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EXHIBIT 1.4
SLM FUNDING CORPORATION
STUDENT LOAN-BACKED CERTIFICATES
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UNDERWRITING AGREEMENT
September 16, 1996
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 Corporation, a Delaware corporation 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 (such
firms constituting the "Underwriters" with respect to such Pricing Agreement
and the securities specified therein) certain of such Trust's Student
Loan-Backed Certificates (the "Certificates") specified in Schedule II to such
Pricing Agreement (with respect to such Pricing Agreement, the "Designated
Securities"), less the 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
Certificates and one or more classes of Student Loan-Backed Notes (the "Notes,"
and, together with the Certificates, the "Securities") will be issued by a
Trust to be formed with respect to such Series (each, a "Trust"). Each Trust
will be formed pursuant to a trust agreement (a "Trust Agreement") to be
entered into between the Company and the Eligible Lender Trustee specified in
the related Pricing Agreement (the "Eligible Lender Trustee"). The Notes of
each Series will be issued and secured pursuant to an indenture (an
"Indenture") between the Trust and the Indenture Trustee specified in the
related Pricing Agreement (the "Indenture Trustee"). The Certificates of a
Series will be issued pursuant to the related Trust Agreement and will
represent fractional
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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 ("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 Corporation, 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"), will enter into an
Administration Agreement with the Eligible Lender Trustee, the Servicer, the
Company, the Trust and the Indenture Trustee with respect to the related
Student Loans.
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 Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation of
any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of
the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate amount of such Designated
Securities, the initial public offering price of such Designated Securities,
the purchase price to the Underwriters of such Designated Securities, the names
of the Underwriters of such Designated Securities, the names of the
Representatives of such Underwriters and the 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
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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.
333-2502), 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(a) under the Act, is hereinafter called
a "Preliminary Prospectus;" the various parts of such registration
statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration
statement became effective but excluding Form T-1, each as amended at
the time such part of the registration statement became effective, are
hereinafter collectively called the "Registration Statement"; the
prospectus relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus 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
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deemed to refer to and include any annual report of the Company
filed pursuant to Sections 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to
the Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act, the Exchange Act and the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), as applicable, and
the rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements
of the Act, the Exchange Act and the Trust Indenture Act, as
applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Designated
Securities;
(c) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act, as applicable, and
the rules and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing
date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements 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;
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(d) Neither the Company nor ▇▇▇▇▇▇ ▇▇▇ or any of its
subsidiaries has sustained since the date of the financial statements
included in ▇▇▇▇▇▇ Mae's most recently published Information Statement
any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in such
Information Statement; and, since such date, there has not been any
material adverse change in the capital stock or long-term debt of the
Company or ▇▇▇▇▇▇ ▇▇▇ or any of its subsidiaries or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of
the Company or ▇▇▇▇▇▇ Mae or any of its subsidiaries or the
transactions contemplated hereby, otherwise than as set forth or
contemplated in such Information Statement;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state
of Delaware, with power and authority (corporate 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 ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇ ▇▇▇ 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 incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus and to
consummate the transactions contemplated therein and herein, and is a
wholly-owned subsidiary of ▇▇▇▇▇▇ Mae.
(f) All of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable and are owned beneficially and of record by
▇▇▇▇▇▇ ▇▇▇;
(g) This Agreement has been, and each Pricing Agreement
with respect to the Designated Securities upon its execution and
delivery by the Company and ▇▇▇▇▇▇ Mae will have been, duly authorized,
executed and delivered by the Company and ▇▇▇▇▇▇ ▇▇▇. The Securities
have been duly authorized, and, when Designated Securities are issued
and delivered pursuant to this Agreement and the Pricing Agreement with
respect to such Designated Securities, and, in the case of any Contract
Securities, pursuant to Delayed Delivery Contracts with respect to such
Contract Securities, such Designated Securities and Contract Securities
will have been duly executed, authenticated, issued and delivered. The
related Notes 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
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Indenture Act. The Designated Securities 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 4hereof) 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 Notes 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 Incorporation or By-▇▇▇▇, ▇▇▇▇▇▇ 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
Underwriters;
(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 Securities," 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 Incorporation or By-laws, and neither
▇▇▇▇▇▇ ▇▇▇ nor the Company is in default in the
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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 ▇▇▇▇▇▇
Mae's most recently published Information Statement, there are no legal
or governmental proceedings pending to which the Company or ▇▇▇▇▇▇ ▇▇▇
or any of its subsidiaries is a party or of which any property of the
Company or ▇▇▇▇▇▇ Mae or any of its subsidiaries is the subject which,
if determined adversely to the Company or ▇▇▇▇▇▇ ▇▇▇ or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company
or ▇▇▇▇▇▇ Mae or any of its subsidiaries or on the consummation of the
transactions contemplated hereby; and, to the best of the Company's and
▇▇▇▇▇▇ Mae's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(l) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(m) Neither the Company, ▇▇▇▇▇▇ Mae 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) Ernst & Young LLP, who have certified certain
financial statements of ▇▇▇▇▇▇ ▇▇▇, 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 Administration Agreement, the Company's representations
and warranties in the related Sale Agreement and Trust Agreement and
the Servicer's representations and warranties in the Servicing
Agreement will be true and correct in all material respects; and
(p) In the event any of the Securities are purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery
Contracts has been duly authorized by the Company and ▇▇▇▇▇▇ ▇▇▇ and,
when executed and delivered by the Company and the purchaser named
therein, will constitute a valid and legally binding agreement of the
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.
