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TRUST AGREEMENT
among
SLM FUNDING LLC,
as Depositor
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Eligible Lender Trustee
and
THE BANK OF NEW YORK,
not in its individual capacity but solely
as Indenture Trustee
Dated as of October 1, 2003
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TABLE OF CONTENTS
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ARTICLE I
SECTION 1.1 Definitions and Usage.............................................. 1
ARTICLE II ORGANIZATION
SECTION 2.1 Creation of Trust; Name........................................... 1
SECTION 2.2 Office............................................................ 1
SECTION 2.3 Purposes and Powers............................................... 1
SECTION 2.4 Appointment of Eligible Lender Trustee............................ 2
SECTION 2.5 Initial Capital Contribution of Trust Estate...................... 2
SECTION 2.6 Declaration of Trust.............................................. 2
SECTION 2.7 Liability of the Holder of the Excess Distribution Certificate.... 2
SECTION 2.8 Title to Trust Property........................................... 2
SECTION 2.9 Representations, Warranties and Covenants of the Depositor........ 3
SECTION 2.10 Intentionally Omitted............................................ 3
SECTION 2.11 Authorization of Depositor....................................... 3
ARTICLE III BENEFICIAL OWNERSHIP AND EXCESS DISTRIBUTION CERTIFICATE
SECTION 3.1 Initial Beneficial Ownership....................................... 4
SECTION 3.2 Intentionally Omitted.............................................. 4
SECTION 3.3 Intentionally Omitted.............................................. 4
SECTION 3.4 Intentionally Omitted.............................................. 4
SECTION 3.5 Intentionally Omitted.............................................. 4
SECTION 3.6 Intentionally Omitted.............................................. 4
SECTION 3.7 Intentionally Omitted.............................................. 4
SECTION 3.8 Corporate Trust Office............................................. 4
SECTION 3.9 Intentionally Omitted.............................................. 4
SECTION 3.10 Intentionally Omitted............................................. 4
SECTION 3.11 Intentionally Omitted............................................. 4
SECTION 3.12 Intentionally Omitted............................................. 4
SECTION 3.13 The Excess Distribution Certificate............................... 4
ARTICLE IV ACTIONS BY ELIGIBLE LENDER TRUSTEE
SECTION 4.1 Prior Notice to the Holder of the Excess Distribution Certificate
With Respect to Certain Matters............................... 9
SECTION 4.2 Action with Respect to Sale of the Trust Student Loans............. 10
SECTION 4.3 Action with Respect to Bankruptcy.................................. 10
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SECTION 4.4 Restrictions........................................................ 10
SECTION 4.5 Intentionally Omitted............................................... 10
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Application of Trust Funds.......................................... 11
SECTION 5.2 Method of Payment................................................... 11
SECTION 5.3 No Segregation of Moneys; No Interest............................... 11
SECTION 5.4 Reports to the Holder of the Excess Distribution
Certificate, the Internal Revenue Service and Others........ 11
SECTION 5.5 Intentionally Omitted............................................... 11
SECTION 5.6 Intentionally Omitted............................................... 11
ARTICLE VI AUTHORITY AND DUTIES OF ELIGIBLE LENDER TRUSTEE
SECTION 6.1 General Authority................................................... 12
SECTION 6.2 General Duties...................................................... 12
SECTION 6.3 Action upon Instruction............................................. 12
SECTION 6.4 No Duties Except as Specified in this Agreement or in Instructions.. 13
SECTION 6.5 No Action Except Under Specified Documents or Instructions.......... 14
SECTION 6.6 Restrictions........................................................ 14
ARTICLE VII CONCERNING THE ELIGIBLE LENDER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties..................................... 14
SECTION 7.2 Intentionally Omitted............................................... 15
SECTION 7.3 Representations and Warranties...................................... 15
SECTION 7.4 Reliance; Advice of Counsel......................................... 16
SECTION 7.5 Not Acting in Individual Capacity................................... 16
SECTION 7.6 Eligible Lender Trustee Not Liable for Excess Distribution
Certificates or Trust Student Loans...................... 17
SECTION 7.7 Eligible Lender Trustee May Own Notes............................... 17
ARTICLE VIII COMPENSATION AND INDEMNITY OF ELIGIBLE LENDER TRUSTEE
SECTION 8.1 Eligible Lender Trustee's Fees and Expenses......................... 17
SECTION 8.2 Payments to the Eligible Lender Trustee............................. 18
SECTION 8.3 Indemnity........................................................... 18
ARTICLE IX TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement...................................... 18
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ARTICLE X SUCCESSOR ELIGIBLE LENDER TRUSTEES AND ADDITIONAL
ELIGIBLE LENDER TRUSTEES
SECTION 10.1 Eligibility Requirements for Eligible Lender Trustee.............. 18
SECTION 10.2 Resignation or Removal of Eligible Lender Trustee................. 19
SECTION 10.3 Successor Eligible Lender Trustee................................. 20
SECTION 10.4 Merger or Consolidation of Eligible Lender Trustee................ 20
SECTION 10.5 Appointment of Co-Eligible Lender Trustee or Separate Eligible
Lender Trustee................................................... 20
ARTICLE XI MISCELLANEOUS
SECTION 11.1 Supplements and Amendments........................................ 22
SECTION 11.2 No Legal Title to Trust Estate in Holder of the Excess
Distribution Certificate................................ 22
SECTION 11.3 Limitations on Rights of Others................................... 23
SECTION 11.4 Notices........................................................... 23
SECTION 11.5 Severability...................................................... 23
SECTION 11.6 Separate Counterparts............................................. 23
SECTION 11.7 Successors and Assigns............................................ 23
SECTION 11.8 No Petition....................................................... 23
SECTION 11.9 No Recourse....................................................... 24
SECTION 11.10 Headings......................................................... 24
SECTION 11.11 Governing Law.................................................... 24
Exhibit A Form of Excess Distribution Certificate
Exhibit B Form of Certificate of Trust
Exhibit C Form of Transferor Letter
Exhibit D-1 Form of Transferee Letter (Non-Rule 144A)
Exhibit D-2 Form of Transferee Letter (Rule 144A)
Appendix A to Trust Agreement
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TRUST AGREEMENT dated as of October 1, 2003, among SLM FUNDING LLC, a
Delaware limited liability company, as the Depositor, CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity but solely as the Eligible Lender Trustee, and THE BANK OF NEW YORK, a
New York banking corporation, not in its individual capacity but solely as the
Indenture Trustee, acting as the Excess Distribution Certificate Paying Agent
hereunder.
WITNESSETH:
The Depositor, the Indenture Trustee and the Eligible Lender Trustee
hereby agree as follows:
ARTICLE I
SECTION 1.1 Definitions and Usage. Except as otherwise specified
herein or as the context may otherwise require, capitalized terms used but not
otherwise defined herein are defined in Appendix A hereto, which also contains
rules as to usage that shall be applicable herein.
