EXHIBIT 1.1
EXECUTION COPY
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SLC Student Loan Trust 2005-1
$2,084,738,000
Student Loan Asset-Backed Notes
UNDERWRITING AGREEMENT
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June 8, 2005
Citigroup Global Markets Inc.,
as representative of the Underwriters
390 Greenwich Street, 6th Floor
New York, New York 10013
Ladies and Gentlemen:
SLC Student Loan Trust 2005-1, a Delaware statutory trust (the "Company"),
proposes to sell to Citigroup Global Markets Inc. (the "Representative") and the
other underwriters listed on Schedule A hereto (collectively with the
Representative, the "Underwriters"), pursuant to the terms of this Underwriting
Agreement (the "Agreement"), $2,084,738,000 aggregate principal amount of its
Student Loan Asset-Backed Notes (the "Notes") in the classes and initial
principal amounts set forth on Schedule A hereto. Citibank, N.A., a national
banking association, will act as eligible lender trustee (in such capacity, the
"Eligible Lender Trustee") on behalf of the Company. The Notes will be issued
under an Indenture, to be dated as of June 15, 2005 (the "Indenture"), among the
Company, the Eligible Lender Trustee, Wachovia Bank, National Association, as
indenture trustee (the "Indenture Trustee"), and Citibank, N.A., as indenture
administrator (in such capacity, the "Indenture Administrator"). Upon issuance,
the Notes will be secured by, among other things, Trust Student Loans (as
defined in the Indenture) pledged to the Indenture Trustee and described in the
Prospectus (as defined in Section 3 below). The Trust Student Loans will be
serviced by The Student Loan Corporation, a Delaware corporation ("SLC"),
pursuant to a Servicing Agreement, to be dated as of June 15, 2005 (the
"Servicing Agreement"), between SLC, as Servicer and Administrator, and the
Company. SLC will enter into a Subservicing Agreement with Citibank USA,
National Association, a national banking association (the "Sub-Servicer"), to be
dated as of June 15, 2005 (the "Subservicing Agreement"), pursuant to which the
Sub-Servicer will act as subservicer with respect to the Trust Student Loans.
This Agreement, the Master Terms Purchase Agreement, to be dated as of
June 15, 2005 (along with the related Purchase Agreement, the "SLC Sale
Agreement"), among SLC, SLC Student Loan Receivables I, Inc. ("SLC Receivables")
and the Eligible Lender Trustee, the Master Terms Sale Agreement, to be dated as
of June 15, 2005 (along with the related Sale Agreement, the "SLC Receivables
Sale Agreement" and, collectively with the SLC Sale Agreement, the "Sale
Agreements"), among SLC Receivables, the Company and the Eligible Lender
Trustee, the Short-Form Trust Agreement, dated as of June 1, 2005, between
Wilmington
Trust Company, as owner trustee (the "Owner Trustee"), and SLC Receivables, as
depositor (in such capacity, the "Depositor"), as amended and restated pursuant
to the Amended and Restated Trust Agreement, to be dated as of June 15, 2005
(the "Trust Agreement"), between the Owner Trustee and the Depositor, the
Administration Agreement, to be dated as of June 15, 2005 (the "Administration
Agreement"), between SLC, as servicer and administrator, and the Company, the
Eligible Lender Trust Agreement, to be dated as of June 15, 2005 (the "SLC
Receivables Eligible Lender Trust Agreement"), between SLC Receivables and the
Eligible Lender Trustee, the Eligible Lender Trust Agreement, to be dated as of
June 15, 2005 (the "Company Eligible Lender Trust Agreement" and, collectively
with the SLC Receivables Eligible Lender Trust Agreement, the "Eligible Lender
Trust Agreement"), between the Company and the Eligible Lender Trustee, the
Subadministration Agreement, to be dated as of June 15, 2005 (the
"Subadministration Agreement"), between SLC, as administrator, and CitiMortgage,
Inc., as sub-administrator (the "Sub-Administrator"), the Servicing Agreement,
the Subservicing Agreement, and the Indenture shall collectively hereinafter be
referred to as the "Basic Documents".
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Indenture or the Prospectus.
The Company proposes, upon the terms and conditions set forth herein, to
sell to each of the Underwriters on the Closing Date (as hereinafter defined)
the aggregate principal amount of each class of Notes set forth next to the name
of each Underwriter on Schedule A hereto.
The Company wishes to confirm as follows this Agreement with the
Underwriters in connection with the purchase and resale of the Notes.
1. Agreements to Sell, Purchase and Resell. (a) The Company hereby
agrees, subject to all the terms and conditions set forth herein, to sell to
each of the Underwriters and, upon the basis of the representations, warranties
and agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each of the Underwriters, severally and not
jointly, agrees to purchase from the Company, such principal amount of each
class of the Notes at such respective purchase prices as are set forth next to
the name of such Underwriter on Schedule A hereto.
(b) It is understood that the Underwriters propose to offer
the Notes for sale to the public (which may include selected dealers) as set
forth in the Prospectus.
2. Delivery of the Notes and Payment Therefor. Delivery to the
Underwriters of and payment for the Notes shall be made at the office of
Cadwalader Wickersham & Taft LLP, New York, New York, at 12:00 p.m., New York
time, on June 15, 2005 (the "Closing Date"). The place of such closing and the
Closing Date may be varied by agreement between the Representative and the
Company.
