Common use of CERTAIN QUALIFICATIONS Clause in Contracts

CERTAIN QUALIFICATIONS. We wish to note that the existing reported decisional authority is not conclusive as to the relative weight to be accorded to the factors present in the Conveyance and does not provide consistently applied general principles or guidelines with which to analyze all of the factors present in the Conveyance. Instead, judicial decisions in this area are usually made on the basis of an analysis of the facts and circumstances of the particular case. Furthermore, there are facts and circumstances present in the Conveyance which we believe to be relevant to our conclusion but which, because of the particular facts at issue in the reported cases, are not generally discussed in the reported cases as being material factors. Moreover, the authorities we have examined include certain cases and authorities that are arguably inconsistent with our conclusions expressed herein. These cases and authorities are, however, in our opinion, distinguishable in the context of the Conveyance. Consistent with our statement on page 1 hereof that we express no opinion as to any matter other than the matters specifically addressed herein, in the event the Depositor was to become a debtor under the Bankruptcy Code and it was asserted that the beneficial interest in and legal title to the Financed Student Loans was part of the estate of the Depositor, we express no opinion as to how long the Trust would be denied possession of the Financed Student Loans or collections of the Financed Student Loans in the possession of the Depositor before the validity of such an assertion could be finally decided. We also express no opinion as to the availability or effect of a preliminary injunction, temporary restraining order or other such temporary relief affording delay pending a determination on the merits. By such reservation, however, we do not imply that we have undertaken any analysis to determine whether any such equitable relief would ultimately be available to prevent enforcement of the Conveyance. The foregoing analysis and are premised upon, and limited to, the law and the structure of the proposed Conveyance in effect as of the date of this letter. Furthermore, we note that a court's decision regarding matters upon which we opine herein is based on the court's own analysis and interpretation of the factual evidence before the court and of applicable legal principles. A court could reach conclusions different from those set forth herein. We note that legal opinions on bankruptcy law matters unavoidably have inherent uncertainties and limitations that generally do not exist in respect of other legal issues on which opinions to third parties are typically given. These inherent uncertainties and limitations exist primarily because of the extensive equity powers of bankruptcy courts, the overriding goal of reorganization to which other legal rights and policies may be subordinated, the potential relevance to the exercise of judicial discretion of future-arising facts and circumstances, and the nature of the bankruptcy process. The recipients of this opinion should take these uncertainties and limitations into account in interpreting our opinion and in analyzing the bankruptcy risks associated with the Conveyance contemplated by the Sale and Servicing Agreement. In expressing the opinions stated above, we wish to note that, although we believe our opinions are supported by a sound analysis of the transactions contemplated by the Sale and Servicing Agreement, there is no reported controlling judicial precedent directly on point. Accordingly, we examined decisions in which certain of the facts and circumstances of the instant transactions were present as well as cases discussing more generally whether a particular transfer of an asset was a transfer of ownership or a transfer of a limited interest for the purpose of security. Moreover, the sources we have examined contain certain cases and authorities that are arguably inconsistent with the conclusions expressed in our opinion. These cases and authorities, in our opinion, should reasonably be distinguishable in the context of the Conveyance contemplated by the Sale and Servicing Agreement. The opinions expressed herein are limited to the laws of the United States as of the date hereof and shall be effective only as to the date of this opinion letter. We do not assume responsibility for updating this opinion letter as of any date subsequent to the date of this opinion letter, and assume no responsibility for advising you of (i) any changes with respect to any matters described in this opinion letter or (ii) the discovery, subsequent to the date of this opinion letter, of factual information not previously known to us pertaining to the events occurring prior to the date of this opinion letter.

