SLM FUNDING LLC
STUDENT LOAN-BACKED NOTES
-----------------
UNDERWRITING AGREEMENT
FOR PUBLICLY OFFERED NOTES
October 21, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial Center
10th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
From time to time the Student Loan Marketing Association ("▇▇▇▇▇▇
Mae"), a corporation formed under the laws of the United States, and SLM Funding
LLC, a Delaware limited liability company and a wholly-owned subsidiary of
▇▇▇▇▇▇ ▇▇▇ (the "Company"), propose to enter into one or more Pricing Agreements
(each a "Pricing Agreement") in the form of Annex I hereto, with such additions
and deletions as the parties thereto may determine. Subject to the terms and
conditions stated herein and therein, the Company proposes to cause the Trust
specified in the applicable Pricing Agreement to issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (each firm constituting
the "Underwriter" with respect to such Pricing Agreement and the securities
specified therein) certain of such Trust's Student Loan-Backed Notes (the
"Notes") specified in Schedule II to such Pricing Agreement (with respect to
such Pricing Agreement, the "Designated Securities"), less the principal amount
of Designated Securities covered by Delayed Delivery Contracts, if any, as
provided in Section 3 hereof and as may be specified in Schedule II to such
Pricing Agreement (with respect to such Pricing
Agreement, any Designated Securities to be covered by Delayed Delivery Contracts
are herein sometimes referred to as "Contract Securities" and the Designated
Securities to be purchased by the Underwriters (after giving effect to the
deduction, if any, for Contract Securities) are herein sometimes referred to as
"Underwriters' Securities").
The Securities may be sold from time to time in one or more Series.
Each Series of Securities, which will include one or more classes of Notes and
may include one or more classes of Student Loan-Backed Certificates (the
"Certificates," and, together with the Notes, the "Securities") will be issued
by a Trust to be formed with respect to such Series (each, a "Trust"). Each
Trust will be formed pursuant to a trust agreement (a "Trust Agreement") to be
entered into between the Company, the Eligible Lender Trustee specified in the
related Pricing Agreement (the "Eligible Lender Trustee") and the Indenture
Trustee (defined below). The Notes of each Series will be issued and secured
pursuant to an indenture (an "Indenture") between the Trust and the Indenture
Trustee specified in the related Pricing Agreement (the "Indenture Trustee").
The Certificates of a Series will be issued pursuant to the related Trust
Agreement and will represent fractional undivided interests in the Trust created
thereby. The property of each Trust will include, among other things,
educational student loans to students and/or parents of dependent students made
under the Federal Family Education Loan Program ("Student Loans").
With respect to each Trust, (i) the Company will acquire the related
Student Loans from ▇▇▇▇▇▇ Mae pursuant to a Purchase Agreement and (ii) the
Company will sell the related Student Loans to such Trust pursuant to a Sale
Agreement, with the related Eligible Lender Trustee holding legal title thereto.
With respect to each Series, ▇▇▇▇▇▇ ▇▇▇ Servicing L.P., as servicer (the
"Servicer") will enter into a servicing agreement (a "Servicing Agreement") with
the Trust, the Administrator, the Eligible Lender Trustee and the Indenture
Trustee with respect to the related Student Loans. ▇▇▇▇▇▇ Mae, as administrator
(in such capacity, the "Administrator"), has entered into a Master
Administration Agreement with the Company dated as of May 1, 1997 and, as
contemplated by the terms of the Master Administration Agreement, will enter
into an Administration Agreement Supplement among the Company, the Trust, the
Eligible Lender Trustee, the Servicer and the Indenture Trustee with respect to
the Student Loans to be held by the Trust (the Master Administration Agreement,
as supplemented by the Administration Agreement Supplement, the "Administration
Agreement").
The terms and conditions of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the related Indenture.
Capitalized terms used but not defined herein or in any Pricing
Agreement shall have the meanings ascribed thereto in the related Indenture.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriter of such Securities, for whom the firms
designated as representatives of the Underwriter of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation of
any of the Underwriters to purchase the Securities. The obligation of the
Company
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to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriter of such Designated Securities,
the names of the Underwriter of such Designated Securities, the names of the
Representatives of such Underwriter and the principal amount of such Designated
Securities to be purchased by each Underwriter and whether any of such
Designated Securities shall be covered by Delayed Delivery Contracts (as defined
in Section 3 hereof) and shall set forth the date, time and manner of delivery
of such Designated Securities and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company and ▇▇▇▇▇▇ ▇▇▇ represent and warrant to, and agree
with, each of the Underwriters as follows (it being agreed and understood that
the statements set forth in clauses (d), (e), (g), (h), (j), (k), (m), (n) and
(o) of this Section 2 with respect to ▇▇▇▇▇▇ Mae or the Servicer constitute
representations, warranties and agreements of ▇▇▇▇▇▇ ▇▇▇ only and not of the
Company):
(a) A registration statement on Form S-3 (File No.