The Notes will be delivered to the Underwriters against payment of the
purchase price therefor to the Company in Federal Funds, by wire transfer to an
account at a bank acceptable to the Representative, or such other form of
payment as to which the parties may agree. Unless otherwise agreed to by the
Company and the Representative, each class of Notes will be evidenced by a
single global security in definitive form deposited with the Indenture Trustee
as
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custodian for The Depository Trust Company ("DTC") and will be registered in the
name of Cede & Co. as nominee of DTC. The Notes to be delivered to the
Underwriters shall be made available to the Underwriters in New York, New York,
for inspection and packaging not later than 11:30 a.m., New York City time, on
the business day next preceding the Closing Date.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) The registration statement on Form S-3 (No. 333-118089)
including a prospectus and such amendments thereto as may have been
required to the date hereof, relating to the Notes and the offering
thereof from time to time in accordance with Rule 415 under the Securities
Act of 1933, as amended (the "Act"), has been filed with the Securities
and Exchange Commission (the "SEC" or the "Commission") and such
registration statement, as amended, has become effective; such
registration statement, as amended, and the prospectus relating to the
sale of the Notes offered thereby constituting a part thereof, as from
time to time amended or supplemented (including the base prospectus, any
prospectus supplement filed with the Commission pursuant to Rule 424(b)
under the Act, the information deemed to be a part thereof pursuant to
Rule 430A(b) under the Act, and the information incorporated by reference
therein) are respectively referred to herein as the "Registration
Statement," the "Prospectus," and the "Prospectus Supplement,"
respectively; and the conditions to the use of a registration statement on
Form S-3 under the Act, as set forth in the General Instructions to Form
S-3, and the conditions of Rule 415 under the Act, have been satisfied
with respect to the Registration Statement;
(b) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all material
respects to the requirements of the Act, the rules and regulations of the
SEC (the "Rules and Regulations") and the Trust Indenture Act of 1939, as
amended, and the rules and regulations thereunder (the "Trust Indenture
Act"), and, except with respect to information omitted pursuant to Rule
430A of the Act, did not include any untrue statement of a material fact
or, in the case of the Registration Statement, omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading and, in the case of the Prospectus, omit to state
any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and on
the date of this Agreement and on the Closing Date, the Registration
Statement and the Prospectus will conform in all material respects to the
requirements of the Act, the Rules and Regulations and the Trust Indenture
Act, and neither of such documents included or will include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the foregoing does not apply to
statements in or omissions from the Registration Statement or the
Prospectus based upon written information furnished to the Company by the
Underwriters, specifically for use therein.
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(c) The Commission has not issued and, to the best knowledge
of the Company, is not threatening to issue any order preventing or
suspending the use of the Registration Statement.
(d) As of the Closing Date, each consent, approval,
authorization or order of, or filing with, any court or governmental
agency or body which is required to be obtained or made by the Company or
its affiliates for the consummation of the transactions contemplated by
this Agreement shall have been obtained, except as otherwise provided in
the Basic Documents.
(e) The Indenture has been duly and validly authorized by the
Company and, upon its execution and delivery by the Company and assuming
due authorization, execution and delivery by the Indenture Trustee, will
be a valid and binding agreement of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally and conform in all material respects to the description thereof
in the Prospectus. The Indenture has been duly qualified under the Trust
Indenture Act with respect to the Notes.
(f) The Notes have been duly authorized by the Company and the
Notes to be issued on the Closing Date, when executed by the Company and
authenticated by the Indenture Trustee in accordance with the Indenture,
and delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will have been validly issued and delivered, and
will constitute valid and binding obligations of the Company entitled to
the benefits of the Indenture and enforceable in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance or other similar laws
relating to or affecting creditors' rights generally and court decisions
with respect thereto, and the Notes will conform in all material respects
to the description thereof in the Prospectus.
(g) The Company is a statutory trust duly organized, validly
existing and in good standing under the laws of the State of Delaware with
full power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and as conducted on
the date hereof, and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify does not have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or
results of operations of the Company.
(h) Other than as contemplated by this Agreement or as
disclosed in the Prospectus, there is no broker, finder or other party
that is entitled to receive from the Company or any of its affiliates any
brokerage or finder's fee or other fee or commission as a result of any of
the transactions contemplated by this Agreement.
(i) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened or contemplated against the
Company, or to
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which the Company or any of its properties is subject, that are not
disclosed in the Prospectus and which, if adversely decided, would
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company, or would materially and adversely affect the
ability of the Company to perform its obligations under this Agreement and
the other Basic Documents or otherwise materially affect the issuance of
the Notes or the consummation of the transactions contemplated hereby or
by the Basic Documents ("Material Adverse Effect").
(j) Neither the offer, sale or delivery of the Notes by the
Company nor the execution, delivery or performance of this Agreement or
the other Basic Documents by the Company, nor the consummation by the
Company of the transactions contemplated hereby or thereby (i) requires or
will require any consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official (except for
compliance with the securities or Blue Sky laws of various jurisdictions,
the qualification of the Indenture under the Trust Indenture Act and such
other consents, approvals or authorizations as shall have been obtained
prior to the Closing Date) or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the
organizational documents or bylaws of the Company or (ii) conflicts or
will conflict with or constitutes or will constitute a breach of, or a
default under, in any material respect, any material agreement, indenture,
lease or other instrument to which the Company is a party or by which the
Company or any of its properties may be bound, or violates or will violate
in any material respect any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Company or any of
its properties, or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company pursuant
to the terms of any agreement or instrument to which it is a party or by
which it may be bound or to which any of its properties is subject other
than as contemplated by the Basic Documents.
(k) The Company has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement and the
other Basic Documents to which it is a party; the execution and delivery
of, and the performance by the Company of its obligations under, this
Agreement and the other Basic Documents to which it is a party have been
duly and validly authorized by the Company and this Agreement and the
other Basic Documents have been duly executed and delivered by the Company
and constitute the valid and legally binding agreements of the Company,
enforceable against the Company in accordance with their respective terms,
except as the enforcement hereof and thereof may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance or other similar laws
relating to or affecting creditors' rights generally and court decisions
with respect thereto and subject to the applicability of general
principles of equity, and except as rights to indemnity and contribution
hereunder and thereunder may be limited by Federal or state securities
laws or principles of public policy.
