Exhibit 1.1
SLM Education Credit Funding LLC
Student Loan-Backed Notes
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Underwriting Agreement
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March 16, 2004
J.P. Morgan Securities Inc.
270 Park Avenue
10th Floor
New York, New York 10017
Merrill Lynch, Pierce, Fenner & Smith Incorporated
4 WFCN, 10th Floor
New York, New York 10080
Ladies and Gentlemen:
From time to time, SLM Education Credit Finance Corporation, a Delaware
corporation, formerly known as SLM Education Credit Management Corporation ("SLM
Education Credit"), and SLM Education Credit Funding LLC, a Delaware limited
liability company and a wholly-owned subsidiary of SLM Education Credit (the
"Company"), propose to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine.
Subject to the terms and conditions stated herein and therein, the Company
proposes to cause the Trust specified in the applicable Pricing Agreement to
issue and sell to the firms named in Schedule I to the applicable Pricing
Agreement (each firm constituting the "Underwriter" with respect to such Pricing
Agreement and the securities specified therein) certain of such Trust's Student
Loan-Backed Notes (the "Notes") specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the "Designated Securities"),
less the principal amount of Designated Securities covered by Delayed Delivery
Contracts, if any, as provided in Section 3 hereof and as may be specified in
Schedule II to such Pricing Agreement (with respect to such Pricing Agreement,
any Designated Securities to be covered by Delayed Delivery Contracts are herein
sometimes referred to as "Contract Securities" and the Designated Securities to
be purchased by the Underwriters (after giving effect to the deduction, if any,
for Contract Securities) are herein sometimes referred to as "Underwriters'
Securities").
The Securities may be sold from time to time in one or more Series. Each
Series of Securities, which will include one or more classes of Notes and may
include one or more classes of Student Loan-Backed Certificates (the
"Certificates," and, together with the Notes, the "Securities") will be issued
by a Trust to be formed with respect to such Series (each, a "Trust").
Each Trust will be formed pursuant to a trust agreement (a "Trust Agreement") to
be entered into between the Company and the Trustee specified in the related
Pricing Agreement (the "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 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 SLM Education Credit pursuant to a Seller Sale Agreement and
(ii) the Company will sell the related Student Loans to such Trust pursuant to a
Depositor Sale Agreement. With respect to each Series, Sallie Mae, Inc., as
servicer (the "Servicer"), will enter into a servicing agreement (a "Servicing
Agreement") with the Trust, the Administrator, the Trustee and the Indenture
Trustee with respect to the related Student Loans. Sallie Mae, Inc. ("Sallie
Mae"), as administrator (in such capacity, the "Administrator"), will enter into
an Administration Agreement with the Company, the Servicer, the Indenture
Trustee and the Trust, dated as of March 1, 2004, with respect to the Student
Loans to be held by the Trust.
The terms and conditions of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the related Indenture.
Capitalized terms used but not defined herein or in any Pricing Agreement
shall have the meanings ascribed thereto in the related Indenture.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriter of such Securities, for whom the firms designated as
representatives of the Underwriter of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriter of such Designated Securities, the names of the Underwriter of such
Designated Securities, the names of the Representatives of such Underwriter and
the principal amount of such Designated Securities to be purchased by each
Underwriter and whether any of such Designated Securities shall be covered by
Delayed Delivery Contracts (as defined in Section 3 hereof) and shall set forth
the date, time and manner of delivery of such Designated Securities and payment
therefor. The Pricing Agreement shall also specify (to the extent not set forth
in the Indenture and the registration statement and prospectus with respect
thereto) the terms of such Designated Securities. A Pricing Agreement shall be
in the form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written
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record of communications transmitted. The obligations of the Underwriters under
this Agreement and each Pricing Agreement shall be several and not joint.