333-104887), including a form of prospectus, in respect of the
Securities has been filed with the Securities and Exchange Commission
(the "Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives
for each of the other Underwriters, have been declared effective by the
Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein
has heretofore been filed or transmitted for filing with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of
such registration statement has been issued and no proceeding for that
purpose has been initiated or, to the best of ▇▇▇▇▇▇ Mae's or the
Company's knowledge, threatened by the Commission (any preliminary
prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(b) under the Act, is hereinafter called
a "Preliminary Prospectus;" the various parts of such registration
statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration
statement became effective but excluding Form T-1, each as amended at
the time such part of the registration statement became effective, are
hereinafter collectively called the "Registration Statement"; the
prospectus relating to the
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Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of
this Agreement, being hereinafter called the "Prospectus;" any
reference herein to any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of
the date of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Sections 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act, the Exchange Act and the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), as applicable, and
the rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements
of the Act, the Exchange Act and the Trust Indenture Act, as
applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Designated
Securities;
(c) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to
the requirements of the Act and the Trust Indenture Act, as applicable,
and the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any
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amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Designated Securities;
(d) Neither ▇▇▇▇▇▇ ▇▇▇ or any of its subsidiaries, taken
as a whole, nor the Company has sustained since the date of the
financial statements included as Appendix A to the SLM Corporation most
recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q
filed with the Commission, as applicable, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in such financial statements; and,
since such date, there has not been any material adverse change in the
capital stock or long-term debt of ▇▇▇▇▇▇ Mae or any of its
subsidiaries, taken as a whole, or the Company or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of ▇▇▇▇▇▇ ▇▇▇
or any of its subsidiaries, taken as a whole, or the Company, or the
transactions contemplated hereby, otherwise than as set forth or
contemplated in such financial statements and the related filings,
including changes arising out of or relating to the privatization of
▇▇▇▇▇▇ Mae and the winding-down of its operations and changes set forth
or contemplated in the SLM Corporation Current Report on Form 8-K,
filed with the Commission on October 16, 2003;
(e) The Company has been duly formed and is validly
existing as a limited liability company in good standing under the laws
of the State of Delaware, with power and authority to own its
properties and conduct its business as described in the Prospectus and
to consummate the transactions contemplated therein and herein, and is
a wholly-owned subsidiary of ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇ ▇▇▇ has been duly
organized and is validly existing under the laws of the United States,
with power and authority (corporate and otherwise) to own its
properties and conduct its business as described in the Prospectus and
to consummate the transactions contemplated therein and herein. The
Servicer has been duly formed and is validly existing as a limited
partnership in good standing under the laws of the State of Delaware,
with power and authority (limited partnership and other) to own its
properties and conduct its business as described in the Prospectus and
to consummate the transactions contemplated therein and herein, and is
a wholly-owned subsidiary of ▇▇▇▇▇▇ Mae;
(f) All of the equity interests of the Company have been
duly and validly authorized and and are owned beneficially and of
record by ▇▇▇▇▇▇ ▇▇▇;
(g) This Agreement has been, and each Pricing Agreement
with respect to the Designated Securities upon its execution and
delivery by the Company and ▇▇▇▇▇▇ Mae will have been, duly authorized,
executed and delivered by the Company and ▇▇▇▇▇▇ ▇▇▇.