ARTICLE II
Organization
SECTION 2.1 Creation of Trust; Name. There is hereby created a Trust
which shall be known as "SLM Student Loan Trust 2003-11", in which name the
Eligible Lender Trustee may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and xxx and be sued. The
Trust shall constitute a statutory trust within the meaning of Section 3801(a)
of the Delaware Statutory Trust Act for which the Eligible Lender Trustee has
filed a certificate of trust with the Secretary of State of the State of
Delaware pursuant to Section 3810(a) of the Delaware Statutory Trust Act.
SECTION 2.2 Office. The office of the Trust shall be in care of the
Eligible Lender Trustee at its Corporate Trust Office or at such other address
as the Eligible Lender Trustee may designate by written notice to the Depositor.
SECTION 2.3 Purposes and Powers. The purpose of the Trust is to engage
in the following activities:
(i) to issue the Notes pursuant to the Indenture and the
Excess Distribution Certificate pursuant to this Agreement and to sell
the Notes in one or more transactions;
(ii) with the proceeds of the sale of the Notes, to fund
the Reserve Account pursuant to Section 2.9 of the Administration
Agreement, to fund the Capitalized Interest Account pursuant to Section
2.10(a) of the Administration Agreement, to purchase the Trust Student
Loans pursuant to the Sale Agreement and to make the upfront payment
pursuant to the Interest Rate Cap Agreement;
(iii) to Grant the Trust Estate to the Indenture Trustee
pursuant to the Indenture, and to hold, manage and distribute to the
holder of the Excess Distribution Certificate pursuant to the terms of
this Agreement any portion of the Trust Estate released from the Lien
of, and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the
Basic Documents to which it is to be a party, including, but not
limited to, making the required payments set forth under the Swap
Agreements;
(v) to engage in those activities, including entering
into agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith; and
(vi) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Trust Estate and the making of distributions to the
Noteholders and the others specified in Sections 2.7 and 2.8 of the
Administration Agreement.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the other Basic Documents.
SECTION 2.4 Appointment of Eligible Lender Trustee. The Depositor
hereby appoints the Eligible Lender Trustee as trustee of the Trust, effective
as of the date hereof, to have all the rights, powers and duties set forth
herein.
SECTION 2.5 Initial Capital Contribution of Trust Estate. The Depositor
hereby sells, assigns, transfers, conveys and sets over to the Eligible Lender
Trustee, as of the date hereof, the sum of $100.00. The Eligible Lender Trustee
hereby acknowledges receipt in trust from the Depositor, as of the date hereof,
of the foregoing contribution, which shall constitute the Initial Trust Estate
and shall be deposited in the Collection Account. The Depositor shall pay the
organizational expenses of the Trust as they may arise or shall, upon the
request of the Eligible Lender Trustee, promptly reimburse the Eligible Lender
Trustee for any such expenses paid by the Eligible Lender Trustee.
SECTION 2.6 Declaration of Trust. The Eligible Lender Trustee hereby
declares that it will hold the Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the holder of the Excess
Distribution Certificate, subject to the obligations of the Trust under the
other Basic Documents. It is the intention of the parties hereto that the Trust
constitute a statutory trust under Delaware law and that this Agreement
constitute the governing instrument of such trust. Effective as of the date
hereof, the Eligible Lender Trustee shall have all rights, powers and duties set
forth herein with respect to accomplishing the purposes of the Trust.
SECTION 2.7 Liability of the Holder of the Excess Distribution
Certificate. No holder of the Excess Distribution Certificate (in such capacity)
shall have any personal liability for any liability or obligation of the Trust.
SECTION 2.8 Title to Trust Property. Legal title to all of the Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any
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jurisdiction requires title to any part of the Trust Estate to be vested in a
trustee or trustees, in which case title shall be deemed to be vested in the
Eligible Lender Trustee, a co-trustee and/or a separate trustee, as the case may
be; provided that legal title to the Trust Student Loans shall be vested at all
times in the Eligible Lender Trustee on behalf of the Trust.
SECTION 2.9 Representations, Warranties and Covenants of the
Depositor. The Depositor hereby represents, warrants and covenants to the
Eligible Lender Trustee as follows:
(a) The Depositor is duly organized and validly existing as a Delaware
limited liability company in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is presently
conducted.
(b) The Depositor has the power and authority to execute and deliver
this Agreement and to carry out its terms; the Depositor has full power and
authority to sell and assign the property to be sold and assigned to and
deposited with the Trust (or with the Eligible Lender Trustee on behalf of the
Trust) and the Depositor has duly authorized such sale and assignment and
deposit to the Trust (or to the Eligible Lender Trustee on behalf of the Trust)
by all necessary action; and the execution, delivery and performance of this
Agreement has been duly authorized by the Depositor by all necessary action.
(c) This Agreement constitutes a legal, valid and binding obligation of
the Depositor enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and similar laws relating to creditors'
rights generally and subject to general principles of equity.
(d) The consummation of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof do not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, the Certificate of Formation
or operating agreement of the Depositor, or any indenture, agreement or other
instrument to which the Depositor is a party or by which it is bound; nor result
in the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); nor violate any law or, to the Depositor's
knowledge, any order, rule or regulation applicable to the Depositor of any
court or of any Federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or its
properties.
(e) The Depositor agrees for the benefit of the Noteholders and the
holder of the Excess Distribution Certificate that it will comply with each of
the requirements set forth in the Certificate of Formation and its operating
agreement.
SECTION 2.10 Intentionally Omitted.
SECTION 2.11 Authorization of the Depositor. The Depositor is
authorized and directed to execute on behalf of the Issuer, and, after
execution, to deliver to the Administrator for filing with the Commission, all
documents and forms required to be filed in accordance with applicable law or
the rules and regulations prescribed by the Commission.
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ARTICLE III
Beneficial Ownership and
Excess Distribution Certificate
SECTION 3.1 Initial Beneficial Ownership. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.5 and until the
issuance of the Excess Distribution Certificate, the Depositor shall be the sole
beneficial owner of the Trust.
SECTION 3.2 Intentionally Omitted.
SECTION 3.3 Intentionally Omitted.
SECTION 3.4 Intentionally Omitted.
SECTION 3.5 Intentionally Omitted.
SECTION 3.6 Intentionally Omitted.
SECTION 3.7 Intentionally Omitted.
SECTION 3.8 Corporate Trust Office. The Eligible Lender Trustee
initially designates Christiana Center/OPS4, 000 Xxxxxxx Xxxxxxxxxx Xxxx,
Xxxxxx, Xxxxxxxx 00000, as its principal Corporate Trust Office, at which it
shall act as Trustee of the Trust. The Excess Distribution Certificate
Registrar's New York office and its authenticating agent's office are located
at:
The Bank of New York
000 Xxxxxxx Xxxxxx, 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust - Structured Finance
telephone: (000) 000-0000
facsimile: (000) 000-0000
SECTION 3.9 Intentionally Omitted.
SECTION 3.10 Intentionally Omitted.
SECTION 3.11 Intentionally Omitted.
SECTION 3.12 Intentionally Omitted.
SECTION 3.13 The Excess Distribution Certificate.
