservicing Agreement with
____________________, a ____________________ (the “Sub-Servicer”), to be dated
as of __________, 20__ (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 __________,
20__ (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
__________, 20__ (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 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 __________, 20__ (the “Trust
Agreement”), between the Owner Trustee and the Depositor, the Administration
Agreement, to be dated as of __________, 20__ (the “Administration Agreement”),
among SLC, as servicer and administrator, the Depositor and the Company, the
Eligible Lender Trust Agreement, to be dated as of __________, 20__ (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
__________, 20__ (the “Company Eligible Lender Trust Agreement” and, together
with the SLC Receivables Eligible Lender Trust Agreement, the “Eligible Lender
Trust Agreements”), between the Company and the Eligible Lender Trustee, 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 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 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP,
New York, New York, at __:__ am/pm New York time, on __________, 20__ (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 otherwise agreed to by the Company and
the Representative, the 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. 333-141134) 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 or any supplement to such 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
required to be stated therein or 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 __________, 20__, 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 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 (the “Underwriters’ Information” as defined in Section 12
below). As used in this Agreement, the term “Disclosure Package”
means, collectively, the initial free writing prospectus dated __________, 20__
relating to the Notes (the “Initial FWP”), the base prospectus dated __________,
20__ (the “Base Prospectus”) and the term sheet dated __________, 20__ (the
“Term Sheet”) (including the static pool information deemed excluded pursuant to
item 1105(d) of Regulation AB).
(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 (other than the Representative) 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 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.
(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 __________, 20__ and (ii) pursuant to Rule 433(d) under the
Act (x) the Initial FWP on __________, 20__ and (y) the Term Sheet on
__________, 20__.
(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 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 the
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 a trade confirmation, or (C) otherwise with respect to which SLC
has provided written consent to the applicable 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. Notwithstanding the foregoing, an 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, each 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.
(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 provide to the Depositor for filing 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 such
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 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
shall not be required to be filed.
(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, or portions thereof, in either Microsoft Word® or Microsoft Excel®
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, and within the time frame provided by, 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 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 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, 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 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 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 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, with the
Company will, without 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 is a
person whose ordinary activities involve it in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purpose of its
business;
(b) It has
not offered or sold and will not offer or sell the Notes other than to persons
whose ordinary activities involve them in acquiring, holding managing or
disposing of investments (as principal or as agent) for the purpose of their
business or who it is reasonable to expect will acquire, hold, manage or dispose
of investments (as principal or agent) for the purposes of their businesses
where the issue of the Notes would otherwise constitute a contravention of
Section 19 of the Financial Services and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (the
“FSMA”).
(c) 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 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
(d) 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
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 or SLC 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 (it being understood that each of the Initial FWP and
the Term Sheet constitutes an “issuer free writing prospectus”), 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 Underwriters or (y) is contained in the Registration Statement, the
Disclosure Package (except as supplemented or corrected in the Disclosure
Package, if such supplemented or corrected Disclosure Package was provided to
the Underwriters prior to the time the Underwriter used such Free Writing
Prospectus not constituting an “issuer free writing prospectus”) or the
Prospectus). The foregoing indemnity agreement shall be in addition
to any liability which the Underwriters may otherwise have.
(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 or
insufficient to hold harmless an indemnified party under paragraphs (a), (b) or
(c) hereof in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) 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 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 (even if the Underwriters were treated as one entity for such
purposes) 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 and liabilities (or actions in respect thereof) referred to in
paragraph (e) above shall be deemed to include 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
obligations and not joint.
(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 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, threatened 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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 Eligible Lender Trust Agreements, 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, in its capacity
as 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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 ____________________, 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 ____________________, 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.
(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 the Custody Agreement.
(iii) The
execution and delivery of each of the Indenture and the Custody Agreement, and
the performance by the Indenture Trustee of its obligations under the Indenture
and the Custody 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 the Custody 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 the Custody
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) Neither
the consummation by the Indenture Trustee of the transactions contemplated in
the Indenture and the Custody 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.