CERTAIN QUALIFICATIONS. We wish to note that the existing reported decisional authority is not conclusive as to the relative weight to be accorded to the factors present in the Conveyance and does not provide consistently applied general principles or guidelines with which to analyze all of the factors present in the Conveyance. Instead, judicial decisions in this area are usually made on the basis of an analysis of the facts and circumstances of the particular case. Furthermore, there are facts and circumstances present in the Conveyance which we believe to be relevant to our conclusion but which, because of the particular facts at issue in the reported cases, are not generally discussed in the reported cases as being material factors. Moreover, the authorities we have examined include certain cases and authorities that are arguably inconsistent with our conclusions expressed herein. These cases and authorities are, however, in our opinion, distinguishable in the context of the Conveyance. Consistent with our statement on page 1 hereof that we express no opinion as to any matter other than the matters specifically addressed herein, in the event the Depositor was to become a debtor under the Bankruptcy Code and it was asserted that the beneficial interest in and legal title to the Financed Student Loans was part of the estate of the Depositor, we express no opinion as to how long the Trust would be denied possession of the Financed Student Loans or collections of the Financed Student Loans in the possession of the Depositor before the validity of such an assertion could be finally decided. We also express no opinion as to the availability or effect of a preliminary injunction, temporary restraining order or other such temporary relief affording delay pending a determination on the merits. By such reservation, however, we do not imply that we have undertaken any analysis to determine whether any such equitable relief would ultimately be available to prevent enforcement of the Conveyance. The foregoing analysis and are premised upon, and limited to, the law and the structure of the proposed Conveyance in effect as of the date of this letter. Furthermore, we note that a court's decision regarding matters upon which we opine herein is based on the court's own analysis and interpretation of the factual evidence before the court and of applicable legal principles. A court could reach conclusions different from those set forth herein. We note that legal opinions on bankruptcy law matters unavoidably have inherent uncertainties and limitations that generally do not exist in respect of other legal issues on which opinions to third parties are typically given. These inherent uncertainties and limitations exist primarily because of the extensive equity powers of bankruptcy courts, the overriding goal of reorganization to which other legal rights and policies may be subordinated, the potential relevance to the exercise of judicial discretion of future-arising facts and circumstances, and the nature of the bankruptcy process. The recipients of this opinion should take these uncertainties and limitations into account in interpreting our opinion and in analyzing the bankruptcy risks associated with the Conveyance contemplated by the Sale and Servicing Agreement. In expressing the opinions stated above, we wish to note that, although we believe our opinions are supported by a sound analysis of the transactions contemplated by the Sale and Servicing Agreement, there is no reported controlling judicial precedent directly on point. Accordingly, we examined decisions in which certain of the facts and circumstances of the instant transactions were present as well as cases discussing more generally whether a particular transfer of an asset was a transfer of ownership or a transfer of a limited interest for the purpose of security. Moreover, the sources we have examined contain certain cases and authorities that are arguably inconsistent with the conclusions expressed in our opinion. These cases and authorities, in our opinion, should reasonably be distinguishable in the context of the Conveyance contemplated by the Sale and Servicing Agreement. The opinions expressed herein are limited to the laws of the United States as of the date hereof and shall be effective only as to the date of this opinion letter. We do not assume responsibility for updating this opinion letter as of any date subsequent to the date of this opinion letter, and assume no responsibility for advising you of (i) any changes with respect to any matters described in this opinion letter or (ii) the discovery, subsequent to the date of this opinion letter, of factual information not previously known to us pertaining to the events occurring prior to the date of this opinion letter. This opinion letter is furnished to you in connection with the Conveyance and is not to be used, circulated, quoted, relied upon or otherwise referred to for any other purpose or by any other person or entity for any purpose without our prior written consent. Very truly yours, XXXXXXXX XXXX LLP DJN:RAS:BJF 1 11 U.S.C.A. § 541(a) (West Supp. 2003). 2 Id. For a general discussion of the concept of property of the estate, see 5 Xxxxxxx on Bankruptcy ch. 541, at 541-1 to 541-94 (15th ed. rev. 1996). 3 See 11 U.S.C.A. §§ 541(b), (d) (West Supp. 2003). Section 541(d) provides that if a debtor has only legal title to property, only that interest becomes property of its bankruptcy estate. However, several courts have held that the debtor's estate can be expanded through the bankruptcy trustee's use of Section 544(a) of the Bankruptcy Code even if the debtor only has legal title to the property in question. See, e.g., In re Omegas Group, Inc., 16 F.3d 1443 (6th Cir. 1994); Xxxxxxx x. Xxxxxxxx, 877 F.2d 512 (7th Cir.), cert. denied, 000 X.X. 000 (1989); In re Seaway Express Corp., 912 F.2d 1125 (9th Cir. 1990); but see In re Quality Holstein Leasing, 752 F.2d 1009 (5th Cir. 1985). In the instant case, it is not intended that the Depositor will retain legal title to the Financed Student Loans transferred by it.