(a) General. The Excess Distribution Certificate shall be issued in one
or more registered, definitive physical certificates substantially in the form
of Exhibit A hereto, in minimum percentage interests of at least 10% and
integral multiples of 10% in excess thereof. The Excess Distribution Certificate
shall receive payments as provided in Sections 2.8(p), 2.9(f)
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and 2.10(a)(ii), as applicable, of the Administration Agreement. The Excess
Distribution Certificate shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Eligible Lender Trustee. An
Excess Distribution Certificate bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures were affixed, authorized
to sign on behalf of the Trust, shall be valid and binding obligations of the
Trust, notwithstanding that such individuals or any of them shall have ceased to
be so authorized prior to the authentication and delivery of such Excess
Distribution Certificate or did not hold such offices at the date of
authentication and delivery of such Excess Distribution Certificate.
(b) Authentication. Concurrently with the sale of the Trust Student
Loans to the Trust pursuant to the Sale Agreement, the Eligible Lender Trustee
shall cause the Excess Distribution Certificate to be executed on behalf of the
Trust, authenticated and delivered to or upon the written order of the
Depositor, signed by its president or any vice president, without further action
by the Depositor. For all purposes hereunder, the Depositor shall be the initial
holder of the Excess Distribution Certificate. No Excess Distribution
Certificate shall entitle its holder to any benefit under this Agreement, or
shall be valid for any purpose, unless there shall appear on such Excess
Distribution Certificate a certificate of authentication substantially in the
form set forth in Exhibit A, executed by the Eligible Lender Trustee or JPMorgan
Chase Bank, as the Eligible Lender Trustee's authenticating agent, by manual
signature; such authentication shall constitute conclusive evidence that such
Excess Distribution Certificate shall have been duly authenticated and delivered
hereunder. The Excess Distribution Certificate shall be dated the date of its
authentication. No further Excess Distribution Certificates shall be issued
except pursuant to paragraph (c) or (d) below.
(c) Registration of Transfer and Exchange. The Excess Distribution
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to paragraph (f) below, an Excess Distribution Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Eligible Lender Trustee shall provide for the registration of the Excess
Distribution Certificate and of transfers and exchanges of the Excess
Distribution Certificate as herein provided. The Bank of New York shall be the
initial Excess Distribution Certificate Registrar.
Upon surrender for registration of transfer of the Excess Distribution
Certificate at the office or agency maintained pursuant to paragraph (f) below,
the Eligible Lender Trustee shall execute, authenticate and deliver (or shall
cause JPMorgan Chase Bank as its authenticating agent to authenticate and
deliver), in the name of the designated transferee, a new Excess Distribution
Certificate dated the date of authentication by the Eligible Lender Trustee or
any authenticating agent. At the option of the holder of the Excess Distribution
Certificate, the Excess Distribution Certificate may be exchanged for another
Excess Distribution Certificate upon surrender of the Excess Distribution
Certificate to be exchanged at the office or agency maintained pursuant to
paragraph (f) below.
An Excess Distribution Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Eligible Lender Trustee and
the Excess Distribution Certificate Registrar duly executed by the holder
thereof or his attorney duly authorized in writing, with such signature
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company. An
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Excess Distribution Certificate surrendered for registration of transfer or
exchange shall be cancelled and subsequently disposed of by the Eligible Lender
Trustee in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of the Excess Distribution Certificate, but the Eligible Lender Trustee
or the Excess Distribution Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of the Excess Distribution Certificate.
The preceding provisions of this Section notwithstanding, the Eligible
Lender Trustee shall not be required to make and the Excess Distribution
Certificate Registrar need not register transfers or exchanges of the Excess
Distribution Certificate for a period of 15 days preceding any Distribution Date
with respect to the Excess Distribution Certificate.
The Excess Distribution Certificate and any beneficial interest in the
Excess Distribution Certificate may not be acquired by (a) employee benefit
plans (as defined in section 3(3) of ERISA) that are subject to the provisions
of Title I of ERISA, (b) plans described in section 4975(e)(1) of the Code,
including individual retirement accounts described in Section 408(a) of the Code
or Xxxxx plans, or (c) Benefit Plans. By accepting and holding the Excess
Distribution Certificate or an interest therein, the holder thereof shall be
deemed to have represented and warranted that it is not a Benefit Plan, is not
purchasing the Excess Distribution Certificate on behalf of a Benefit Plan and
is not using assets of a Plan to purchase the Excess Distribution Certificate
and to have agreed that if the Excess Distribution Certificate is deemed to be a
plan asset, the holder thereof will promptly dispose of the Excess Distribution
Certificate.
(d) Mutilated, Destroyed, Lost or Stolen Excess Distribution
Certificate. If (1) the mutilated Excess Distribution Certificate shall be
surrendered to the Excess Distribution Certificate Registrar, or if the Excess
Distribution Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of the Excess Distribution Certificate, and (2)
there shall be delivered to the Excess Distribution Certificate Registrar and
the Eligible Lender Trustee such security or indemnity as may be required by
them to save each of them and the Trust harmless, then in the absence of notice
that such Excess Distribution Certificate shall have been acquired by a bona
fide purchaser, the Eligible Lender Trustee, on behalf of the Trust, shall
execute and the Eligible Lender Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Excess
Distribution Certificate, a new Excess Distribution Certificate of like tenor.
In connection with the issuance of any new Excess Distribution Certificate under
this Section, the Eligible Lender Trustee and the Excess Distribution
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Excess Distribution Certificate issued pursuant to this paragraph
shall constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Excess Distribution
Certificate shall be found at any time.
(e) Persons Deemed Owners. Prior to due presentation of the Excess
Distribution Certificate for registration of transfer, the Eligible Lender
Trustee and the Excess Distribution Certificate Registrar and any agent of
either of them may treat the Person in whose name the
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Excess Distribution Certificate shall be registered in the Excess Distribution
Certificate Register as the owner of such Excess Distribution Certificate for
the purpose of receiving distributions thereon and for all other purposes
whatsoever, and neither the Eligible Lender Trustee, the Excess Distribution
Certificate Registrar nor any agent thereof shall be bound by any notice to the
contrary.
(f) Maintenance of Office or Agency. The Eligible Lender Trustee shall
maintain in the Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where the Excess Distribution Certificate may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Eligible Lender Trustee in respect of the Excess
Distribution Certificate may be served.
(g) Appointment of Excess Distribution Certificate Paying Agent. The
Excess Distribution Certificate Paying Agent shall make distributions to the
holder of the Excess Distribution Certificate from the amounts received from the
Indenture Trustee pursuant to Sections 2.8(p), 2.9(f) and 2.10(a)(ii) of the
Administration Agreement and shall report the amounts of such distributions to
the Indenture Trustee (if the Excess Distribution Certificate Paying Agent is
not the Indenture Trustee). Any Excess Distribution Certificate Paying Agent
shall have the revocable power to receive such funds from the Indenture Trustee
for the purpose of making the distributions referred to above. The Eligible
Lender Trustee may revoke such power and remove the Excess Distribution
Certificate Paying Agent if the Eligible Lender Trustee determines in its sole
discretion that the Excess Distribution Certificate Paying Agent shall have
failed to perform its obligations under this Agreement in any material respect.