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The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, and, in
the case of any Contract Securities, pursuant to Delayed Delivery
Contracts with respect to such Contract Securities, such Designated
Securities and Contract Securities will have been duly executed,
authenticated, issued and delivered. The Designated Securities will
constitute valid and legally binding obligations of the related Trust
entitled to the benefits provided by the Indenture, which will be
substantially in the form filed as an exhibit to the Registration
Statement. The Indenture has been duly authorized and duly qualified
under the Trust Indenture Act. The related Certificates are intended to
represent undivided ownership interests in the Trust created by the
Trust Agreement, which will be substantially in the form filed as an
exhibit to the Registration Statement, and will be entitled to the
benefits provided by the Trust Agreement. At the Time of Delivery (as
defined in Section 4 hereof) for the Designated Securities, the
Indenture and the Trust Agreement will each constitute a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles. The Indenture and
Trust Agreement conform, and the Designated Securities and the related
Certificates will conform, to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to the Designated
Securities;
(h) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the Securities,
the Indenture, the Trust Agreement, each of the Delayed Delivery
Contracts, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or ▇▇▇▇▇▇ Mae is a party or by which
the Company or ▇▇▇▇▇▇ ▇▇▇ is bound or to which any of the property or
assets of the Company or ▇▇▇▇▇▇ Mae is subject, nor will such action
result in any violation of the provisions of the Company's Certificate
of Formation or Limited Liability Company Operating Agreement, ▇▇▇▇▇▇
Mae's charter, enabling legislation or By-laws, or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or ▇▇▇▇▇▇ Mae or any of their
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or
the consummation by the Company or ▇▇▇▇▇▇ ▇▇▇ of the transactions
contemplated by this Agreement or any Pricing Agreement or the
Indenture or any Delayed Delivery Contract, except such as have been,
or will have been prior to the Time of Delivery, obtained under the Act
and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Designated Securities by the Underwriter;
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(i) The statements set forth in the Prospectus under the
captions "Description of the Notes" and "Description of the
Certificates" and set forth in the Prospectus Supplement under the
caption "Description of the Notes," insofar as they purport to
constitute a summary of the terms of the Notes and the Certificates,
are accurate, complete and fair;
(j) ▇▇▇▇▇▇ Mae is not in violation of its charter as set
forth in its enabling legislation or By-laws, and the Company is not in
violation of its Certificate of Formation or Limited Liability Company
Operating Agreement, and neither ▇▇▇▇▇▇ ▇▇▇ nor the Company is in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound;
(k) Other than as set forth in the Prospectus or in SLM
Corporation's most recent Annual Report on Form 10-K, Quarterly Report
on Form 10-Q or Current Report on Form 8-K filed with the Commission,
as applicable, there are no legal or governmental proceedings pending
to which the Company or ▇▇▇▇▇▇ Mae or any of its subsidiaries is a
party or of which any property of the Company or ▇▇▇▇▇▇ ▇▇▇ or any of
its subsidiaries is the subject which, if determined adversely to the
Company or ▇▇▇▇▇▇ Mae and any of its subsidiaries, taken as a whole,
would individually or in the aggregate have a material adverse effect
on the current or future consolidated financial position, shareholders'
equity or results of operations of ▇▇▇▇▇▇ ▇▇▇ and any of its
subsidiaries, taken as a whole, or the Company, or on the consummation
of the transactions contemplated hereby; and, to the best of the
Company's and ▇▇▇▇▇▇ Mae's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(l) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended;
(m) Neither the Company, ▇▇▇▇▇▇ ▇▇▇ nor any of their
affiliates does business with the government of Cuba or with any person
or affiliate located in Cuba within the meaning of Section 517.075,
Florida Statutes;
(n) PricewaterhouseCoopers LLP are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(o) At the Time of Delivery of the Designated Securities,
▇▇▇▇▇▇ Mae's representations and warranties in the related Purchase
Agreement and the Administration Agreement, the Company's
representations and warranties in the related Sale Agreement and Trust
Agreement and the Servicer's representations and warranties in the
Servicing Agreement will be true and correct in all material respects;
and
(p) In the event any of the Securities are purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery
Contracts has been duly authorized by the Company and ▇▇▇▇▇▇ ▇▇▇ and,
when executed and delivered by the Company and the
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purchaser named therein, will constitute a valid and legally binding
agreement of the Company enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and any Delayed
Delivery Contracts conform to the description thereof in the
Prospectus.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
the Underwriters' Securities, the several Underwriters propose to offer such
Underwriters' Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Company may specify in Schedule II to the Pricing Agreement
applicable to any Designated Securities that the Underwriters are authorized to
solicit offers to purchase Designated Securities from the Company pursuant to
delayed delivery contracts (herein called "Delayed Delivery Contracts"),
substantially in the form of Annex III attached hereto but with such changes
therein as the Representatives and the Company may authorize or approve. If so
specified, the Underwriters will endeavor to make such arrangements, and as
compensation therefor the Company will pay to the Representatives, for the
accounts of the Underwriters, at the Time of Delivery, such commission, if any,
as may be set forth in such Pricing Agreement. Delayed Delivery Contracts, if
any, are to be with investors of the types described in the Prospectus and
subject to other conditions therein set forth. The Underwriters will not have
any responsibility with respect to the validity or performance of any Delayed
Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Designated Securities to be purchased by each Underwriter as