(vii) 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 ____________________, in its
capacity as counsel for the Eligible Lender Trustee and the Indenture
Administrator, in form and substance satisfactory to you.
(l) [Reserved]
(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 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 and the Administration
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.
(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 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.
(o) 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 State of Delaware reflecting the grant of the security
interest by the Company in the Trust Student Loans and the proceeds thereof to
the Indenture Trustee.
(p) [Reserved]
(q) The
Underwriters shall have received on the Closing Date from ____________________,
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.
(r) 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(r) and in Section 8(s) hereof.
(s) 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.
(t) The
Underwriters shall have received by instrument dated the Closing Date, 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.
(u) You shall
have received certificates addressed to you dated the Closing Date of
____________________, ____________________, ____________________ and
____________________ (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.
(v) The Notes
shall be rated “____” by Fitch, Inc. (“Fitch”), “____” by Standard & Poor’s
Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”) and
“____” by ▇▇▇▇▇’▇ Investors Service (“Moody’s); and neither Fitch, S&P nor
Moody’s has placed the Notes under surveillance or review with possible negative
implications.
(w) 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.
(x) 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
incidental hereto shall be in all material respects reasonably satisfactory in
form and substance to the Representative and its counsel.
(y) 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 incidental 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 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; (vii) the listing of the 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, (D) the Owner Trustee and its counsel, (E) DTC in connection with the
book-entry registration of the Notes, (F) the SEC and (G) __________,
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 on or after the
Time of Sale and 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 a material disruption in commercial
banking or securities settlement or clearance services in the United States, 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 tables (but only with respect to such Underwriter) and the
third, sixth (second sentence only), seventh (second and third sentences only
and, with respect to Section 7(c), only as it relates to the Representative),
tenth, eleventh and twelfth paragraphs under the heading “Underwriting” in the
Prospectus Supplement (collectively, the “Underwriters’ Information”) constitute
the only information furnished by or on behalf of the Underwriters (and in the
case of the second and third sentences of the seventh paragraph, furnished by
the Representative only) as such information is referred to in Sections 3(b) and
7 hereof.
13. Default by One of
the Underwriters. If an
Underwriter 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 a defaulting Underwriter from
liability in respect of its default.
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;
(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; and
(e) the
Company and SLC agree that neither of them will claim that the Underwriters, or
any of them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company or SLC, in connection with such
transaction or the process leading thereto.
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: General Counsel, and
(ii) if to the Underwriter, to ____________________, ____________________,
Attention: ____________________.
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.
The
Company, SLC and each of the Underwriters hereby irrevocably waive, to the
fullest extent permitted by applicable law, any and all right to trial by jury
in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company, SLC and the Underwriters, or any of them, with
respect to the subject matter hereof.
In
accordance with the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)), the Underwriters are required to
obtain, verify and record information that identifies their respective clients,
including the Company and SLC, which information may include the name and
address of their respective clients, as well as other information that will
allow the Underwriters to properly identify their respective
clients.
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.
Please
confirm that the foregoing correctly sets forth the agreement between the
Company and the Underwriters.
Very
truly yours,
SLC
STUDENT LOAN TRUST 20__-__
By:
SLC Student Loan Receivables I, Inc.,
as
Depositor
By:
Name:
Title:
THE
STUDENT LOAN CORPORATION
By:
Name:
Title:
Confirmed
as of the date first
above
mentioned.
____________________,
acting on
behalf of itself and as Representative
of the
Underwriters
By:
Name:
Title:
SCHEDULE
A
|
UNDERWRITER
|
||||
|
NOTES
|
__________
|
__________
|
__________
|
__________
|
|
Class
A
|
$__________
|
$__________
|
$__________
|
$__________
|
|
PRICE
TO PUBLIC
|
UNDERWRITING
DISCOUNT |
PROCEEDS
TO
DEPOSITOR |
CONCESSION
|
RE-ALLOWANCE
|
|
____%
|
____%
|
____%
|
____%
|
____%
|