2. The Company and SLM Education Credit 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), (o)
and (p) of this Section 2 with respect to SLM Education Credit, the Servicer or
the Administrator constitute representations, warranties and agreements of SLM
Education Credit only and not of the Company):
(a) A registration statement on Form S-3 (File No. 333-109004),
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 SLM Education Credit'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 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
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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;
(d) None of the Company, SLM Education Credit or any of their
subsidiaries has sustained 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 the
Preliminary Prospectus dated as of the date of this Agreement; and, since
such date, there has not been any material adverse change in the capital
stock or long-term debt of the Company or SLM Education Credit or any of
their 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 SLM Education Credit or any of
their
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subsidiaries or the transactions contemplated hereby, otherwise than as set
forth or contemplated in the Preliminary Prospectus dated as of the date of
this Agreement;
(e) The Company has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the state of
Delaware, with power and authority (limited liability company and
otherwise) 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 SLM Education Credit. SLM
Education Credit 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 otherwise) 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 SLM Corporation. The Servicer has been duly formed and is
validly existing as a corporation in good standing under the laws of the
State of Delaware, 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, and is
a wholly-owned subsidiary of SLM Corporation. The Administrator has been
duly formed and is validly existing as a corporation in good standing under
the laws of the State of Delaware, 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, and is a wholly-owned subsidiary of SLM Corporation;
(f) All of the issued membership interests of the Company have been
duly and validly authorized and issued and are owned beneficially and of
record by SLM Education Credit;
(g) This Agreement has been, and each Pricing Agreement with respect
to the Designated Securities upon its execution and delivery by the Company
and SLM Education Credit will have been, duly authorized, executed and
delivered by the Company and SLM Education Credit. The Securities have been
duly authorized, and, when Designated Securities are issued and delivered
pursuant to this Agreement and the Pricing Agreement with respect to such
Designated Securities, and, in the case of any Contract Securities,
pursuant to Delayed Delivery Contracts with respect to such Contract
Securities, such Designated Securities and Contract Securities will have
been duly executed, authenticated, issued and delivered. The Designated
Securities will constitute valid and legally binding obligations of the
related Trust entitled to the benefits provided by the Indenture, which
will be substantially in the form filed as an exhibit to the Registration
Statement. The Indenture has been duly authorized and duly qualified under
the Trust Indenture Act. The related Certificates are intended to represent
undivided ownership interests in the Trust created by the Trust Agreement,
which will be substantially in the form filed as an exhibit to the
Registration Statement, and will be entitled to the benefits provided by
the Trust Agreement. At the Time of Delivery (as defined in Section 4
hereof) for the Designated Securities, the Indenture and the Trust
Agreement will each constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors'
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rights and to general equity principles. The Indenture and Trust Agreement
conform, and the Designated Securities and the related Certificates will
conform, to the descriptions thereof contained in the Prospectus as amended
or supplemented with respect to the Designated Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, the
Trust Agreement, each of the Delayed Delivery Contracts, this Agreement and
any Pricing Agreement, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or SLM Education Credit is a
party or by which the Company or SLM Education Credit is bound or to which
any of the property or assets of the Company or SLM Education Credit is
subject, nor will such action result in any violation of the provisions of
the Company's certificate of formation or operating agreement, SLM
Education Credit's certificate of incorporation 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 SLM Education Credit 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 SLM Education Credit 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
Notes," insofar as they purport to constitute a summary of the terms of the
Notes and the Certificates, are accurate, complete and fair;
(j) SLM Education Credit is not in violation of its Certificate of
Incorporation or By-laws, and the Company is not in violation of its
Certificate of Formation or Operating Agreement, and neither SLM Education
Credit nor the Company is in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound;
(k) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or SLM Education
Credit or any of its subsidiaries is a party or of which any property of
the Company or SLM Education Credit or any of its subsidiaries is the
subject which, if determined adversely to the Company or SLM Education
Credit or any of its subsidiaries, would individually or in the aggregate
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have a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of the
Company or SLM Education Credit or any of its subsidiaries or on the
consummation of the transactions contemplated hereby; and, to the best of
the Company's and SLM Education Credit's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(l) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended;
(m) Neither the Company, SLM Education Credit nor any of their
affiliates does business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(n) PricewaterhouseCoopers LLP are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder;
(o) At the Time of Delivery of the Designated Securities, SLM
Education Credit's representations and warranties in the related Seller
Sale Agreement and the Administration Agreement, the Administrator's
representations and warranties in the Administration Agreement, the
Company's representations and warranties in the related Depositor 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 SLM Education Credit 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.