(l) SLC's sale and contribution of Trust Student Loans to SLC
Receivables and SLC Receivables's sale and contribution of Trust Student
Loans to the Eligible Lender Trustee on behalf of the Company as of the
applicable sale date described
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in the Sale Agreements will vest in the Eligible Lender Trustee on behalf
of the Company all of the Company's right, title and interest therein,
subject to no prior lien, mortgage, security interest, pledge, adverse
claim, charge or other encumbrance.
(m) The Company's assignment of the Trust Student Loans to the
Indenture Trustee pursuant to the Indenture will vest in the Indenture
Trustee, for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
(n) The Company is not, nor as a result of the issuance and
sale of the Notes as contemplated hereunder will it become, subject to
registration as an "investment company" under the Investment Company Act
of 1940, as amended (the "1940 Act").
(o) The representations and warranties made by the Company in
any Basic Document to which the Company is a party and made in any
Officer's Certificate of the Company will be true and correct at the time
made and on and as of the applicable Closing Date.
4. Agreements of the Company. The Company agrees with each of the
Underwriters as follows:
(a) The Company will prepare a supplement to the Prospectus
setting forth the amount of the Notes covered thereby and the terms
thereof not otherwise specified in the Prospectus, the price at which the
Notes are to be purchased by the Underwriters, either the initial public
offering price or the method by which the price at which the Notes are to
be sold will be determined, the selling concessions and reallowances, if
any, and such other information as the Underwriters and the Company deem
appropriate in connection with the offering of the Notes, and the Company
will timely file such supplement to the prospectus with the SEC pursuant
to Rule 424(b) under the Act, but the Company will not file any amendments
to the Registration Statement as in effect with respect to the Notes or
any amendments or supplements to the Prospectus, unless it shall first
have delivered copies of such amendments or supplements to the
Underwriters, with reasonable opportunity to comment on such proposed
amendment or supplement or if the Underwriters shall have reasonably
objected thereto promptly after receipt thereof; the Company will
immediately advise the Underwriters or the Underwriters' counsel (i) when
notice is received from the SEC that any post-effective amendment to the
Registration Statement has become or will become effective and (ii) of any
order or communication suspending or preventing, or threatening to suspend
or prevent, the offer and sale of the Notes or of any proceedings or
examinations that may lead to such an order or communication, whether by
or of the SEC or any authority administering any state securities or Blue
Sky law, as soon as the Company is advised thereof, and will use its best
efforts to prevent the issuance of any such order or communication and to
obtain as soon as possible its lifting, if issued.
(b) If, at any time when the Prospectus relating to the Notes
is required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then
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amended or supplemented would include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend or supplement the
Prospectus to comply with the Act or the Rules and Regulations, the
Company promptly will notify the Representative of such event and will
promptly prepare and file with the SEC, at its own expense, an amendment
or supplement to such Prospectus that will correct such statement or
omission or an amendment that will effect such compliance. Neither the
Representative's consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 7 hereof.
(c) The Company will immediately inform the Underwriters (i)
of the receipt by the Company of any communication from the SEC or any
state securities authority concerning the offering or sale of the Notes
and (ii) of the commencement of any lawsuit or proceeding to which the
Company is a party relating to the offering or sale of the Notes.
(d) The Company will furnish to the Underwriters, without
charge, copies of the Registration Statement (including all documents and
exhibits thereto or incorporated by reference therein), the Prospectus,
and all amendments and supplements to such documents relating to the
Notes, in each case in such quantities as the Underwriters may reasonably
request.
(e) The Company will cooperate with the Underwriters in
listing the Class A Notes on the Irish Stock Exchange.
(f) The Company will cooperate with the Underwriters and with
their counsel in connection with the qualification of, or procurement of
exemptions with respect to, the Notes for offering and sale by the
Underwriters and by dealers under the securities or Blue Sky laws of such
jurisdictions as the Underwriters may designate and will file such
consents to service of process or other documents necessary or appropriate
in order to effect such qualification or exemptions; provided that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Notes, in any jurisdiction where it is
not now so subject.
(g) The Company consents to the use, in accordance with the
securities or Blue Sky laws of such jurisdictions in which the Notes are
offered by the Underwriters and by dealers, of the Prospectus furnished by
the Company.
(h) To the extent, if any, that the rating or ratings provided
with respect to the Notes by the rating agency or agencies that initially
rate the Notes is conditional upon the furnishing of documents or the
taking of any other reasonable actions by the Company, the Company shall
cause to be furnished such documents and such other actions to be taken.
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(i) So long as any of the Notes are outstanding, the Company
will furnish to the Underwriters (i) as soon as available, a copy of each
document relating to the Notes required to be filed with the SEC pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or any order of the SEC thereunder, and (ii) such other information
concerning the Company as the Underwriters may request from time to time.
(j) If this Agreement shall terminate or shall be terminated
after execution and delivery pursuant to any provisions hereof (otherwise
than by notice given by the Representative terminating this Agreement
pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be
terminated by the Representative because of any failure or refusal on the
part of the Company to comply with the terms or fulfill any of the
conditions of this Agreement, the Company agrees to reimburse the
Underwriters for all out-of-pocket expenses (including fees and expenses
of their counsel) reasonably incurred by it in connection herewith, but
without any further obligation on the part of the Company for loss of
profits or otherwise.
(k) The net proceeds from the sale of the Notes hereunder will
be applied substantially in accordance with the description set forth in
the Prospectus.
(l) Except as stated in this Agreement and in the Prospectus,
the Company has not taken, nor will it take, directly or indirectly, any
action designed to or that might reasonably be expected to cause or result
in stabilization or manipulation of the price of the Notes to facilitate
the sale or resale of the Notes.