set forth in Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, the principal amount of Contract Securities
which the Company has been advised by the Representatives have been attributed
to such Underwriter, provided that, if the Company has not been so advised, the
amount of Contract Securities to be so deducted shall be, in each case, that
proportion of Contract Securities which the principal amount of Designated
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the total principal amount of the Designated Securities (rounded as the
Representatives may determine). The total principal amount of Underwriters'
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the total principal amount of Designated Securities set forth
in Schedule I to such Pricing Agreement less the principal amount of the
Contract Securities. The Company will deliver to the Representatives not later
than 3:30 p.m., New York City time, on the third business day preceding the Time
of Delivery specified in the applicable Pricing Agreement (or such other time
and date as the Representatives and the Company may agree upon in writing), a
written notice setting forth the principal amount of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by wire
transfer or by certified or
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official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, all in the manner and at the place and time
and date specified in such Pricing Agreement or at such other place and time and
date as the Representatives and the Company may agree upon in writing, such time
and date being herein called the "Time of Delivery" for such Securities.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of the party designated in the
Pricing Agreement relating to such Underwriters' Securities in the amount of any
compensation payable by the Company to the Underwriters in respect of any
Delayed Delivery Contracts as provided in Section 3 hereof and the Pricing
Agreement relating to such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities, and ▇▇▇▇▇▇ Mae agrees with such Underwriters that it will
cause the Company:
(a) To prepare the Prospectus as amended or supplemented
in relation to the applicable Designated Securities in a form approved
by the Representatives and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of business
on the second business day following the execution and delivery of the
Pricing Agreement relating to the applicable Designated Securities or,
if applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Designated Securities and prior
to the Time of Delivery for such Designated Securities, which amendment
or supplement shall be disapproved by the Representatives for such
Designated Securities promptly after reasonable notice thereof; to
advise the Representatives promptly of any such amendment or supplement
after such Time of Delivery and furnish the Representatives with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Designated Securities, and
during such same period to advise the Representatives, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
prospectus relating to the Designated Securities, of the suspension of
the qualification of such Designated Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the use
of any prospectus relating to the Designated Securities or suspending
any such qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
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(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Designated
Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the
distribution of such Designated Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented, in such quantities as the
Representatives may from time to time reasonably request, and, if the
delivery of a Prospectus is required at any time in connection with the
offering or sale of the Designated Securities and if at such time any
event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify
the Representatives and, upon their request, to file such document and
to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To cause the Trust to make generally available to
holders of Designated Securities, as soon as practicable, but in any
event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Trust (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158); and
(e) To apply the net proceeds of the offering and sale of
the Designated Securities and the related Certificates that it receives
in the manner set forth in the Prospectus.
6. The Company and ▇▇▇▇▇▇ ▇▇▇ covenant and agree with the several
Underwriters that the Company or ▇▇▇▇▇▇ Mae will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's and ▇▇▇▇▇▇
Mae's counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or producing any Agreement among Underwriters, this
Agreement, any Pricing Agreement, any Indenture, any Trust Agreement, any
Delayed Delivery Contracts, any Blue Sky and Legal Investment Memoranda, closing
documents (including any compilations thereof) and any other
10
documents in connection with the offering, purchase, sale and delivery of the
Designated Securities; (iii) all expenses in connection with the qualification
of the Designated Securities for offering and sale under state securities laws
as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and Legal Investment Surveys; (iv) any fees charged
by securities rating services for rating the Designated Securities; (v) the cost
of preparing the Designated Securities; (vi) the fees and expenses of the
Eligible Lender Trustee and the Indenture Trustee and any agent of the Eligible
Lender Trustee or the Indenture Trustee and the fees and disbursements of
counsel for the Eligible Lender Trustee and the Indenture Trustee in connection
with any Indenture and Trust Agreement and the Designated Securities; (vii) the
fees payable to the Luxembourg Stock Exchange in connection with listing
Designated Securities on the Luxembourg Stock Exchange; and (viii) all other
costs and expenses incident to the performance of the obligations of the Company
and ▇▇▇▇▇▇ Mae hereunder and under any Delayed Delivery Contracts that are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the reasonable discretion of the Representatives, to the
condition that all representations and warranties and other statements of the
Company and ▇▇▇▇▇▇ ▇▇▇ in or incorporated by reference in the Pricing Agreement
relating to such Designated Securities are, at and as of the Time of Delivery
for such Designated Securities, true and correct, the condition that the Company
and ▇▇▇▇▇▇ Mae shall have performed all of their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) (i) The Prospectus as amended or supplemented in