The Excess Distribution Certificate Paying Agent shall initially be the
Indenture Trustee, and any co-paying agent chosen by the Eligible Lender Trustee
and consented to by the Administrator (which consent shall not be unreasonably
withheld). The Indenture Trustee shall be permitted to resign as Excess
Distribution Certificate Paying Agent upon 30 days' written notice to the
Eligible Lender Trustee. In the event that the Eligible Lender Trustee shall no
longer be the Excess Distribution Certificate Paying Agent, the Eligible Lender
Trustee shall appoint a successor to act as Excess Distribution Certificate
Paying Agent (which shall be a bank or trust company). The Eligible Lender
Trustee shall cause such successor Excess Distribution Certificate Paying Agent
or any additional Excess Distribution Certificate Paying Agent appointed by the
Eligible Lender Trustee to execute and deliver to the Eligible Lender Trustee an
instrument in which such successor Excess Distribution Certificate Paying Agent
or additional Excess Distribution Certificate Paying Agent shall agree with the
Eligible Lender Trustee that as Excess Distribution Certificate Paying Agent,
such successor Excess Distribution Certificate Paying Agent or additional Excess
Distribution Certificate Paying Agent will hold all sums, if any, held by it for
payment to the holder of the Excess Distribution Certificate in trust for the
benefit of such holder until such sums shall be paid to such holder. The Excess
Distribution Certificate Paying Agent shall return all unclaimed funds to the
Eligible Lender Trustee and upon removal of an Excess Distribution Certificate
Paying Agent such Excess Distribution Certificate Paying Agent shall also return
all funds in its possession to the Eligible Lender Trustee. The provisions of
Articles VII and VIII of the Indenture shall apply to the Indenture Trustee also
in its role as Excess Distribution Certificate Paying Agent, for so long as the
Indenture Trustee shall act as Excess Distribution Certificate Paying Agent and,
to the extent applicable, to any other paying agent appointed hereunder. Any
reference in this Agreement to
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the Excess Distribution Certificate Paying Agent shall include any co-paying
agent unless the context requires otherwise.
(h) Restrictions on Transfer of the Excess Distribution Certificate.
(i) The Excess Distribution Certificate may be transferred to any Affiliate of
the Depositor, without any requirement to provide any officer's certificates or
legal opinions that would otherwise be required if such proposed transfer was
being made to a Person who is not an Affiliate of the Depositor.
(ii) Except as provided above, the Excess Distribution
Certificate shall not be sold, pledged, transferred or assigned except
as provided below:
(A) The Excess Distribution Certificate has not
been registered or qualified under the Securities Act of 1933, as
amended (the "Securities Act") or any state securities law. No
transfer, sale, pledge or other disposition of the Excess Distribution
Certificate or any interest therein shall be made unless such transfer
is made pursuant to an effective registration statement under the
Securities Act and effective registration or qualification under
applicable state securities laws, or is made in a transaction which
does not require such registration or qualification. In the event that
a transfer is to be made without registration or qualification, the
Eligible Lender Trustee shall require, in order to assure compliance
with such laws, that the prospective transferor and transferee each
certify to the Eligible Lender Trustee, the Excess Distribution
Certificate Registrar, the Administrator, and, if it is not the
proposed transferor, the Depositor, in writing, the facts surrounding
the transfer. Such certifications shall be substantially in the forms
of Exhibit C hereto and Exhibit D-1 or D-2 hereto, as applicable. In
the event that such a transfer is to be made within two years from the
date of the initial issuance of the Excess Distribution Certificate
pursuant hereto (other than a transfer as to which the proposed
transferee has provided a certificate in the form of Exhibit D-2), the
Eligible Lender Trustee in its sole discretion, may require that there
shall also be delivered to the Eligible Lender Trustee, the Excess
Distribution Certificate Registrar, the Administrator, or, if it is not
the proposed transferor, the Depositor, at the expense of the
transferor, an opinion of counsel that such transfer may be made
pursuant to an exemption from the Securities Act and such state
securities laws. Any such opinion of counsel shall not be an expense of
the Eligible Lender Trustee, the Excess Distribution Certificate
Registrar, the Administrator, and, if it is not the proposed
transferor, the Depositor. None of the Depositor, the Administrator or
the Eligible Lender Trustee is obligated to register or qualify the
Excess Distribution Certificate under the Securities Act or any other
securities law or to take any action not otherwise required under this
Agreement to permit the transfer of the Excess Distribution Certificate
without registration or qualification. Any such holder of the Excess
Distribution Certificate desiring to effect such transfer shall, and
does hereby agree to, indemnify the Eligible Lender Trustee, the Excess
Distribution Certificate Registrar, the Administrator, and, if it is
not the proposed transferor, the Depositor, against any liability that
may result if the transfer is not so exempt or is made in accordance
with such applicable federal and state laws.
(B) No transfer of the Excess Distribution
Certificate will be registered by the Eligible Lender Trustee or the
Excess Distribution Certificate Registrar unless the
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Eligible Lender Trustee, the Excess Distribution Certificate Registrar,
the Administrator, and, if it is not the proposed transferor, the
Depositor receives a representation from the proposed transferee of the
Excess Distribution Certificate, substantially in the form of Exhibit
D-1 or D-2, as the case may be, that such transferee is not acquiring
the Excess Distribution Certificate directly or indirectly for, on
behalf of or with the assets of a Plan. If any proposed transferee
shall become a holder of the Excess Distribution Certificate in
violation of these provisions, then the last preceding permitted
transferee shall be restored, to the extent permitted by law, to all
rights as holder of the Excess Distribution Certificate, retroactive to
the date of registration of such transfer of the Excess Distribution
Certificate. Neither the Eligible Lender Trustee nor the Excess
Distribution Certificate Registrar shall have any liability to any
person for any registration or transfer of the Excess Distribution
Certificate that is not permitted or for making any payments due on the
Excess Distribution Certificate to the holder thereof or for taking any
action with respect to such holder under this Agreement. Any proposed
transferee who becomes a holder of the Excess Distribution Certificate
shall agree to indemnify the Eligible Lender Trustee, the Excess
Distribution Certificate Registrar, any Swap Counterparty, the
Administrator, and, if it is not the proposed transferor, the
Depositor, against any loss, damage or penalty incurred as a result of
the transfer of the Excess Distribution Certificate to such proposed
transferee in violation of such restrictions.
(C) The prospective transferee shall be aware
that the Excess Distribution Certificate shall bear legends referring
to the restrictions contained in sub-clauses (A) and (B) above and by
its acceptance of the Excess Distribution Certificate agrees to abide
by such restrictions.
(D) The prospective transferee shall deliver an
opinion of counsel addressed to the Eligible Lender Trustee, any Swap
Counterparty, the Administrator, and, if it is not the proposed
transferor, the Depositor, to the effect that, (1) as a matter of
federal income tax law, such prospective transferee is permitted to
accept the transfer of the Excess Distribution Certificate, (2) such
transfer or pledge would not jeopardize the tax treatment of the Trust,
(3) such transfer or pledge would not subject the Trust to any
entity-level tax, (4) such transfer or pledge would not jeopardize the
status of the Notes as debt for all purposes, and (5) such pledge or
transfer would not cause the Trust to be treated, for federal income
tax purposes, as an association or a publicly traded partnership
taxable as a corporation.