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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 amount of Contract Securities to be deducted from the 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 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 amount of Designated Securities to be purchased
by such Underwriter under such Pricing Agreement bears to the total amount of
the Designated Securities (rounded as the Representatives may determine). The
total amount of Underwriters' Securities to be purchased by all the
Underwriters pursuant to such Pricing Agreement shall be the total amount of
Designated Securities set forth in Schedule I to such Pricing Agreement less
the 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 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 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
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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 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 Notes 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
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printing or producing any Agreement among Underwriters, this Agreement, any
Pricing Agreement, any Indenture, any Trust Agreement, any Delayed Delivery
Contracts, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Designated Securities; (iii)
all expenses in connection with the qualification of the Designated Securities
for offering and sale understate 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; and (vii) all other costs and expenses
incident to the performance of its obligations hereunder and under any Delayed
Delivery Contracts which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on resale of
any of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the reasonable discretion of the Representatives, to the
condition that all representations and warranties and other statements of the
Company and ▇▇▇▇▇▇ Mae in or incorporated by reference in the Pricing Agreement
relating to such Designated Securities are, at and as of the Time of Delivery
for such Designated Securities, true and correct, the condition that the
Company and ▇▇▇▇▇▇ ▇▇▇ shall have performed all of their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation
to the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with;
(b) Counsel for the Underwriters shall have furnished to
the 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, and the Company and ▇▇▇▇▇▇ Mae shall have furnished or caused
to
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be furnished to such counsel such documents and information as they may
reasonably request to pass upon such matters;
(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(b) or as is otherwise satisfactory to the
Representatives;
(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(c) 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, as the case may be, and
certain agreed upon procedures with respect to the issuance and
offering of the Designated Securities and the related Student Loans, in
form and substance satisfactory to the Representatives and in each case
confirming that such accountants are independent public accountants
with the meaning of the Act and the applicable rules and regulations
thereunder;
(h) (i) Neither the Company nor ▇▇▇▇▇▇ ▇▇▇ shall have
sustained since the date of the financial statements included in ▇▇▇▇▇▇
Mae's most recently published Information Statement any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in such Information Statement, and
(ii) since such date, there shall not have been any material adverse
change in the capital stock or long-term debt of the Company or ▇▇▇▇▇▇
Mae or any such change, or any development involving a prospective such
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company
or ▇▇▇▇▇▇ ▇▇▇
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otherwise than as set forth or contemplated in such Information
Statement, the effect of which, in any such case described in clause (i)
or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Underwriters' Securities on
the terms and in the manner contemplated in the Prospectus as first
amended or supplemented relating to the Designated Securities;
(i) On or after the date of the Pricing Agreement relating
to the Designated Securities (i) no downgrading shall have occurred in
the rating accorded ▇▇▇▇▇▇ Mae's debt securities or preferred stock by
any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act ("Rating Agency"), and (ii) no such Rating Agency shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of ▇▇▇▇▇▇ Mae's debt
securities;
(j) On or after the date of the Pricing Agreement relating
to the Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or any setting of
minimum prices for trading on such exchange; (ii) a general moratorium
on commercial banking activities declared by either Federal or New York
State authorities; or (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this clause (iii) in the reasonable judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Underwriters' Securities on the terms
and in the manner contemplated in the Prospectus as theretofore amended
or supplemented relating to the Designated Securities;
(k) Each of the Company and ▇▇▇▇▇▇ Mae shall have
furnished or caused to be furnished to the Representatives at the Time
of Delivery for the Designated Securities a certificate or certificates
of officers of the Company or ▇▇▇▇▇▇ ▇▇▇, as the case may be,
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company or ▇▇▇▇▇▇ Mae, as the
case may be, herein at and as of such Time of Delivery, as to the