relation to the applicable Designated Securities shall have been filed
with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; (ii) no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and (iii) all
requests for additional information on the part of the Commission shall
have been complied with;
(b) Counsel for the Underwriters shall have furnished
Representatives such opinion or opinions, substantially in the form
attached hereto as Annex II(a), dated the Time of Delivery for such
Designated Securities, with respect to the Designated Securities and
such other related matters as the Representatives may reasonably
request;
(c) Internal counsel for the Company, ▇▇▇▇▇▇ ▇▇▇ and the
Servicer, satisfactory to the Representatives, shall have furnished to
the Representatives a written opinion or opinions, dated the Time of
Delivery for such Designated Securities, substantially in the form
attached hereto as Annex II(c) or as is otherwise satisfactory to the
Representatives;
11
(d) Special counsel for the Company, ▇▇▇▇▇▇ Mae and the
Servicer, satisfactory to the Representatives, shall have furnished to
the Representatives a written opinion or opinions, dated the Time of
Delivery for such Designated Securities, substantially in the form
attached hereto as Annex II(b) or as is otherwise satisfactory to the
Representatives;
(e) Counsel for the Eligible Lender Trustee, satisfactory
to the Representatives, shall have furnished to the Representatives a
written opinion or opinions, dated the Time of Delivery for such
Designated Securities, substantially in the form attached hereto as
Annex II(d) or as is otherwise satisfactory to the Representatives;
(f) Counsel for the Indenture Trustee, satisfactory to
the Representatives, shall have furnished to the Representatives a
written opinion or opinions, dated the Time of Delivery for such
Designated Securities, substantially in the form attached hereto as
Annex II(e) or as is otherwise satisfactory to the Representatives;
(g) At the time a Preliminary Prospectus relating to such
Designated Securities was distributed and on the date of the Pricing
Agreement for such Designated Securities, the independent public
accountants of the Company and ▇▇▇▇▇▇ ▇▇▇ shall have furnished to the
Representatives a letter or letters with respect to the Company, ▇▇▇▇▇▇
Mae, the statistical and financial information contained in the
Preliminary Prospectus and the Prospectus and certain agreed upon
procedures with respect to the issuance and offering of the Designated
Securities and the related Student Loans, in form and substance
satisfactory to the Representatives and in each case confirming that
such accountants are independent public accountants with the meaning of
the Act and the applicable rules and regulations thereunder;
(h) (i) Neither ▇▇▇▇▇▇ ▇▇▇ or any of its subsidiaries,
taken as a whole, nor the Company shall have sustained since the date
of the financial statements included as Appendix A to the SLM
Corporation most recent Annual Report on Form 10-K or Quarterly Report
on Form 10-Q filed with the Commission, as applicable, any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in such financial statements, and
(ii) since such date, there shall not have been any material adverse
change in the capital stock or long-term debt of ▇▇▇▇▇▇ Mae or any of
its subsidiaries, taken as a whole, or the Company or any such change,
or any development involving a prospective change, in or affecting the
general affairs, management, financial position, shareholders' equity
or results of operations of ▇▇▇▇▇▇ ▇▇▇ or any of its subsidiaries,
taken as a whole, or the Company, otherwise than as set forth or
contemplated in such financial statements and the related filings,
including changes arising out of or relating to the privatization of
▇▇▇▇▇▇ Mae and the winding-down of its operations and changes set forth
or contemplated in the SLM Corporation Current Report on Form 8-K,
filed with the Commission on October 16, 2003, the effect of which, in
any such case described in clause (i) or (ii), is in the judgment of
the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Underwriters'
12
Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(i) On or after the date of the Pricing Agreement
relating to the Designated Securities (i) no downgrading shall have
occurred in the rating accorded ▇▇▇▇▇▇ Mae's debt securities or
preferred stock by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act ("Rating Agency"), and (ii) no such
Rating Agency shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of ▇▇▇▇▇▇ Mae's debt securities;
(j) On or after the date of the Pricing Agreement
relating to the Designated Securities, there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange or any
setting of minimum prices for trading on such exchange; (ii) a general
moratorium on commercial banking activities declared by any of United
States Federal or New York State authorities; or (iii) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause (iii) in the
reasonable judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Underwriters' Securities on the terms and in the manner contemplated in
the Prospectus as theretofore amended or supplemented relating to the
Designated Securities;
(k) Each of the Company and ▇▇▇▇▇▇ ▇▇▇ shall have
furnished or caused to be furnished to the Representatives at the Time
of Delivery for the Designated Securities a certificate or certificates
of officers of the Company or ▇▇▇▇▇▇ Mae, as the case may be,
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company or ▇▇▇▇▇▇ ▇▇▇, as the
case may be, herein at and as of such Time of Delivery, as to the
performance by the Company or ▇▇▇▇▇▇ Mae, as the case may be, of all of
their obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a), (h) and (i)
of this Section and as to such other matters as the Representatives may
reasonably request;
(l) At the Time of Delivery, the aggregate principal
amount of the Underwriters' Securities as specified in the related
Pricing Agreement for the Designated Securities shall have been sold to
the Underwriters, the aggregate amount of the related Certificates, if
any, as specified in the related underwriting agreement for such
Certificates shall have been sold to the underwriters specified in such
underwriting agreement; and
(m) The Designated Securities shall be rated as set forth
in the related Prospectus by the Rating Agency (or Agencies) specified
in such Prospectus, and such Rating Agency or Agencies shall not have
placed the Designated Securities under surveillance or review with
negative implications.