(E) No pledge or transfer of the Excess
Distribution Certificate shall be effective unless such purchase or
transfer is to a single beneficial owner who shall be the registered
holder of the Excess Distribution Certificate.
ARTICLE IV
Actions by Eligible Lender Trustee
SECTION 4.1 Prior Notice to the Holder of the Excess Distribution
Certificate With Respect to Certain Matters. With respect to the following
matters, the Eligible Lender Trustee shall not take action unless at least 30
days before the taking of such action, the Eligible
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Lender Trustee shall have notified the holder of the Excess Distribution
Certificate and each of the Rating Agencies in writing of the proposed action
and the holder of the Excess Distribution Certificate shall not have notified
the Eligible Lender Trustee in writing prior to the 30th calendar day after such
notice is given that it has withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust
(except claims or lawsuits brought in connection with the
collection of the Trust Student Loans) and the compromise of
any material action, claim or lawsuit brought by or against
the Trust (except with respect to the aforementioned claims or
lawsuits for collection of Trust Student Loans);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any class of Noteholders is
required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any class of Noteholder is
not required and such amendment materially adversely affects
the interests of the holder of the Excess Distribution
Certificate; or
(d) the amendment of the Interest Rate Cap Agreement or any Swap
Agreement in circumstances where the consent of any class of
Noteholders is required or in circumstances where the consent
of Noteholders is not required but where such amendment
materially adversely affects the interests of the holder of
the Excess Distribution Certificate.
SECTION 4.2 Action with Respect to Sale of the Trust Student Loans. The
Eligible Lender Trustee shall not have the power, except upon the written
direction of the holder of the Excess Distribution Certificate and except as
expressly provided in the Basic Documents, to sell the Trust Student Loans after
the payment in full of the Notes.
SECTION 4.3 Action with Respect to Bankruptcy. The Eligible Lender
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the prior approval of the holder of the
Excess Distribution Certificate and the delivery to the Eligible Lender Trustee
by the holder of the Excess Distribution Certificate of a certificate certifying
that the holder of the Excess Distribution Certificate reasonably believes that
the Trust is insolvent.
SECTION 4.4 Restrictions. Neither the Depositor nor the holder of the
Excess Distribution Certificate shall direct the Eligible Lender Trustee to take
or refrain from taking any action if such action or inaction would be contrary
to any obligation of the Trust or the Eligible Lender Trustee under this
Agreement or any of the other Basic Documents or would be contrary to Section
2.3 nor shall the Eligible Lender Trustee be permitted to follow any such
direction, if given.
SECTION 4.5 Intentionally Omitted.
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ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.1 Application of Trust Funds.
(a) On each Distribution Date, the Eligible Lender Trustee shall
distribute to the holder of the Excess Distribution
Certificate any amounts payable in respect of the Excess
Distribution Certificate in accordance with the Administration
Agreement.
(b) In the event that any withholding tax is imposed on the
Trust's payment to the holder of the Excess Distribution
Certificate, such tax shall reduce the amount otherwise
distributable on the Excess Distribution Certificate.
SECTION 5.2 Method of Payment. Subject to Section 9.1(c), distributions
required to be made to the holder of the Excess Distribution Certificate on any
Distribution Date shall be made to the holder of record on the preceding Record
Date either by wire transfer, in immediately available funds, to the account of
such holder at a bank or other entity having appropriate facilities therefor, if
such holder shall have provided to the Excess Distribution Certificate Registrar
appropriate written instructions signed by two authorized officers, if any, at
least five Business Days prior to such Distribution Date, or, if not, by check
mailed to such holder at the address of such holder appearing in the Excess
Distribution Certificate Register.
SECTION 5.3 No Segregation of Moneys; No Interest. Subject to Section
5.1, moneys received by the Eligible Lender Trustee hereunder need not be
segregated in any manner except to the extent required by law or the
Administration Agreement and may be deposited under such general conditions as
may be prescribed by law, and the Eligible Lender Trustee shall not be liable
for any interest thereon.
SECTION 5.4 Reports to the Holder of the Excess Distribution
Certificate, the Internal Revenue Service and Others. The Eligible Lender
Trustee shall provide (or cause to be provided) any reports or other information
required to be provided to the holder of the Excess Distribution Certificate
pursuant to the Code, the regulations promulgated thereunder or other applicable
law. In addition, the Eligible Lender Trustee shall provide (or cause to be
provided) any information concerning the Excess Distribution Certificate to the
Internal Revenue Service or other taxing authority as required under the Code,
the regulations promulgated thereunder or other applicable law. The Eligible
Lender Trustee shall be entitled to hire an independent accounting firm to
perform the functions described in this Section 5.4, the reasonable fees and
expenses of which shall be paid by the Depositor.
SECTION 5.5 Intentionally Omitted.
SECTION 5.6 Intentionally Omitted.
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ARTICLE VI
Authority and Duties of Eligible Lender Trustee
SECTION 6.1 General Authority. The Eligible Lender Trustee is
authorized and directed to execute and deliver the Basic Documents to which the
Trust is to be a party and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents to which the Trust is to be a
party, in each case, in such form as the Depositor shall approve as evidenced
conclusively by the Eligible Lender Trustee's execution thereof, and, on behalf
of the Trust, to direct the Indenture Trustee to authenticate and deliver Notes
in the aggregate principal amount of $2,025,404,000. The Eligible Lender Trustee
is also authorized and directed on behalf of the Trust (i) to acquire and hold
legal title to the Trust Student Loans from the Depositor and (ii) to take all
actions required pursuant to Section 3.2(c) of the Administration Agreement and
otherwise follow the direction of and cooperate with the Servicer in submitting,
pursuing and collecting any claims to and with the Department with respect to
any Interest Subsidy Payments and Special Allowance Payments relating to the
Trust Student Loans.
In addition to the foregoing, the Eligible Lender Trustee is authorized
to take all actions required of the Trust pursuant to the Basic Documents. The
Eligible Lender Trustee is further authorized from time to time to take such
action as the Administrator directs or instructs with respect to the Basic
Documents and is directed to take such action to the extent that the
Administrator is expressly required pursuant to the Basic Documents to cause the
Eligible Lender Trustee to act.
SECTION 6.2 General Duties. It shall be the duty of the Eligible Lender
Trustee to discharge (or cause to be discharged) all its responsibilities
pursuant to the terms of this Agreement, the other Basic Documents to which the
Trust is a party and to administer the Trust in the interest of the Noteholders,
any Swap Counterparties and the holder of the Excess Distribution Certificate
subject to and in accordance with the provisions of this Agreement and the other
Basic Documents. Without limiting the foregoing, the Eligible Lender Trustee
shall on behalf of the Trust file and prove any claim or claims that may exist
on behalf of the Trust against the Depositor in connection with any claims
paying procedure as part of an insolvency or a receivership proceeding involving
the Depositor. Notwithstanding the foregoing, the Eligible Lender Trustee shall
be deemed to have discharged its duties and responsibilities hereunder and under
the other Basic Documents to the extent the Administrator has agreed in the
Administration Agreement to perform and act or to discharge any duty of the
Eligible Lender Trustee hereunder or under any other Basic Document, and the
Eligible Lender Trustee shall not be held liable for the default or failure of
the Administrator to carry out its obligations under the Administration
Agreement. Except as expressly provided in the Basic Documents, the Eligible
Lender Trustee shall have no obligation to administer, service or collect the
Trust Student Loans or to maintain, monitor or otherwise supervise the
administration, servicing or collection of the Trust Student Loans.