CERTAIN QUALIFICATIONS. We wish to note that the existing reported decisional authority is not conclusive as to the relative weight to be accorded to the factors present in the Conveyance and does not provide consistently applied general principles or guidelines with which to analyze all of the factors present in the Conveyance. Instead, judicial decisions in this area are usually made on the basis of an analysis of the facts and circumstances of the particular case. Furthermore, there are facts and circumstances present in the Conveyance which we believe to be relevant to our conclusion but which, because of the particular facts at issue in the reported cases, are not generally discussed in the reported cases as being material factors. Moreover, the authorities we have examined include certain cases and authorities that are arguably inconsistent with our conclusions expressed herein. These cases and authorities are, however, in our opinion, distinguishable in the context of the Conveyance. Consistent with our statement on page 1 hereof that we express no opinion as to any matter other than the matters specifically addressed herein, in the event the Depositor was to become a debtor under the Bankruptcy Code and it was asserted that the beneficial interest in and legal title to the Financed Student Loans was part of the estate of the Depositor, we express no opinion as to how long the Trust would be denied possession of the Financed Student Loans or collections of the Financed Student Loans in the possession of the Depositor before the validity of such an assertion could be finally decided. We also express no opinion as to the availability or effect of a preliminary injunction, temporary restraining order or other such temporary relief affording delay pending a determination on the merits. By such reservation, however, we do not imply that we have undertaken any analysis to determine whether any such equitable relief would ultimately be available to prevent enforcement of the Conveyance. The foregoing analysis and are premised upon, and limited to, the law and the structure of the proposed Conveyance in effect as of the date of this letter. Furthermore, we note that a court's decision regarding matters upon which we opine herein is based on the court's own analysis and interpretation of the factual evidence before the court and of applicable legal principles. A court could reach conclusions different from those set forth herein. We note that legal opinions on bankruptcy law matters unavoidably have inherent uncertainties and limitations that generally do not exist in respect of other legal issues on which opinions to third parties are typically given. These inherent uncertainties and limitations exist primarily because of the extensive equity powers of bankruptcy courts, the overriding goal of reorganization to which other legal rights and policies may be subordinated, the potential relevance to the exercise of judicial discretion of future-arising facts and circumstances, and the nature of the bankruptcy process. The recipients of this opinion should take these uncertainties and limitations into account in interpreting our opinion and in analyzing the bankruptcy risks associated with the Conveyance contemplated by the Sale and Servicing Agreement. In expressing the opinions stated above, we wish to note that, although we believe our opinions are supported by a sound analysis of the transactions contemplated by the Sale and Servicing Agreement, there is no reported controlling judicial precedent directly on point. Accordingly, we examined decisions in which certain of the facts and circumstances of the instant transactions were present as well as cases discussing more generally whether a particular transfer of an asset was a transfer of ownership or a transfer of a limited interest for the purpose of security. Moreover, the sources we have examined contain certain cases and authorities that are arguably inconsistent with the conclusions expressed in our opinion. These cases and authorities, in our opinion, should reasonably be distinguishable in the context of the Conveyance contemplated by the Sale and Servicing Agreement. The opinions expressed herein are limited to the laws of the United States as of the date hereof and shall be effective only as to the date of this opinion letter. We do not assume responsibility for updating this opinion letter as of any date subsequent to the date of this opinion letter, and assume no responsibility for advising you of (i) any changes with respect to any matters described in this opinion letter or (ii) the discovery, subsequent to the date of this opinion letter, of factual information not previously known to us pertaining to the events occurring prior to the date of this opinion letter. This opinion letter is furnished to you in connection with the Conveyance and is not to be used, circulated, quoted, relied upon or otherwise referred to for any other purpose or by any other person or entity for any purpose without our prior written consent. Very truly yours, [XXXXXXXX XXXX LLP] DJN:RAS:BJF 1 11 U.S.C.A. § 541(a) (West Supp. 2003). 2 Id. For a general discussion of the concept of property of the estate, see 5 Xxxxxxx on Bankruptcy ch. 541, at 541-1 to 541-94 (15th ed. rev. 1996). 3 See 11 U.S.C.A. §§ 541(b), (d) (West Supp. 2003). Section 541(d) provides that if a debtor has only legal title to property, only that interest becomes property of its bankruptcy estate. However, several courts have held that the debtor's estate can be expanded through the bankruptcy trustee's use of Section 544(a) of the Bankruptcy Code even if the debtor only has legal title to the property in question. See, e.g., In re Omegas Group, Inc., 16 F.3d 1443 (6th Cir. 1994); Xxxxxxx x. Xxxxxxxx, 877 F.2d 512 (7th Cir.), cert. denied, 000 X.X. 000 (1989); In re Seaway Express Corp., 912 F.2d 1125 (9th Cir. 1990); but see In re Quality Holstein Leasing, 752 F.2d 1009 (5th Cir. 1985). In the instant case, it is not intended that the Depositor will retain legal title to the Financed Student Loans transferred by it.