8. (a) The Company and ▇▇▇▇▇▇ ▇▇▇, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to
13
which such Underwriter may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated Securities, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company and ▇▇▇▇▇▇ Mae shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company or ▇▇▇▇▇▇ ▇▇▇ by any Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to such Securities.
(b) Each Underwriter, severally and not jointly, will indemnify
and hold harmless the Company and ▇▇▇▇▇▇ Mae against any losses, claims, damages
or liabilities to which they may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Designated Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company or ▇▇▇▇▇▇ ▇▇▇ by such Underwriter through the Representatives expressly
for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the
14
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and ▇▇▇▇▇▇ Mae, on the one hand and
the Underwriters of the Designated Securities on the other from the offering of
the Designated Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and ▇▇▇▇▇▇
▇▇▇, on the one hand and the Underwriters of the Designated Securities on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and ▇▇▇▇▇▇ Mae, on the one hand, and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company and
▇▇▇▇▇▇ ▇▇▇ bear to the total underwriting discounts and commissions received by
such Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or ▇▇▇▇▇▇ Mae, on the one hand, or such
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, ▇▇▇▇▇▇ ▇▇▇ and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
15
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company and ▇▇▇▇▇▇ Mae under this
Section 8 shall be in addition to any liability which the Company and ▇▇▇▇▇▇ ▇▇▇
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Underwriters and to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company or ▇▇▇▇▇▇
Mae and to each person, if any, who controls the Company or ▇▇▇▇▇▇ ▇▇▇ within
the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Underwriters' Securities which it has agreed to purchase under the
Pricing Agreement relating to such Underwriters' Securities, the Representatives
may in their discretion arrange for themselves or another party or other parties
to purchase such Underwriters' Securities on the terms contained herein and
therein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Underwriters'
Securities, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Underwriters' Securities on such terms. In the
event that, within the respective prescribed period, the Representatives notify
the Company that they have so arranged for the purchase of such Underwriters'
Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Underwriters' Securities, the Representatives or the
Company shall have the right to postpone the Time of Delivery for such
Underwriters' Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such
16
person had originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Underwriters' Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right (i) to require
each non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such non-defaulting Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities, and, in addition, (ii)
to require each non-defaulting Underwriter to purchase its pro rata share of the
Designated Securities of such defaulting Underwriter or Underwriters for which
such arrangements have not been made (which share only shall pertain to and be
based on the principal amount of the Designated Securities which such
non-defaulting Underwriter or Underwriters previously agreed to purchase under
the Pricing Agreement relating to such Designated Securities, it being
acknowledged and agreed that such non-defaulting Underwriter or Underwriters
shall not be required to purchase a share of any class of Designated Securities
of a defaulting Underwriter or Underwriters which the non-defaulting Underwriter
or Underwriters had not previously agreed to purchase under the Pricing
Agreement relating to such Designated Securities). Nothing herein shall relieve
a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Underwriters' Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Underwriters' Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Underwriters' Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, ▇▇▇▇▇▇ Mae and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company or ▇▇▇▇▇▇ Mae or any officer or director or
controlling person of the Company or ▇▇▇▇▇▇ ▇▇▇, and shall survive delivery of
and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 or Section 7(j) hereof, the Company and ▇▇▇▇▇▇ Mae shall not then be
under any liability to any Underwriter with respect to the Designated Securities
covered by such Pricing Agreement except as provided in
17
Sections 6 and 8 hereof; but, if for any other reason Underwriters' Securities
are not delivered by or on behalf of the Company as provided herein, the Company
and ▇▇▇▇▇▇ ▇▇▇ will reimburse the Underwriters through the Representatives for
all out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Securities, but the Company and ▇▇▇▇▇▇ Mae shall then be under no further
liability to any Underwriter with respect to such Designated Securities except
as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company or ▇▇▇▇▇▇ ▇▇▇ shall be delivered or
sent by mail, telex or facsimile transmission to:
SLM Funding LLC
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
Student Loan Marketing Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company or ▇▇▇▇▇▇ Mae by the Representatives upon request. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company, ▇▇▇▇▇▇
▇▇▇ and, to the extent provided in Sections 8 and 10 hereof, the officers and
directors of the Company and ▇▇▇▇▇▇ Mae and each person who controls the
Company, ▇▇▇▇▇▇ ▇▇▇ or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
18
14. Time shall be of the essence of each Pricing Agreement. As
used herein, "business day" shall mean any day when banking institutions are
open for business in New York City, New York.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
19
IF THE FOREGOING IS IN ACCORDANCE WITH YOUR UNDERSTANDING, PLEASE SIGN
AND RETURN TO US 7 COUNTERPARTS HEREOF.