(m) For a period from the date of this Agreement until the
retirement of the Notes, the Company will deliver to you the annual
statements of compliance and the annual independent certified public
accountants' reports furnished to the Indenture Trustee or the Company
pursuant to the Servicing Agreement as soon as such statements and reports
are furnished to the Indenture Trustee or the Company.
(n) On or before the Closing Date, the Company shall mark its
accounting and other records, if any, relating to the Trust Student Loans
and shall cause the Servicer, SLC and SLC Receivables to mark their
respective computer records relating to the Trust Student Loans to show
the absolute ownership by the Indenture Trustee, as eligible lender of,
and the interest of the Company in, the initial Trust Student Loans, and
the Company shall not take, or shall not permit any other person to take,
any action inconsistent with the ownership of, and the interest of the
Company in, the Trust Student Loans, other than as permitted by the Basic
Documents
(o) For the period beginning on the date of this Agreement and
ending 90 days hereafter, none of the Company and any entity affiliated,
directly or indirectly, with the Company will, without the prior written
notice to the Underwriters, offer to sell or sell notes (other than the
Notes) collateralized by FFELP Loans; provided, however, that this shall
not be construed to prevent the sale of FFELP Loans by the Company or any
entity affiliated, directly or indirectly, with the Company.
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(p) If, at the time the Registration Statement became
effective, any information shall have been omitted therefrom in reliance
upon Rule 430A under the 1933 Act, then, immediately following the
execution of this Agreement, the Company will prepare, and file or
transmit for filing with the Commission in accordance with such Rule 430A
and Rule 424(b) under the 1933 Act, copies of an amended Prospectus
containing all information so omitted.
(q) As soon as practicable, but not later than 16 months after
the date of this Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective
prior to the date of this Agreement and (iii) the date of the Company's
most recent Annual Report or Form 10-K filed with the Commission prior to
the date of this Agreement, which will satisfy the provisions of Section
11(a) of the Act.
5. Representations and Warranties of the Underwriters. Each of the
Underwriters, severally and not jointly, hereby represents and warrants to and
agrees with SLC that (A) it has 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 business 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 1965, as amended; (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
(within the meaning of section 21 of the Financial Services Markets Act 2000
(the "FSMA")), received by it in connection with the issue or sale of the Notes
in circumstances in which section 21(1) of the FSMA does not apply to the
Company; and (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.
6. Indemnification and Contribution. (a) Each of the Company and SLC
jointly and severally agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and expenses (or
actions in respect thereof) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Prospectus, or in any amendment or supplement thereto, or any
preliminary prospectus, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability, or action as such expenses are incurred, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are based
upon any untrue statement or omission or alleged untrue statement or omission
which has been made therein or omitted therefrom in reliance upon and in
conformity with the information relating to an Underwriter furnished in writing
to the Company or SLC by or on behalf of such
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Underwriter through the Representative expressly for use therein, it being
understood that the only such information furnished by any Underwriter consists
of the information described as such in Section 11 of this Agreement; provided,
however, that the indemnification contained in this paragraph (a) with respect
to any preliminary prospectus shall not inure to the benefit of an Underwriter
(or to the benefit of any person controlling an Underwriter) on account of any
such loss, claim, damage, liability or expense arising from the sale of the of
Notes by an Underwriter to any person if the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in such
preliminary prospectus was corrected in the final Prospectus and such
Underwriter sold Notes to that person without sending or giving at or prior to
the written confirmation of such sale, a copy of the final Prospectus (as then
amended or supplemented but excluding documents incorporated by reference
therein) if the Company or SLC has previously furnished sufficient copies
thereof to such Underwriter. The foregoing indemnity agreement shall be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company and SLC and its respective
trustees, directors and officers, and any person who controls the Company
or SLC within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, to the same extent as the indemnity from the Company and SLC
to the Underwriters set forth in paragraph (a) hereof, but only with
respect to information relating to such Underwriter furnished in writing
by or on behalf of such Underwriter through the Representative expressly
for use in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus therein, it
being understood that the only such information furnished by any
Underwriter consists of the information described as such in Section 11 of
this Agreement. The foregoing indemnity agreement shall be in addition to
any liability which the Underwriters may otherwise have.
(c) If any action, suit or proceeding shall be brought against
any person in respect of which indemnity may be sought pursuant to Section
6(a) or 6(b), such person (the "indemnified party") shall promptly notify
the parties against whom indemnification is being sought (the
"indemnifying parties"), but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party except to the extent that the indemnifying party is
materially prejudiced by such omission. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party). The applicable Underwriter or any such controlling
person shall have the right to employ separate counsel in any such action,
suit or proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Underwriter
or such controlling person unless (i) the indemnifying parties have agreed
in writing to pay such fees and expenses, (ii) the indemnifying parties
have failed to assume the defense and employ counsel, or (iii) the named
parties to any such action, suit or proceeding (including any impleaded
parties) include both the Underwriter or such
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controlling person and the indemnifying parties and the Underwriter or
such controlling person shall have been advised by its counsel that there
may be one or more legal defenses available to it which are different from
or additional to or in conflict with those available to the indemnifying
parties and in the reasonable judgment of such counsel it is advisable for
the Underwriter or such controlling person to employ separate counsel (in
which case the indemnifying party shall not have the right to assume the
defense of such action, suit or proceeding on behalf of the Underwriter or
such controlling person). It is understood, however, that the indemnifying
parties shall, in connection with any one such action, suit or proceeding
or separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for each Underwriter and controlling persons not
having actual or potential differing interests with such Underwriter or
among themselves, which firm shall be designated in writing by such
Underwriter, and that all such fees and expenses shall be reimbursed on a
monthly basis as provided in paragraph (a) hereof. An indemnifying party
will not, without the prior written consent of the indemnified party,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii)
does not include a statement as to, or an admission of fault, culpability
or a failure to act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under paragraphs (a) or (b) hereof in
respect of any losses, claims, damages, liabilities or expenses referred
to therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities
or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and SLC on the one hand and the
applicable Underwriter on the other hand from the offering of the Notes,
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the
relative fault of the Company and SLC on the one hand and the applicable
Underwriter on the other in connection with the statements or omissions
that resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and SLC on the one hand and an Underwriter on the
other shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Notes (before deducting expenses)
received by the Company and SLC bear to the total underwriting discounts
and commissions received by such Underwriter. The relative fault of the
Company and SLC on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company and SLC on the one hand or
11
by an Underwriter on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company, SLC and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 6 were
determined by a pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities and expenses referred
to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating any
claim or defending any such action, suit or proceeding. Notwithstanding
the provisions of this Section 6, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total
Underwriting discounts and commissions received by such Underwriter with
respect to the Notes underwritten by it exceed the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this paragraph (e) to contribute are several
in proportion to their respective underwriting obligation.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution
under this Section 6 shall be paid by the indemnifying party to the
indemnified party as such losses, claims, damages, liabilities or expenses
are incurred. The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Company and the
Underwriters set forth in this Agreement shall remain operative and in
full force and effect, regardless of (i) any investigation made by or on
behalf of the Underwriters, the Company, SLC or any person controlling any
of them or their respective directors or officers, (ii) acceptance of any
Notes and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to the Underwriters, the Company, SLC or any person
controlling any of them or their respective directors or officers, shall
be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 6.
7. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters to purchase the Notes hereunder are subject to the following
conditions precedent:
(a) All actions required to be taken and all filings required
to be made by the Company under the Act prior to the sale of the Notes
shall have been duly taken or made. At and prior to the Closing Date, no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the Underwriters, shall
be contemplated by the Commission.
12
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in or affecting the condition (financial
or other), business, properties, net worth, or results of operations of
the Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer not
contemplated by the Registration Statement, which in the opinion of the
Representative, would materially adversely affect the market for the
Notes, (ii) any downgrading in the rating of any debt securities of the
Company, SLC, SLC Receivables, the Servicer or the Sub-Servicer by any
nationally recognized statistical rating organization or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company, SLC, SLC Receivables,
the Servicer or the Sub-Servicer (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating), or (iii) any event or development which
makes any statement made in the Registration Statement or Prospectus
untrue or which, in the opinion of the Company and its counsel or the
Underwriters and their counsel, requires the filing of any amendment to or
change in the Registration Statement or Prospectus in order to state a
material fact required by any law to be stated therein or necessary in
order to make the statements therein not misleading, if amending or
supplementing the Registration Statement or Prospectus to reflect such
event or development would, in the opinion of the Representative,
materially adversely affect the market for the Notes.
(c) You shall have received an opinion addressed to you of
Cadwalader, Wickersham & Taft LLP, or other counsel satisfactory to you,
dated the Closing Date, in form and substance satisfactory to you and your
counsel with respect to the status of the Company, to each of the Sale
Agreements, the Servicing Agreement, the Administration Agreement, the
Company Eligible Lender Trust Agreement, the Indenture, the Trust
Agreement, and this Agreement and to the validity of the Notes and such
related matters as you shall reasonably request. In addition, you shall
have received an opinion addressed to you of Cadwalader, Wickersham & Taft
LLP, in its capacity as counsel for the Company, in form and substance
satisfactory to you and your counsel, concerning "true sale," "non-
consolidation" and "first perfected security interest" and certain other
issues with respect to the transfer of the Trust Student Loans from the
SLC to SLC Receivables, SLC Receivables to the Company and from the
Company to the Indenture Trustee.
(d) You shall have received an opinion addressed to you of
Cadwalader, Wickersham &Taft LLP, in its capacity as counsel for the
Company, dated the Closing Date, in form and substance satisfactory to you
and your counsel to the effect that the statements in the Prospectus under
the headings "U.S. Federal Income Tax Consequences" and "ERISA
Considerations", to the extent that they constitute statements of matters
of law or legal conclusions with respect thereto, have been prepared or
reviewed by such counsel and are correct in all material respects.
(e) You shall have received an opinion addressed to you of
Cadwalader, Wickersham &Taft LLP, in its capacity as counsel for the
Company, dated the Closing Date, in form and substance satisfactory to you
and your counsel with respect to the character of the Notes for federal
tax purposes.
13
(f) You shall have received an opinion addressed to you of
Stroock & Stroock & Lavan LLP, in its capacity as Underwriters' Counsel,
dated the Closing Date, in form and substance satisfactory to you.
(g) You shall have received an opinion addressed to you of
Cadwalader, Wickersham &Taft LLP, in its capacity as counsel for the
Company, dated the Closing Date in form and substance satisfactory to you
and your counsel with respect to the Prospectus and the Registration
Statement and certain matters arising under the Trust Indenture Act and
the 1940 Act.
(h) You shall have received opinions addressed to you of
Cadwalader, Wickersham &Taft LLP or other counsel satisfactory to you in
their capacity as counsel to SLC and SLC Receivables, each dated the
Closing Date and satisfactory in form and substance to you and your
counsel.
(i) You shall have received an opinion addressed to you of
Richards, Layton & Finger, P.A., in its capacity as counsel to the Owner
Trustee, dated the Closing Date and in form and substance satisfactory to
you and your counsel.
(j) You shall have received an opinion addressed to you of
Thacher, Proffitt & Wood LLP, in its capacity as counsel to the Indenture
Trustee, dated the Closing Date and in form and substance satisfactory to
you and your counsel, to the effect that:
(i) The Indenture Trustee is a national banking association
duly organized and validly existing under the laws of the United
States.
(ii) The Indenture Trustee has the full corporate trust power
to accept the office of indenture trustee under the Indenture and to
enter into and perform its obligations under the Indenture and each
Guarantee Agreement.