SECTION 6.3 Action upon Instruction.
(a) [Reserved].
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(b) The Eligible Lender Trustee shall not be required to take any
action hereunder or under any other Basic Document if the Eligible Lender
Trustee shall have reasonably determined, or shall have been advised by counsel,
that such action is likely to result in liability on the part of the Eligible
Lender Trustee or is contrary to the terms hereof, any other Basic Document or
is otherwise contrary to law.
(c) Whenever the Eligible Lender Trustee is unable to determine the
appropriate course of action between alternative courses and actions permitted
or required by the terms of this Agreement or under any other Basic Document,
the Eligible Lender Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the holder of the Excess Distribution
Certificate requiring instruction as to the course of action to be adopted, and
to the extent the Eligible Lender Trustee acts in good faith in accordance with
any written instruction of the holder of the Excess Distribution Certificate
received, the Eligible Lender Trustee shall not be liable on account of such
action to any Person. If the Eligible Lender Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement, the other Basic
Documents, as it shall deem to be in the best interests of the holder of the
Excess Distribution Certificate, and shall have no liability to any Person for
such action or inaction.
(d) In the event that the Eligible Lender Trustee is unsure as to the
application of any provision of this Agreement, any other Basic Document or any
such provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Eligible Lender Trustee or is silent
or is incomplete as to the course of action that the Eligible Lender Trustee is
required to take with respect to a particular set of facts, the Eligible Lender
Trustee may give notice (in such form as shall be appropriate under the
circumstances) to the holder of the Excess Distribution Certificate requesting
instruction and, to the extent that the Eligible Lender Trustee acts or refrains
from acting in good faith in accordance with any such instruction received, the
Eligible Lender Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Eligible Lender Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the other Basic
Documents, as it shall deem to be in the best interest of the holder of the
Excess Distribution Certificate, and shall have no liability to any Person for
such action or inaction.
SECTION 6.4 No Duties Except as Specified in this Agreement or in
Instructions. The Eligible Lender Trustee shall not have any duty or obligation
to manage, make any payment with respect to, register, record, sell, service,
dispose of or otherwise deal with the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Eligible Lender Trustee is a party, except as
expressly provided by the terms of this Agreement or in any document or written
instruction received by the Eligible Lender Trustee pursuant to Section 6.3; and
no implied duties or obligations shall be read into this Agreement or any other
Basic Document against the Eligible Lender Trustee. The Eligible Lender Trustee
shall have no responsibility for filing any financing or continuation
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statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder or to
prepare or file any Commission filing for the Trust or to record this Agreement
or any other Basic Document. The Eligible Lender Trustee nevertheless agrees
that it will, at its own cost and expense, promptly take all action as may be
necessary to discharge any Liens on any part of the Trust Estate that result
from actions by, or claims against, Chase Manhattan Bank USA, National
Association in its individual capacity or as the Eligible Lender Trustee that
are not related to the ownership or the administration of the Trust Estate.
SECTION 6.5 No Action Except under Specified Documents or Instructions.
The Eligible Lender Trustee shall not otherwise deal with any part of the Trust
Estate except (i) in accordance with the powers granted to and the authority
conferred upon the Eligible Lender Trustee pursuant to this Agreement, (ii) in
accordance with the other Basic Documents to which it is a party and (iii) in
accordance with any document or instruction delivered to the Eligible Lender
Trustee pursuant to Section 6.3.
SECTION 6.6 Restrictions. The Eligible Lender Trustee shall not take
any action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Eligible Lender Trustee,
would result in the Trust's becoming taxable as a corporation for Federal income
tax purposes. Neither the Depositor nor the holder of the Excess Distribution
Certificate shall direct the Eligible Lender Trustee to take action that would
violate the provisions of this Section.
ARTICLE VII
Concerning the Eligible Lender Trustee
SECTION 7.1 Acceptance of Trusts and Duties. The Eligible Lender
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Eligible Lender Trustee also agrees to disburse all moneys actually received
by it constituting part of the Trust Estate upon the terms of this Agreement and
the other Basic Documents. The Eligible Lender Trustee shall not be answerable
or accountable hereunder or under any other Basic Document under any
circumstances, except (i) for its own willful misconduct or negligence or (ii)
in the case of the inaccuracy of any representation or warranty contained in
Section 7.3 expressly made by the Eligible Lender Trustee. In particular, but
not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) the Eligible Lender Trustee shall not be liable for any error of
judgment made by a responsible officer of the Eligible Lender Trustee;
(b) the Eligible Lender Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the direction or
instructions of the Administrator, the Depositor or the holder of the Excess
Distribution Certificate;
(c) no provision of this Agreement or any other Basic Document shall
require the Eligible Lender Trustee to expend or risk funds or otherwise incur
any financial liability in the
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performance of any of its rights or powers hereunder or under any other Basic
Document, if the Eligible Lender Trustee shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Eligible Lender Trustee be liable
for indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(e) the Eligible Lender Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Estate or for or in respect
of the validity or sufficiency of the Basic Documents, other than the
certificate of authentication on the Excess Distribution Certificate, and the
Eligible Lender Trustee shall in no event assume or incur any liability, duty,
or obligation to any Noteholder or the holder of the Excess Distribution
Certificate, other than as expressly provided for herein and in the other Basic
Documents;
(f) the Eligible Lender Trustee shall not be liable for the action or
inaction, default or misconduct of the Administrator, the Depositor, the
Indenture Trustee, the Servicer, any Swap Counterparty, any Remarketing Agent
under any of the other Basic Documents or otherwise and the Eligible Lender
Trustee shall have no obligation or liability to perform the obligations of the
Trust under this Agreement or the other Basic Documents that are required to be
performed by the Administrator under the Administration Agreement, the Indenture
Trustee under the Indenture or the Servicer under the Servicing Agreement; and
(g) the Eligible Lender Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or otherwise or
in relation to this Agreement, any other Basic Document, at the request, order
or direction of the Depositor or holder of the Excess Distribution Certificate,
unless the Depositor or such holder has offered to the Eligible Lender Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Eligible Lender Trustee therein or
thereby. The right of the Eligible Lender Trustee to perform any discretionary
act enumerated in this Agreement or in any other Basic Document shall not be
construed as a duty, and the Eligible Lender Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of any such
act.
SECTION 7.2 Intentionally Omitted.
SECTION 7.3 Representations and Warranties. The Eligible Lender Trustee
hereby represents and warrants to the Depositor, for the benefit of the
Noteholders and the holder of the Excess Distribution Certificate, that:
(a) It is duly organized and validly existing in good standing under
the laws of its governing jurisdiction and has an office located within the
State of Delaware. It has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
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(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, nor
the consummation by it of the transactions contemplated hereby nor compliance by
it with any of the terms or provisions hereof will contravene any Federal or
Delaware state law, governmental rule or regulation governing the banking or
trust powers of the Eligible Lender Trustee or any judgment or order binding on
it, or constitute any default under its charter documents or by-laws or any
indenture, mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound.