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
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therefor the Company will pay to the Representatives, for the accounts of the
Underwriters, at the Time of Delivery, such commission, if any, as may be set
forth in such Pricing Agreement. Delayed Delivery Contracts, if any, are to be
with investors of the types described in the Prospectus and subject to other
conditions therein set forth. The Underwriters will not have any responsibility
with respect to the validity or performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Designated Securities to be purchased by each Underwriter as
set forth in Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, the principal amount of Contract Securities
which the Company has been advised by the Representatives have been attributed
to such Underwriter, provided that, if the Company has not been so advised, the
amount of Contract Securities to be so deducted shall be, in each case, that
proportion of Contract Securities which the principal amount of Designated
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the total principal amount of the Designated Securities (rounded as the
Representatives may determine). The total principal amount of Underwriters'
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the total principal amount of Designated Securities set forth
in Schedule I to such Pricing Agreement less the principal amount of the
Contract Securities. The Company will deliver to the Representatives not later
than 3:30 p.m., New York City time, on the third business day preceding the Time
of Delivery specified in the applicable Pricing Agreement (or such other time
and date as the Representatives and the Company may agree upon in writing), a
written notice setting forth the principal amount of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer or
by certified or official bank check or checks, payable to the order of the
Company in the funds specified in such Pricing Agreement, all in the manner and
at the place and time and date specified in such Pricing Agreement or at such
other place and time and date as the Representatives and the Company may agree
upon in writing, such time and date being herein called the "Time of Delivery"
for such Securities.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of the party designated in the
Pricing Agreement relating to such Underwriters' Securities in the amount of any
compensation payable by the Company to the Underwriters in respect of any
Delayed Delivery Contracts as provided in Section 3 hereof and the Pricing
Agreement relating to such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities, and SLM Education Credit 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
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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;
(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
9
Exchange Act or the Trust Indenture Act, to notify the Representatives and,
upon their request, to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance;
(d) To cause the Trust to make generally available to holders of
Designated Securities, as soon as practicable, but in any event not later
than eighteen months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), an earnings statement of the
Trust (which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including, at
the option of the Company, Rule 158); and
(e) To apply the net proceeds of the offering and sale of the
Designated Securities and the related Certificates that it receives in the
manner set forth in the Prospectus.
6. The Company and SLM Education Credit covenant and agree with the
several Underwriters that the Company or SLM Education Credit will pay or cause
to be paid the following: (i) the reasonable fees, disbursements and expenses of
the Company's and SLM Education Credit's counsel and accountants in connection
with the registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Trust Agreement, any Delayed Delivery Contracts, any Blue Sky and Legal
Investment Memoranda, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery
of the Designated Securities; (iii) all expenses in connection with the
qualification of the Designated Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment Surveys;
(iv) any fees charged by securities rating services for rating the Designated
Securities; (v) the cost of preparing the Designated Securities; (vi) the
reasonable fees and expenses of the Trustee and the Indenture Trustee and any
agent of the Trustee or the Indenture Trustee and the fees and disbursements of
counsel for the Trustee and the Indenture Trustee in connection with any
Indenture and Trust Agreement and the Designated Securities; (vii) the fees
payable to the Luxembourg Stock Exchange in connection with listing Designated
Securities on the Luxembourg Stock Exchange; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder and under any
Delayed Delivery Contracts that are not otherwise specifically provided for in
this Section. It is understood, however, that, except as provided in this
Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the reasonable discretion of the Representatives, to the condition that all
representations and warranties and other statements
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of the Company and SLM Education Credit 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 SLM Education Credit 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 Representatives
such opinion or opinions, substantially in the form attached hereto as
Annex II(a), dated the Time of Delivery for such Designated Securities,
with respect to the Designated Securities and such other related matters as
the Representatives may reasonably request;
(c) Internal counsel for the Company, the Administrator, SLM
Education Credit, SLM Corporation 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, the Administrator, SLM Education
Credit, SLM Corporation 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(a) or as
is otherwise satisfactory to the Representatives;
(e) Counsel for the 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(c) 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(d) 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 SLM Education Credit shall have furnished to the
Representatives a letter or letters with respect to the Company, SLM
Education Credit, the statistical and financial information contained in
the
11
Preliminary Prospectus and the Prospectus and certain agreed upon
procedures with respect to the issuance and offering of the Designated
Securities and the related Student Loans, in form and substance
satisfactory to the Representatives and in each case confirming that such