(iii) The execution and delivery of each of the Indenture and
each Guarantee Agreement, and the performance by the Indenture
Trustee of its obligations under the Indenture and each Guarantee
Agreement, have been duly authorized by all necessary action of the
Indenture Trustee and each has been duly executed and delivered by
the Indenture Trustee.
(iv) The Indenture and each Guarantee Agreement constitute
valid and binding obligations of the Indenture Trustee enforceable
against the Indenture Trustee.
(v) The execution and delivery by the Indenture Trustee of the
Indenture and each Guarantee Agreement do not require any consent,
approval or authorization of, or any registration or filing with,
any state or United States Federal governmental authority.
(vi) Each of the Notes has been duly authenticated by the
Indenture Trustee.
14
(vii) Neither the consummation by the Indenture Trustee of the
transactions contemplated in the Indenture and each Guarantee
Agreement nor the fulfillment of the terms thereof by the Indenture
Trustee will conflict with, result in a breach or violation of, or
constitute a default under any law or the charter, by-laws or other
organizational documents of the Indenture Trustee or the terms of
any indenture or other agreement or instrument known to such counsel
and to which the Indenture Trustee or any of its subsidiaries is a
party or is bound or any judgment, order or decree known to such
counsel to be applicable to the Indenture Trustee or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Indenture Trustee or any of its subsidiaries.
(viii) The Eligible Lender Trustee is an "eligible lender" for
purposes of the FFELP Program in its capacity as Indenture Trustee
with respect to Trust Student Loans held under the Indenture.
(k) You shall have received an opinion addressed to you of
Thacher, Proffitt & Wood LLP, in its capacity as counsel for the Eligible
Lender Trustee and the Indenture Administrator, in form and substance
satisfactory to you.
(l) [Intentionally Omitted]
(m) You shall have received certificates addressed to you
dated the Closing Date of any two of the Chairman of the Board, the
President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the principal financial
officer or the principal accounting officer of the Sub-Administrator in
which such officers shall state that, to the best of their knowledge after
reasonable investigation, (i) the representations and warranties of the
Sub-Administrator contained in the Subadministration Agreement are true
and correct in all material respects, that the Sub-Administrator has
complied with all agreements and satisfied all conditions on its part to
be performed or satisfied under such agreements at or prior to the Closing
Date, (ii) that they have reviewed the Prospectus and that the information
therein regarding the Sub-Administrator is fair and accurate in all
material respects, and (iii) since the date set forth in such certificate,
except as may be disclosed in the Prospectus, no Material Adverse Effect
or any development involving a prospective Material Adverse Effect in, or
affecting particularly the business or properties of the Sub-Administrator
has occurred.
(n) You shall have received certificates addressed to you
dated the Closing Date of any two of the Chairman of the Board, the
President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the principal financial
officer or the principal accounting officer of SLC, SLC Receivables and
the Servicer in which such officers shall state that, to the best of their
knowledge after reasonable investigation, (i) the representations and
warranties of SLC, SLC Receivables or the Servicer, as the case may be,
contained in the respective SLC Sale Agreement, SLC Receivables Sale
Agreement, the Servicing Agreement, the Subservicing Agreement, the
Administration Agreement and the Subadministration
15
Agreement, as applicable, are true and correct in all material respects,
that each of SLC, SLC Receivables and the Servicer has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date, (ii) that
they have reviewed the Prospectus and that the information therein
regarding SLC, SLC Receivables or the Servicer, as applicable, is fair and
accurate in all material respects, and (iii) as of the date of this
Agreement, no Material Adverse Effect or any development involving a
prospective Material Adverse Effect, in or affecting particularly the
business or properties of SLC, SLC Receivables or the Servicer, as
applicable, has occurred.
(o) You shall have received certificates addressed to you
dated the Closing Date of any two of the Chairman of the Board, the
President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the principal financial
officer or the principal accounting officer of the Sub-Servicer in which
such officers shall state that, to the best of their knowledge after
reasonable investigation, (i) the representations and warranties of the
Sub-Servicer contained in the Subservicing Agreement are true and correct
in all material respects, that the Sub-Servicer has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date, (ii) that
they have reviewed the Prospectus and that the information therein
regarding the Sub-Servicer is fair and accurate in all material respects,
and (iii) since the date set forth in such certificate, except as may be
disclosed in the Prospectus, no Material Adverse Effect or any development
involving a prospective Material Adverse Effect in, or affecting
particularly the business or properties of the Sub-Servicer has occurred.
(p) You shall have received evidence satisfactory to you that,
on or before the Closing Date, UCC-1 financing statements have been or are
being filed in the office of the Secretary of State of the States of
Delaware and New York reflecting the grant of the security interest by the
Company in the Trust Student Loans and the proceeds thereof to the
Indenture Trustee.
(q) You shall have received a certificate addressed to you
dated the Closing Date from a responsible officer acceptable to you of the
Indenture Trustee in form and substance satisfactory to you and your
counsel and to which shall be attached each Guarantee Agreement.
(r) The Underwriters shall have received on the Closing Date
from KPMG LLP, accountants to the Company, a letter dated the Closing
Date, and in form and substance satisfactory to the Representative, to the
effect that they have carried out certain specified procedures, not
constituting an audit, with respect to certain information regarding the
Trust Student Loans and setting forth the results of such specified
procedures.
(s) All the representations and warranties of the Company
contained in this Agreement and the Basic Documents shall be true and
correct in all material respects on and as of the date hereof and on and
as of the Closing Date as if made on and as of the Closing Date and the
Underwriters shall have received a certificate, dated the
16
Closing Date and signed by an executive officer of the Company to the
effect set forth in this Section 7(s) and in Section 7(t) hereof.
(t) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements
herein contained and required to be performed or complied with by it
hereunder at or prior to the Closing Date.