Very truly yours,
SLM FUNDING LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
STUDENT LOAN MARKETING ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Accepted as of the date hereof:
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Principal
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ AND ▇▇▇▇▇ INCORPORATED
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
ANNEX I
PRICING AGREEMENT
____________________
AS REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS NAMED ON SCHEDULE I HERETO,
C/O____________________
_______________________
_______________________
, 200_
Ladies and Gentlemen:
SLM Funding LLC, a Delaware limited liability company (the "Company"),
and the Student Loan Marketing Association, a corporation formed under the laws
of the United States ("▇▇▇▇▇▇ Mae"), propose, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated __________,
200__ (the "Underwriting Agreement"), between the Company and ▇▇▇▇▇▇ ▇▇▇, on the
one hand, and _____________ and _________________, on the other hand, that the
Company will cause the trust (the "Trust") formed pursuant to the Trust
Agreement dated as of _______, 200__ between the Company and _______, as trustee
(the "Eligible Lender Trustee"), to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Student Loan-Backed Notes (the
"Notes") specified in Schedule II hereto (the "Designated Securities"). The
Notes will be issued and secured pursuant to the Indenture, dated ___________
(the "Indenture"), between the Trust and _________, as trustee (the "Indenture
Trustee").
Each of the provisions of the Underwriting Agreement is incorporated
herein by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement,
except that each representation and warranty which refers to the Prospectus in
Section 2 of the Underwriting Agreement shall be deemed to be a representation
or warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Pricing Agreement in relation to the Prospectus as amended or
supplemented relating to the Designated Securities which are the subject of this
Pricing Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the Representatives
and on behalf of each of the Underwriters of the Designated Securities pursuant
to Section 12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
ANNEX I-1
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
cause the Trust to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto, less the principal
amount of Designated Securities covered by Delayed Delivery Contracts, if any,
as may be specified in Schedule II.
During the period beginning from the date of this Pricing Agreement for
the Designated Securities and continuing to and including [Closing Date], the
Company agrees, and ▇▇▇▇▇▇ Mae agrees that it will cause the Company, not to,
and not to permit any affiliated entity to, offer, sell, contract to sell or
otherwise dispose of, any securities (other than the Designated Securities)
collateralized by, or any securities evidencing an ownership in, Student Loans,
without the prior written consent of the Representatives.
Each Underwriter represents and agrees that (a) it has not offered or
sold and will not offer or sell any Notes to persons in the United Kingdom prior
to the expiration of the period of six months from the issue date of the Notes
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995; (b) it has only communicated
or caused to be communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in investment activity, with
the meaning of section 21 of the Financial Services and Markets Act 2000 (the
"FSMA"), received by it in connection with the issue or sale of any notes in
circumstances in which section 21(1) of the FSMA does not apply to the issuer;
and (c) it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Notes in, from or
otherwise involving the United Kingdom.
If the foregoing is in accordance with your understanding, please sign
and return to us _______ counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company and ▇▇▇▇▇▇ ▇▇▇. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be submitted to the Company and ▇▇▇▇▇▇ Mae for examination upon request,
but without warranty on the part of the Representatives as to the authority of
the signers thereof.