accountants are independent public accountants with the meaning of the Act
and the applicable rules and regulations thereunder;
(h) (i) Neither the Company nor SLM Education Credit shall have
sustained 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 the Preliminary Prospectus
dated as of the date of this Agreement, 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 SLM Education Credit 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 SLM Education Credit otherwise than
as set forth or contemplated in the Preliminary Prospectus dated as of the
date of this Agreement, 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 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;
(j) Each of the Company and SLM Education Credit 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 SLM Education Credit, as the case may be, satisfactory to
the Representatives as to the accuracy of the representations and
warranties of the Company or SLM Education Credit, as the case may be,
herein at and as of such Time of Delivery, as to the performance by the
Company or SLM Education Credit, 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;
(k) At the Time of Delivery, the aggregate principal amount of the
Underwriters' Securities as specified in the related Pricing Agreement for
the Designated Securities
12
shall have been sold by the Company to the Underwriters, and the aggregate
amount of the related Certificates, if any, as specified in the related
underwriting agreement for such Certificates shall have been sold by the
Company to the underwriters specified in such underwriting agreement; and
(l) 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, SLM Education Credit and SLM Corporation, 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, SLM Education Credit and SLM Corporation 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, SLM Education Credit or SLM Corporation by
any Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company and SLM Education Credit 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 SLM Education Credit by such Underwriter through the
13
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the 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 SLM Education Credit, 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 SLM Education
Credit, on the one hand and the Underwriters of the Designated Securities on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and SLM Education Credit, 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 SLM
14
Education Credit 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 SLM Education Credit, 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, SLM Education Credit 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, SLM Education Credit and SLM
Corporation under this Section 8 shall be in addition to any liability which the
Company, SLM Education Credit and SLM Corporation 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, SLM Education
Credit and SLM Corporation and to each person, if any, who controls the Company,
SLM Education Credit and SLM Corporation within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Underwriters' Securities which it has agreed to purchase under the Pricing
Agreement relating to such Underwriters' Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Underwriters' Securities on the terms contained herein and
therein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Underwriters'
Securities, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Underwriters' Securities on such terms. In the
event that, within the respective prescribed period, the Representatives notify
the Company that they have so arranged for the purchase of such Underwriters'
Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Underwriters' Securities, the Representatives or the
Company shall have the
15
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 principal amount of such Underwriters' Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right (i) to require
each non-defaulting Underwriter to purchase the principal amount of
Underwriters' Securities which such non-defaulting Underwriter agreed to
purchase under the Pricing Agreement relating to such Designated Securities and,
in addition, (ii) to require each non-defaulting Underwriter to purchase its pro
rata share of the Underwriters' Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made (which share only
shall pertain to and be based on the principal amount of the Designated
Securities which such non-defaulting Underwriter or Underwriters previously
agreed to purchase under such Pricing Agreement, it being acknowledged and
agreed that such non-defaulting Underwriter or Underwriters shall not be
required to purchase a share of any class of Underwriters' Securities of a
defaulting Underwriter or Underwriters which the non-defaulting Underwriter or
Underwriters had not previously agreed to purchase under such Pricing
Agreement). Nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) (i) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Underwriters' Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or (ii) if the Company shall
not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Underwriters' Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to such
Designated Securities shall thereupon terminate, without liability on the part
of any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof and
the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, SLM Education Credit, the several
Underwriters and, to the extent provided in Section 8, SLM Corporation, 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,
SLM Education
16
Credit or SLM Corporation or any officer or director or controlling person of
the Company, SLM Education Credit or SLM Corporation, and shall survive delivery
of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9 or
Section 7(i) hereof, the Company, SLM Corporation and SLM Education Credit 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, as applicable; but, if for any other reason
Underwriters' Securities are not delivered by or on behalf of the Company as
provided herein, the Company, SLM Corporation and SLM Education Credit 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, SLM Corporation and SLM Education Credit 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 SLM Education Credit shall be
delivered or sent by mail, telex or facsimile transmission to:
SLM Education Credit Funding LLC
11600 Sallie Mae Drive
Reston, Virginia 20193
Facsimile: (703) 810-7586
Attention: Mark L. Heleen
Vice President
SLM Education Credit Finance Corporation
20 Hemingway Drive
East Providence, Rhode Island 02915
Facsimile: (401) 435-5649
Attention: Mary Jo Feldman
President
With copies to:
Sallie Mae, Inc.