(u) The Underwriters shall have received by instrument dated
the Closing Date (at the option of the Representative), in lieu of or in
addition to the legal opinions referred to in this Section 7, the right to
rely on opinions provided by such counsel and all other counsel under the
terms of the Basic Documents.
(v) You shall have received certificates addressed to you
dated the Closing Date of New York State Higher Education Services
Corporation, California Student Aid Commission and United Student Aid
Funds, Inc. (each, a "Significant Guarantor") to the effect that (i) the
information in the Prospectus with respect to the applicable Significant
Guarantor does not contain any untrue statement of material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements about the Significant Guarantor therein, in the light
of the circumstances under which they are made, not misleading, and (ii)
there are no proceedings pending or overtly threatened in writing against
the Significant Guarantor in any court or before any governmental
authority or arbitration board or tribunal, wherein an unfavorable
decision, ruling or finding is likely and would materially adversely
affect the performance by the Significant Guarantor to carry on its
business substantially as now conducted.
(w) The Class A Notes shall be rated "AAA," "AAA" and "Aaa,"
respectively, by Fitch, Inc. ("Fitch"), Standard & Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc. ("S&P") and
Moody's Investors Service ("Moody's"), the Class B Notes shall be rated
"AA+," "AA+" and "Aa1," respectively, by Fitch, S&P and Moody's and that
none of Fitch, S&P or Moody's have placed the Notes under surveillance or
review with possible negative implications.
(x) The issuance of the Notes shall not have resulted in a
reduction or withdrawal by Fitch, S&P or Moody's of their then current
rating of any outstanding securities issued by the Company.
(y) You shall have received evidence satisfactory to you of
the completion of all actions necessary to effect the transfer of the
Trust Student Loans as described in the Prospectus and the recordation
thereof on SLC's, SLC Receivables' and the Sub-Servicer's computer
systems.
(z) You shall have received such further information,
certificates and documents as the Representative may reasonably have
requested, and all proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall be
in all material respects reasonably satisfactory in form and substance to
the Representative and its counsel.
17
(aa) You shall have received such other opinions, certificates
and documents as are required under the Indenture as a condition to the
issuance of the Notes.
The Company will provide or cause to be provided to you such
conformed copies of such of the foregoing opinions, notes, letters and documents
as you reasonably request.
8. Expenses. The Company agrees to pay or to otherwise cause the
payment of the following costs and expenses and all other costs and expenses
incident to the performance by it of its obligations hereunder: (i) the
preparation, printing or reproduction of the Registration Statement, the
Prospectus and each amendment or supplement to any of them, this Agreement, and
each other Basic Document; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of the Registration Statement, the Prospectus and all amendments
or supplements to any of them as may be reasonably requested for use in
connection with the offering and sale of the Notes; (iii) the preparation,
printing, authentication, issuance and delivery of definitive certificates for
the Notes; (iv) the printing (or reproduction) and delivery of this Agreement,
the preliminary and supplemental Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Notes; (v) qualification of the Indenture under the Trust Indenture Act;
(vi) the qualification of the Notes for offer and sale under the securities or
Blue Sky laws of the several states as provided in Section 3(j) hereof
(including the reasonable fees, expenses and disbursements of counsel relating
to the preparation, printing or reproduction, and delivery of the preliminary
and supplemental Blue Sky Memoranda and such qualification); (vii) the listing
of the Class A Notes on the Irish Stock Exchange; (viii) the fees and
disbursements of (A) the Company's counsel, (B) the Underwriters' counsel, (C)
the Indenture Trustee and its counsel, (D) the Owner Trustee and its counsel,
(E) DTC in connection with the book-entry registration of the Notes, (F) the SEC
and (G) KPMG LLP, accountants for the Company and issuer of the Comfort Letter;
and (viii) the fees charged by S&P, Fitch and Moody's for rating the Notes.
9. Effective Date of Agreement. This Agreement shall be deemed
effective as of the date first above written upon the execution and delivery
hereof by all the parties hereto. Until such time as this Agreement shall have
become effective, it may be terminated by the Company, by notifying the
Representative, or by the Representative, by notifying the Company.
Any notice under this Section 9 may be given by telecopy or
telephone but shall be subsequently confirmed by letter.
10. Termination of Agreement. This Agreement shall be subject to
termination in the absolute discretion of the Representative, without liability
on the part of the Underwriters to the Company, by notice to the Company, if
prior to the Closing Date (i) trading in securities generally on the New York
Stock Exchange, American Stock Exchange or the Nasdaq National Market shall have
been suspended or materially limited, (ii) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal or
state authorities, or (iii) there shall have occurred any outbreak or escalation
of hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representative, impracticable or inadvisable to commence or
18
continue the offering of the Notes on the terms set forth in the Prospectus, as
applicable, or to enforce contracts for the resale of the Notes by the
Underwriters. Notice of such termination may be given to the Company by telecopy
or telephone and shall be subsequently confirmed by letter.
11. Information Furnished by the Underwriters. The statements set
forth in the table on the cover (page 1) of the Prospectus Supplement, and in
the tables and the third, sixth (second sentence only), seventh (second and
third sentences only), tenth, eleventh and twelfth paragraphs under the heading
"Underwriting" in the Prospectus Supplement constitute the only information
furnished by or on behalf of the Underwriters as such information is referred to
in Sections 3(b) and 6 hereof.
12. Default by One of the Underwriters. If any of the Underwriters
shall fail on the Closing Date to purchase the Notes which it is obligated to
purchase hereunder (the "Defaulted Notes"), the remaining Underwriters (the
"Non-Defaulting Underwriters") shall have the right, but not the obligation,
within one (1) Business Day thereafter, to make arrangements to purchase all,
but not less than all, of the Defaulted Notes upon the terms herein set forth;
if, however, the Non-Defaulting Underwriters shall have not completed such
arrangements within such one (1) Business Day period, then this Agreement shall
terminate without liability on the part of the Non-Defaulting Underwriters.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, the Non-Defaulting Underwriters shall have the
right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
13. Computational Materials. (a) It is understood that the
Underwriters may prepare and provide to prospective investors certain
Computational Materials (as defined below) in connection with the Company's
offering of the Notes, subject to the following conditions:
(i) The Underwriters shall comply with all applicable laws and
regulations in connection with the use of Computational Materials
including the No-Action Letter of May 20, 1994 issued by the Commission to
Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co.