(d) It is and will maintain its status as an "eligible lender" (as such
term is defined in Section 435(d) of the Higher Education Act) for purposes of
holding legal title to the Trust Student Loans as contemplated by this Agreement
and the other Basic Documents, it has a lender identification number with
respect to the Trust Student Loans from the Department and has and will maintain
in effect a Guarantee Agreement with each of the Guarantors with respect to the
Trust Student Loans.
SECTION 7.4 Reliance; Advice of Counsel.
(a) The Eligible Lender Trustee shall incur no liability to anyone in
acting upon any signature, instrument, direction, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper
believed by it to be genuine and believed by it to be signed by the proper party
or parties. The Eligible Lender Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter the
method of the determination of which is not specifically prescribed herein, the
Eligible Lender Trustee may for all purposes hereof rely on a certificate,
signed by the president or any vice president or by the treasurer or other
authorized officers of the relevant party, as to such fact or matter and such
certificate shall constitute full protection to the Eligible Lender Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the other
Basic Documents, the Eligible Lender Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them and the
Eligible Lender Trustee shall not be liable for the conduct or misconduct of
such agents or attorneys if such agents or attorneys shall have been selected by
the Eligible Lender Trustee with reasonable care, and (ii) may consult with
counsel and accountants to be selected with reasonable care and employed by it.
The Eligible Lender Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the written opinion or advice of
any such counsel or accountants and not contrary to this Agreement or any other
Basic Document.
SECTION 7.5 Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created Chase Manhattan Bank
USA, National
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Association acts solely as Eligible Lender Trustee hereunder and not in its
individual capacity and all Persons having any claim against the Eligible Lender
Trustee by reason of the transactions contemplated by this Agreement or any
other Basic Document shall look only to the Trust Estate for payment or
satisfaction thereof.
SECTION 7.6 Eligible Lender Trustee Not Liable for Excess Distribution
Certificate or Trust Student Loans. The recitals contained herein and in the
Excess Distribution Certificate (other than the signature of and authentication
by the Eligible Lender Trustee on the Excess Distribution Certificate) shall be
taken as the statements of the Depositor and the Eligible Lender Trustee assumes
no responsibility for the correctness thereof. The Eligible Lender Trustee makes
no representations as to the validity or sufficiency of this Agreement, the
Excess Distribution Certificate, or any other Basic Document (other than the
signature of and authentication by the Eligible Lender Trustee on the Excess
Distribution Certificate), or the Notes, or of any Trust Student Loan or related
documents. The Eligible Lender Trustee shall at no time have any responsibility
(or liability except for willfully or negligently terminating or allowing to be
terminated any of the Guarantee Agreements, in a case where the Eligible Lender
Trustee knows of any facts or circumstances which will or could reasonably be
expected to result in any such termination) for or with respect to the legality,
validity, enforceability and eligibility for Guarantee Payments, federal
reinsurance, Interest Subsidy Payments or Special Allowance Payments, as
applicable, in respect of any Trust Student Loan, or for or with respect to the
sufficiency of the Trust Estate or its ability to generate the payments to be
distributed to the holder of the Excess Distribution Certificate under this
Agreement or the Noteholders under the Indenture, including the existence and
contents of any computer or other record of any Trust Student Loan; the validity
of the assignment of any Trust Student Loan to the Eligible Lender Trustee on
behalf of the Trust; the completeness of any Trust Student Loan; the performance
or enforcement (except as expressly set forth in any Basic Document) of any
Trust Student Loan; the compliance by the Depositor or the Servicer with any
warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation or any action or
inaction of the Administrator, the Indenture Trustee or the Servicer or any
subservicer taken in the name of the Eligible Lender Trustee.
SECTION 7.7 Eligible Lender Trustee May Own Notes. The Eligible Lender
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may deal with the Depositor, the holder of the Excess Distribution
Certificate, the Administrator, the Indenture Trustee or the Servicer in banking
transactions with the same rights as it would have if it were not Eligible
Lender Trustee.
ARTICLE VIII
Compensation and Indemnity of Eligible Lender Trustee
SECTION 8.1 Eligible Lender Trustee's Fees and Expenses. The Eligible
Lender Trustee shall receive as compensation for its services hereunder such
fees as have been separately agreed upon before the date hereof between the
Depositor and the Eligible Lender Trustee, and the Eligible Lender Trustee shall
be entitled to be reimbursed by the Depositor, to the extent provided in such
separate agreement, for its other reasonable expenses (including the reasonable
fees and expenses of counsel and independent accountants) hereunder.
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SECTION 8.2 Payments to the Eligible Lender Trustee. Any amounts paid
to the Eligible Lender Trustee pursuant to Section 8.1 hereof or pursuant to
Section 9 of the Sale Agreement, Section 4.2 of the Administration Agreement or
Section 4.2 of the Servicing Agreement shall be deemed not to be a part of the
Trust Estate immediately after such payment.
SECTION 8.3 Indemnity. The Depositor shall cause the Administrator to
indemnify the Eligible Lender Trustee in its individual capacity and any of its
officer, directors, employees and agents as and to the extent provided for in
Section 4.2 of the Administration Agreement.
ARTICLE IX
Termination of Trust Agreement
SECTION 9.1 Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) and the Trust shall
terminate and be of no further force or effect upon the final distribution by
the Excess Distribution Certificate Paying Agent of all moneys or other property
or proceeds of the Trust Estate in accordance with the terms of the Indenture,
the Administration Agreement and Article V. The bankruptcy, liquidation,
dissolution, death or incapacity of the holder of the Excess Distribution
Certificate shall not (x) operate to terminate this Agreement or the Trust, nor
(y) entitle such holder's legal representatives or heirs to claim an accounting
or to take any action or proceeding in any court for a partition or winding up
of all or any part of the Trust or Trust Estate nor (z) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a), none of the Depositor, any
Noteholder or the holder of the Excess Distribution Certificate shall be
entitled to revoke or terminate the Trust.
Upon final distribution of any funds remaining in the Trust, the
Eligible Lender Trustee shall file a certificate of cancellation of the Trust's
certificate of trust pursuant to Section 3810(c) of the Delaware Statutory Trust
Act.