11600 Sallie Mae Drive
17
Reston, Virginia 20193
Facsimile: (703) 810-7586
Attention: Mike Sheehan
Vice President
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company or SLM Education Credit 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, SLM Education
Credit and, to the extent provided in Sections 8 and 10 hereof, the officers and
directors of the Company and SLM Education Credit and each person who controls
the Company, SLM Education Credit 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 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.
18
If the foregoing is in accordance with your understanding, please sign and
return to us 7 counterparts hereof.
Very truly yours,
SLM Education Credit Funding LLC
By: /s/ MARK L. HELEEN
Name: Mark L. Heleen
Title: Vice President
SLM Education Credit Finance Corporation
By: /s/ MARK L. HELEEN
Name: Mark L. Heleen
Title: Vice President
Accepted and agreed with respect to
Section 8 of this Agreement:
SLM Corporation
By: /s/ J. LANCE FRANKE
Name: J. Lance Franke
Title: Authorized Agent
Accepted as of the date hereof:
J.P. Morgan Securities Inc.
By: /s/ ANTHONY HERMANN
Name: Anthony Hermann
Title: Vice President
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: /s/ ANTHONY WITKOWSKY
Name: Anthony Witkowsky
Title: Authorized Signatory
ANNEX I
Pricing Agreement
-----------------
_________________________
As Representatives of the several
Underwriters named on Schedule I hereto,
c/o______________________
_________________________
_________________________
, 200_
Ladies and Gentlemen:
SLM Education Credit Funding LLC, a Delaware limited liability company (the
"Company"), and SLM Education Credit Finance Corporation, a Delaware corporation
("SLM Education Credit"), propose, subject to the terms and conditions stated
herein and in the Underwriting Agreement, dated __________, 200__ (the
"Underwriting Agreement"), between the Company and SLM Education Credit, on the
one hand, and _____________, on the other hand, that the Company will cause the
trust (the "Trust") formed pursuant to the Trust Agreement dated as of _______,
200__ between the Company and _______, as trustee (the "Trustee"), to issue and
sell to the Underwriters named in Schedule I hereto (the "Underwriters") the
Student Loan-Backed Notes (the "Notes") specified in Schedule II hereto (the
"Designated Securities"). The Notes will be issued and secured pursuant to the
Indenture, dated ___________ (the "Indenture"), between the Trust and _________,
as trustee (the "Indenture Trustee").
Each of the provisions of the Underwriting Agreement is incorporated herein
by reference in its entirety, and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the Representatives and
on behalf of each of the Underwriters of the Designated Securities pursuant to
Section 12 of the Underwriting Agreement and the address of the Representatives
referred to in such Section 12 are set forth at the end of Schedule II hereto.
A-1
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
cause the Trust to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto, less the principal
amount of Designated Securities covered by Delayed Delivery Contracts, if any,
as may be specified in Schedule II.
During the period beginning from the date of this Pricing Agreement for the
Designated Securities and continuing to and including [Closing Date], the
Company agrees, and SLM Education Credit agrees that it will cause the Company,
not to, and not to permit any affiliated entity to, offer, sell, contract to
sell or otherwise dispose of, any securities (other than the Designated
Securities) collateralized by, or any securities (other than the related
Certificates) evidencing an ownership in, Student Loans, without the prior
written consent of the Representatives.