performance by the Company or ▇▇▇▇▇▇ ▇▇▇, 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 amount of the
Underwriters' Securities as specified in the related Pricing Agreement
for the Designated Securities shall have been sold by the Company to
the Underwriters, and the aggregate principal amount of the related
Notes as specified in the related underwriting agreement for such Notes
shall have been sold by the Company to the underwriters specified in
such underwriting agreement; and
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(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 ▇▇▇▇▇▇ Mae, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Designated Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company and
▇▇▇▇▇▇ ▇▇▇ 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 ▇▇▇▇▇▇ Mae 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 will indemnify and hold harmless the Company
and ▇▇▇▇▇▇ ▇▇▇ 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 ▇▇▇▇▇▇ Mae by
such Underwriter through the Representatives expressly for use therein; and
will reimburse the Company for any legal or other expenses
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15
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 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 ▇▇▇▇▇▇ ▇▇▇, 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 ▇▇▇▇▇▇ Mae, 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,
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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 ▇▇▇▇▇▇ ▇▇▇, 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 ▇▇▇▇▇▇ Mae 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 ▇▇▇▇▇▇ ▇▇▇, 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, ▇▇▇▇▇▇ Mae and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company and ▇▇▇▇▇▇ ▇▇▇ under this
Section 8 shall be in addition to any liability which the Company and ▇▇▇▇▇▇
Mae may otherwise have and shall extend, upon the same terms and conditions, 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 ▇▇▇▇▇▇ ▇▇▇ and to each person, if any, who controls
the Company or ▇▇▇▇▇▇ Mae 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
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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 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 amount of such Underwriters' Securities which remains unpurchased
does not exceed one-eleventh of the aggregate amount of the Designated
Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the amount of Underwriters' Securities
which such Underwriter agreed to purchase under the Pricing Agreement relating
to such Designated Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the amount of Designated
Securities which such Underwriter agreed to purchase under such Pricing
Agreement) of the Underwriters' Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but 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 amount of Underwriters' Securities which remains unpurchased exceeds
one-eleventh of the aggregate 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.
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10. The respective indemnities, agreements, representations,
warranties and other statements of the Company,▇▇▇▇▇▇ ▇▇▇ 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 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 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, except for any of the reasons
specified in Section 7(j), 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 Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Student Loan Marketing Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and Treasurer
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.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business and "New York 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.
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IF THE FOREGOING IS IN ACCORDANCE WITH YOUR UNDERSTANDING, PLEASE SIGN
AND RETURN TO US ___ COUNTERPARTS HEREOF.
Very truly yours,
SLM FUNDING CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
..................................
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer and Controller
STUDENT LOAN MARKETING ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
..................................
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Accepted as of the date hereof:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
..................................
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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ANNEX I
PRICING AGREEMENT
-------------------------
AS REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS NAMED ON SCHEDULE I HERETO,
C/O
----------------------
--------------------------
--------------------------
, 1995
Ladies and Gentlemen:
SLM Funding Corporation, a Delaware corporation (the "Company"), and
the Student Loan Marketing Association, a corporation formed under the laws of
the United States ("▇▇▇▇▇▇ ▇▇▇"), propose, subject to the terms and conditions
stated herein and in the Underwriting Agreement, dated __________, 199__ (the
"Underwriting Agreement"), between the Company and ▇▇▇▇▇▇ Mae, on the one hand,
and _______________ and ________________, on the other hand, that the Company
will cause the trust (the "Trust") formed pursuant to the Trust Agreement dated
_______, 199__ 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 Certificates (the
"Certificates") specified in Schedule II hereto (the "Designated Securities").
The Certificates will be issued pursuant to the Trust Agreement.
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.