ANNEX I-2
Very truly yours,
SLM FUNDING LLC
By: _____________________________
Name:
Title:
STUDENT LOAN MARKETING ASSOCIATION
By: _____________________________
Name:
Title:
Accepted as of the date hereof:
BANC OF AMERICA SECURITIES LLC
By:_______________________
Name:
Title:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ AND ▇▇▇▇▇ INCORPORATED
By:_______________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:_______________________
Name:
Title:
ANNEX I-3
SCHEDULE I
PRINCIPAL AMOUNT OF DESIGNATED SECURITIES TO BE PURCHASED
UNDERWRITER CLASS ___ CLASS ___ CLASS ___
ANNEX I-4
SCHEDULE II
TITLE OF EACH CLASS OF DESIGNATED SECURITIES:
AGGREGATE PRINCIPAL AMOUNT OF EACH CLASS:
PRICE TO PUBLIC OF EACH CLASS:
PURCHASE PRICE BY UNDERWRITERS OF EACH CLASS:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
INDENTURE:
MATURITY:
INTEREST RATE:
FORM OF DESIGNATED SECURITIES:
TIME OF DELIVERY:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
ANNEX I-5
ANNEX II(a)
THE UNDERWRITERS: OUTSIDE COUNSEL OPINION
[Opinion to be issued, which will be substantially in the form provided for
SLM Student Loan Trust 2003-7]
ANNEX II-1
ANNEX II(b)
THE COMPANY, ▇▇▇▇▇▇ MAE AND THE SERVICER: INTERNAL COUNSEL OPINION
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2003-7]
ANNEX II-2
ANNEX II(c)
THE COMPANY, ▇▇▇▇▇▇ ▇▇▇ AND THE SERVICER: OUTSIDE COUNSEL OPINION
[Opinions to be issued, which together will be substantially in the form
provided for SLM Student Loan Trust 2003-7]
ANNEX II-3
ANNEX II(d)
ELIGIBLE LENDER TRUSTEE: COUNSEL OPINION
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2003-7]
ANNEX II-4
ANNEX II(e)
INDENTURE TRUSTEE: COUNSEL OPINION
[Opinion to be issued substantially in the form provided for
SLM Student Loan Trust 2003-7]
ANNEX II-5
ANNEX III
DELAYED DELIVERY CONTRACT
SLM FUNDING LLC
C/O _______________________
___________________________
___________________________
Attention: .......................... ............, 20__
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SLM Funding LLC
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
$.........
principal amount of the Company's ________ (hereinafter called the "Designated
Securities"), offered by the Company's Prospectus, dated .............., 20..,
as amended or supplemented, receipt of a copy of which is hereby acknowledged,
at a purchase price of .....% of the principal amount thereof, plus accrued
interest from the date from which interest accrues as set forth below, and on
the further terms and conditions set forth below.
The undersigned will purchase the Designated Securities from the
Company on .............., 20.. (the "Delivery Date") and interest on the
Designated Securities so purchased will accrue from .............., 20...
[THE UNDERSIGNED WILL PURCHASE THE DESIGNATED SECURITIES FROM THE
COMPANY ON THE DELIVERY DATE OR DATES AND IN THE PRINCIPAL AMOUNT OR AMOUNTS SET
FORTH BELOW:
PRINCIPAL DATE FROM WHICH
DELIVERY DATE AMOUNT INTEREST ACCRUES
------------- ------ ----------------
......................, 20.. $............. ....................., 20..
......................, 20.. $............. ....................., 20..
EACH SUCH DATE ON WHICH DESIGNATED SECURITIES ARE TO BE PURCHASED HEREUNDER IS
HEREINAFTER REFERRED TO AS A "DELIVERY DATE."(4)]
Payment for the Designated Securities which the undersigned has agreed
to purchase on [THE] [EACH] Delivery Date shall be made to the Company or its
order by certified or official bank check in .......... Clearing House funds at
the office of .........., ........., .........., or by wire transfer to a bank
account specified by the Company, on [THE] [SUCH] Delivery Date upon delivery to
the undersigned of the Designated Securities then to be purchased by the
undersigned in definitive fully registered form and in such denominations and
registered in such names as the undersigned may designate by written, telex
ANNEX III-1
or facsimile communication addressed to the Company not less than five full
business days prior to [THE] [SUCH] Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Designated Securities on [THE] [EACH] Delivery Date shall be subject to the
condition that the purchase of Designated Securities to be made by the
undersigned shall not on [THE] [SUCH] Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject. The obligation of the
undersigned to take delivery of and make payment for Designated Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Designated Securities pursuant to other contracts similar to this
contract.
[THE UNDERSIGNED UNDERSTANDS THAT UNDERWRITERS (THE "UNDERWRITERS") ARE
ALSO PURCHASING DESIGNATED SECURITIES FROM THE COMPANY, BUT THAT THE OBLIGATIONS
OF THE UNDERSIGNED HEREUNDER ARE NOT CONTINGENT ON SUCH PURCHASES]. Promptly
after completion of the sale to the Underwriters the Company will mail or
deliver to the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the Opinion of Counsel for the Company delivered to the
Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
ANNEX III-2
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts need not
be on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
Yours very truly,
_____________________________
By: _________________________
(Authorized Signature)
Name:
Title:
_____________________________
(Address)
Accepted: _____________________________, 20___
SLM FUNDING LLC
By: __________________________________________
Name:
Title:
ANNEX III-3