Incorporated and Kidder Structured Asset Corporation, as made applicable
to other issuers and underwriters by the Commission in response to the
request of the Public Securities Association dated May 24, 1994, and the
No-Action Letter of February 17, 1995 issued by the Commission to the
Public Securities Association (collectively, the "Kidder/PSA Letters").
(ii) As used herein, "Computational Materials" and the term
"ABS Term Sheets" shall have the meanings given such terms in the
Kidder/PSA Letters, but shall include only those Computational Materials
that have been prepared or delivered to prospective investors by or at the
direction of an Underwriter.
19
(iii) Each Underwriter shall provide the Company with
representative forms of all Computational Materials prior to their first
use, to the extent such forms have not previously been approved by the
Company for use by such Underwriter. Each Underwriter shall provide to the
Company, for filing on Form 8-K as provided in Section 13(b), copies of
all Computational Materials that are to be filed with the Commission
pursuant to the Kidder/PSA Letters. Each Underwriter may provide copies of
the foregoing in a consolidated or aggregated form. All Computational
Materials described in this subsection (a)(iii) must be provided to the
Company not later than 12:00 p.m., New York City time, one business day
before filing thereof is required pursuant to the terms of this Agreement.
(iv) If an Underwriter does not provide the Computational
Materials to the Company pursuant to subsection (a)(iii) above, such
Underwriter shall be deemed to have represented, as of the applicable
Closing Date, that it did not provide any prospective investors with any
information in written or electronic form in connection with the offering
of the Notes that is required to be filed with the Commission in
accordance with the Kidder/PSA Letters.
(v) In the event of any delay in the delivery by an
Underwriter to the Company of all Computational Materials required to be
delivered in accordance with subsection (a)(iii) above, the Company shall
have the right to delay the release of the Prospectus to investors or to
such Underwriter, to delay the Closing Date and to take other appropriate
actions in each case as necessary in order to allow the Company to comply
with its agreement set forth in Section 13(b) to file the Computational
Materials by the time specified therein.
(b) The Company shall file the Computational Materials (if
any) provided to it by the Underwriters under Section 13(a)(iii) with the
Commission pursuant to a Current Report on Form 8-K no later than 5:30
P.M., New York City time, on the date required pursuant to the Kidder/PSA
Letters.
14. Survival of Representations and Warranties. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement or contained in notes of officers of the Company submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation or statement as to the results thereof, made by or on
behalf of the Underwriters, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes.
15. Miscellaneous. Except as otherwise provided in Sections 6, 9 and
10 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at 750 Washington
Boulevard, 9th Floor, Stamford, Connecticut 06901, Attention: Daniel McHugh, and
(ii) if to the Underwriter, to Citigroup Global Markets Inc., 390 Greenwich
Street, 6th Floor, New York, New York 10013, Attention: Jeb Ebbott.
This Agreement has been and is made solely for the benefit of the
Underwriters, the Company, their respective directors, officers, trustees and
controlling persons referred to in
20
Section 6 hereof and their respective successors and assigns, to the extent
provided herein, and no other person shall acquire or have any right under or by
virtue of this Agreement. Neither the term "successor" nor the term "successors
and assigns" as used in this Agreement shall include a purchaser from an
Underwriter of any of the Notes in his status as such purchaser.
16. Applicable Law; Counterparts. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed within the State of New York without
giving effect to the choice of laws or conflict of laws principles thereof.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof or
thereof shall have been executed and delivered on behalf of each party hereto.
21
EXECUTION COPY
--------------
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriter.
Very truly yours,
SLC STUDENT LOAN TRUST 2005-1
By: SLC Student Loan Receivables I, Inc.,
as Depositor
By: /s/ Bradley Svalberg
---------------------------------------
Name: Bradley Svalberg
-------------------------------------
Title: Vice President and Treasurer
------------------------------------
THE STUDENT LOAN CORPORATION
By: /s/ Bradley Svalberg
---------------------------------------
Name: Bradley Svalberg
-------------------------------------
Title: Treasurer
------------------------------------
Confirmed as of the date first above mentioned.
CITIGROUP GLOBAL MARKETS INC.,
acting on behalf of itself and as Representative
of the Underwriters
By: /s/ Jeb Ebbott
---------------------------------------
Name: Jeb Ebbott
-------------------------------------
Title: Director
------------------------------------
2
SCHEDULE A
- ------------ --------------------------------------------------------------- --------- ---------------- ---------------------
NOTES UNDERWRITER PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC DISCOUNT DEPOSITOR
- ------------ --------------------------------------------------------------- --------- ---------------- ---------------------
Citigroup Global Lehman Brothers Inc. Merrill Lynch,
Markets Inc. Pierce, Fenner &
Smith Incorporated
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Class A-1 $433,200,000 $72,200,000 $216,600,000 100% 0.200% 99.800%
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Class A-2 $231,000,000 $38,500,000 $115,500,000 100% 0.250% 99.750%
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Class A-3 $230,400,000 $38,400,000 $115,200,000 100% 0.350% 99.650%
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Class A-4 $318,717,600 $53,119,600 $159,358,800 100% 0.400% 99.600%
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Class B $37,525,200 $6,254,200 $18,762,600 100% 0.400% 99.600%
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Total $1,250,842,800 $208,473,800 $625,421,400 100% $6,125,452 $2,078,612,548
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