22
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 amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto, less the 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 the later of (i) [___
days after] the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Representatives and (ii) [__ days
after] the Time of Delivery for such Designated Securities, the Company agrees,
and ▇▇▇▇▇▇ ▇▇▇ agrees that it will cause the Company, not to, and not to permit
any affiliated entity to, offer, sell, contract to sell or otherwise dispose
of, any securities (other than the Designated Securities) evidencing an
ownership in, or any securities (other than the related Notes) collateralized
by, 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 or Certificates to persons in the
United Kingdom prior to the expiration of the period of six months from the
issue date of the Notes and the Certificates 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 complied and will comply with
all applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ with respect to
anything done by it in relation to the Notes and the Certificates in, from or
otherwise involving the United Kingdom; and (c) it has only issued or passed on
and will only issue or pass on in the United Kingdom any document received by
it in connection with the issuance of the Notes and the Certificates to a
person who is of a kind described in article 11(3) of the Financial Services
▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1995 or is a person to
whom such document may otherwise lawfully be issued or passed on.
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 ▇▇▇▇▇▇ Mae. 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
2
23
which shall be submitted to the Company and ▇▇▇▇▇▇ ▇▇▇ for examination upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
SLM FUNDING CORPORATION
By:
.................................
Name:
Title:
STUDENT LOAN MARKETING ASSOCIATION
By:
.................................
Name:
Title:
3
24
Accepted as of the date hereof:
[______________________]
By:
.................................
[______________________]
By:
.................................
Name:
Title:
On behalf of each of the Underwriters
4
25
SCHEDULE I
AMOUNT OF DESIGNATED SECURITIES TO BE PURCHASED
UNDERWRITER CLASS CLASS CLASS
--- --- ---
26
SCHEDULE II
TITLE OF EACH CLASS OF DESIGNATED SECURITIES:
AGGREGATE 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:
RETURN 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.:
27
ANNEX II(a)
UNDERWRITER: COUNSEL OPINION
28
ANNEX II(b)
THE COMPANY, ▇▇▇▇▇▇ MAE AND THE SERVICER: INTERNAL COUNSEL OPINION
29
ANNEX II(c)
THE COMPANY, ▇▇▇▇▇▇ ▇▇▇ AND THE SERVICER: OUTSIDE COUNSEL OPINION
30
ANNEX II(d)
ELIGIBLE LENDER TRUSTEE/INTERIM ELIGIBLE LENDER TRUSTEE: COUNSEL OPINION
31
ANNEX II(e)
INDENTURE TRUSTEE: COUNSEL OPINION
32
ANNEX III
DELAYED DELIVERY CONTRACT
SLM FUNDING CORPORATION
C/O
--------------------------
-----------------------------
-----------------------------
Attention:..................... ........................, 19__
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SLM Funding Corporation
(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 .............., 19..,
as amended or supplemented, receipt of a copy of which is hereby acknowledged,
at a purchase price of .....% of the 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 .............., 19.. (the "Delivery Date") and interest on the
Designated Securities so purchased will accrue from .............., 19...
[THE UNDERSIGNED WILL PURCHASE THE DESIGNATED SECURITIES FROM THE
COMPANY ON THE DELIVERY DATE OR DATES AND IN THE AMOUNT OR AMOUNTS SET FORTH
BELOW:
DATE FROM WHICH
DELIVERY DATE AMOUNT INTEREST ACCRUES
------------- ------ ----------------
....................., 19.. $............. ....................., 19..
....................., 19.. $............. ....................., 19..
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
33
undersigned of the Designated Securities then to be purchased by the
undersigned in definitive fully registered form and in such denominations and
registered in such names as the undersigned may designate by written, telex or
facsimile communication addressed to the Company not less than five full
business days prior to [THE] [SUCH] Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Designated Securities on [THE] [EACH] Delivery Date shall be subject to the
condition that the purchase of Designated Securities to be made by the
undersigned shall not on [THE] [SUCH] Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject. The obligation of the
undersigned to take delivery of and make payment for Designated Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Designated Securities pursuant to other contracts similar to this
contract.
[THE UNDERSIGNED UNDERSTANDS THAT UNDERWRITERS (THE "UNDERWRITERS") ARE
ALSO PURCHASING DESIGNATED SECURITIES FROM THE COMPANY, BUT THAT THE
OBLIGATIONS OF THE UNDERSIGNED HEREUNDER ARE NOT CONTINGENT ON SUCH PURCHASES].
Promptly after completion of the sale to the Underwriters the Company will mail
or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the Opinion of Counsel for the Company
delivered to the Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
F-2
34
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: .................., 19..
SLM FUNDING CORPORATION
By: ..............................
Name:
Title:
F-3