Each Underwriter represents and agrees that (a) it has not offered or sold
and will not offer or sell any Notes [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 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 and Markets Act 2000 (the "FSMA"), received
by it in connection with the issue or sale of the Notes [or the Certificates] 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 [and the
Certificates] in, from or otherwise involving the United Kingdom. The Company
represents and agrees that it has been informed of the existence of the FSA
stabilizing guidance contained in Section MAR2, Ann 2G of the FSA Handbook (the
Handbook of rules and guidance issued by the Financial Services Authority).
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 SLM Education Credit. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company and SLM Education Credit for examination
upon request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
A-2
Very truly yours,
SLM Education Credit Funding LLC
By:
-----------------------------------
Name:
Title:
SLM Education Credit Finance
Corporation
By:
-----------------------------------
Name:
Title:
A-3
Accepted as of the date hereof:
[Underwriter]
By:
----------------------------------
On behalf of each of the Underwriters
A-4
SCHEDULE I
Principal Amount of Designated Securities to be Purchased
Underwriter Class ___ Class ___ Class ___
SCHEDULE II
Title of each Class of Designated Securities:
Aggregate principal amount of each Class:
Price to Public of each Class:
Purchase Price by Underwriters of each Class:
Specified funds for payment of purchase price:
Indenture:
Maturity:
Interest Rate:
Form of Designated Securities:
Time of Delivery:
Closing location for delivery of Designated Securities:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
ANNEX II(a)
The Company, Administrator, SLM Education Credit, the Servicer and the
----------------------------------------------------------------------
Underwriters: Outside Counsel Opinions
--------------------------------------
[Opinions to be issued, which together will be substantially in the form
provided for SLM Private Credit Student Loan Trust 2003-C]
B-1
ANNEX II(b)
The Company, Administrator, SLM Education Credit and the Servicer: Internal
---------------------------------------------------------------------------
Counsel Opinion
---------------
[Opinion to be issued substantially in the form provided for SLM Private
Credit Student Loan Trust 2003-C]
C-1
ANNEX II(c)
Trustee/Eligible Lender Trustee: Counsel Opinion
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[Opinion to be issued substantially in the form provided for SLM Private
Credit Student Loan Trust 2003-C]
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ANNEX II(d)
Indenture Trustee: Counsel Opinion
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[Opinion to be issued substantially in the form provided for SLM Private
Credit Student Loan Trust 2003-C]
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ANNEX III
DELAYED DELIVERY CONTRACT
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SLM Education Credit Funding LLC
c/o _____________________
_________________________
_________________________
Attention:____________________________ ___________ ,
20__
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SLM Education Credit Funding
LLC (hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
$________
principal amount of the Company's ________ (hereinafter called the "Designated
Securities"), offered by the Company's Prospectus, dated __________, 20__, as
amended or supplemented, receipt of a copy of which is hereby acknowledged, at a
purchase price of _____% of the principal amount thereof, plus accrued interest
from the date from which interest accrues as set forth below, and on the further
terms and conditions set forth below.
The undersigned will purchase the Designated Securities from the Company on
__________, 20__ (the "Delivery Date") and interest on the Designated Securities
so purchased will accrue from __________, 20__.
[The undersigned will purchase the Designated Securities from the Company
on the delivery date or dates and in the principal amount or amounts set forth
below:
Principal Date from Which
Delivery Date Amount Interest Accrues
- ---------------- --------- ----------------
__________, 20__ $________ __________, 20__
__________, 20__ $________ __________, 20__
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date."(4)]
Payment for the Designated Securities which the undersigned has agreed to
purchase on [the] [each] Delivery Date shall be made to the Company or its order
by certified or official bank check in ________ Clearing House funds at the
office of ________, ________, ________, or by wire transfer to a bank account
specified by the Company, on [the] [such] Delivery Date upon delivery to the
undersigned of the Designated Securities then to be purchased by the undersigned
in definitive fully registered form and in such denominations and registered in
such names as the
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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.
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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:
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(Address)
Accepted: ______________________, 20__
SLM Education Credit Funding LLC
By:
-----------------------------------
Name:
Title:
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