ARTICLE X
Successor Eligible Lender Trustees and
Additional Eligible Lender Trustees
SECTION 10.1 Eligibility Requirements for Eligible Lender Trustee. The
Eligible Lender Trustee shall at all times be a corporation or association (i)
qualifying as an "eligible lender" as such term is defined in Section 435(d) of
the Higher Education Act for purposes of holding legal title to the Trust
Student Loans on behalf of the Trust, with a valid lender identification number
with respect to the Trust Student Loans from the Department; (ii) being
authorized to exercise corporate trust powers and hold legal title to the Trust
Student Loans; (iii) having in effect Guarantee Agreements with each of the
Guarantors; (iv) having a combined capital and surplus of at least $50,000,000
and being subject to supervision or examination by Federal or state authorities;
(v) having its principal place of business in the State of Delaware and
otherwise complying with Section 3807 of the Delaware Statutory Trust Act; and
(vi) having (or
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having a parent which has) a rating in respect of its long-term senior unsecured
debt of at least "BBB-" (or the equivalent) by each of the Rating Agencies (or
which, if the long-term senior unsecured debt of such corporation or association
is not rated by any Rating Agency, shall have provided to the Indenture Trustee
written confirmation from such Rating Agency that the appointment of such
corporation or association to serve as Eligible Lender Trustee will not result
in and of itself in a reduction or withdrawal of the then current rating of any
of the Notes). If the Eligible Lender Trustee shall publish reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section, the
combined capital and surplus of the Eligible Lender Trustee shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Eligible Lender Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Eligible Lender Trustee shall resign immediately in the manner and with the
effect specified in Section 10.2.
SECTION 10.2 Resignation or Removal of Eligible Lender Trustee. The
Eligible Lender Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Administrator. Upon
receiving such notice of resignation, the Administrator shall promptly appoint a
successor Eligible Lender Trustee meeting the eligibility requirements of
Section 10.1 by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Eligible Lender Trustee and one copy to the
successor Eligible Lender Trustee. If no successor Eligible Lender Trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Eligible Lender Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Eligible Lender Trustee; provided, however, that such right to appoint or to
petition for the appointment of any such successor shall in no event relieve the
resigning Eligible Lender Trustee from any obligations otherwise imposed on it
under the Basic Documents until such successor has in fact assumed such
appointment.
If at any time the Eligible Lender Trustee shall cease to be or shall
be likely to cease to be eligible in accordance with the provisions of Section
10.1 and shall fail to resign after written request therefor by the
Administrator, or if at any time an Insolvency Event with respect to the
Eligible Lender Trustee shall have occurred and be continuing, then the
Administrator may remove the Eligible Lender Trustee. If the Administrator shall
remove the Eligible Lender Trustee under the authority of the immediately
preceding sentence, the Administrator shall promptly appoint a successor
Eligible Lender Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Eligible Lender Trustee so removed
and one copy to the successor Eligible Lender Trustee and payment of all fees
owed to the outgoing Eligible Lender Trustee.
Any resignation or removal of the Eligible Lender Trustee and
appointment of a successor Eligible Lender Trustee pursuant to any of the
provisions of this Section shall not become effective until acceptance of
appointment by the successor Eligible Lender Trustee pursuant to Section 10.3,
payment of all fees and expenses owed to the outgoing Eligible Lender Trustee
and the filing of a certificate of amendment to the Trust's certificate of trust
pursuant to Section 3810(b) of the Delaware Statutory Trust Act. The
Administrator shall provide notice of such resignation or removal of the
Eligible Lender Trustee and to each of the Rating Agencies.
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SECTION 10.3 Successor Eligible Lender Trustee. Any successor Eligible
Lender Trustee appointed pursuant to Section 10.2 shall execute, acknowledge and
deliver to the Administrator and to its predecessor Eligible Lender Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Eligible Lender Trustee shall become
effective and such successor Eligible Lender Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like effect
as if originally named as Eligible Lender Trustee. The predecessor Eligible
Lender Trustee shall upon payment of its fees and expenses deliver to the
successor Eligible Lender Trustee all documents, statements, moneys and
properties held by it under this Agreement and shall assign, if permissible, to
the successor Eligible Lender Trustee the lender identification number obtained
from the Department on behalf of the Trust; and the Administrator and the
predecessor Eligible Lender Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Eligible Lender Trustee all such rights,
powers, duties and obligations.
No successor Eligible Lender Trustee shall accept such appointment as
provided in this Section unless at the time of such acceptance such successor
Eligible Lender Trustee shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Eligible Lender Trustee
pursuant to this Section, the Administrator shall mail notice of the successor
of such Eligible Lender Trustee to the holder of the Excess Distribution
Certificate, the Indenture Trustee, the Noteholders and the Rating Agencies. If
the Administrator shall fail to mail such notice within 10 days after acceptance
of appointment by the successor Eligible Lender Trustee, the successor Eligible
Lender Trustee shall cause such notice to be mailed at the expense of the
Administrator.
SECTION 10.4 Merger or Consolidation of Eligible Lender Trustee. Any
corporation into which the Eligible Lender Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Eligible Lender Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Eligible Lender Trustee, shall, without the execution or
filing of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding, be the successor of the
Eligible Lender Trustee hereunder; provided that such corporation shall be
eligible pursuant to Section 10.1; and provided further that the Eligible Lender
Trustee shall mail notice of such merger or consolidation to the Rating Agencies
not less than 15 days prior to the effective date thereof.
SECTION 10.5 Appointment of Co-Eligible Lender Trustee or Separate
Eligible Lender Trustee. Notwithstanding any other provisions of this Agreement,
at any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust may at the time be located, the
Administrator and the Eligible Lender Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Eligible Lender Trustee, meeting the eligibility
requirements of clauses (i) through (iii) of Section 10.1, to act as co-trustee,
jointly with the Eligible Lender Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Estate, and to vest in such Person, in
such capacity, such title to the Trust Estate, or any part thereof, and, subject
to the other provisions of
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this Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Eligible Lender Trustee may consider necessary or
desirable. If the Administrator shall not have joined in such appointment within
15 days after the receipt by it of a request so to do, the Eligible Lender
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to clauses (iv), (v) and (vi) of
Section 10.1 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred
or imposed upon the Eligible Lender Trustee shall be conferred upon and
exercised or performed by the Eligible Lender Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Eligible Lender Trustee joining in such act), except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed, the Eligible Lender Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights,
powers, duties, and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee,
solely at the direction of the Eligible Lender Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Eligible Lender Trustee
acting jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Eligible Lender
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Eligible
Lender Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Eligible Lender Trustee. Each such instrument shall be filed
with the Eligible Lender Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Eligible
Lender Trustee as its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Eligible Lender Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
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ARTICLE XI
Miscellaneous
SECTION 11.1 Supplements and Amendments. This Agreement may be amended
by the holder of the Excess Distribution Certificate and the Eligible Lender
Trustee, with prior written notice to the Rating Agencies, without the consent
of any of the Noteholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement or
modifying in any manner the rights of the Noteholders; provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interests of any Noteholder.
This Agreement may also be amended from time to time by the holder of
the Excess Distribution Certificate and the Eligible Lender Trustee, with prior
written notice to the Rating Agencies, with the consent of (i) the Class A
Noteholders evidencing not less than a majority of the Outstanding Amount of the
Class A Notes and (ii) the Class B Noteholders evidencing not less than a
majority of the Class B Notes, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
modifying in any manner the rights of the Class A Noteholders or Class B
Noteholders, as the case may be; provided, however, that no such amendment shall
(a) increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Trust Student Loans or distributions that
shall be required to be made for the benefit of the Noteholders or (b) reduce
the aforesaid percentage of the Outstanding Amount of any class of Notes
required to consent to any such amendment, without the consent of all the
outstanding Noteholders of such class.
Promptly after the execution of any such amendment or consent, the
Eligible Lender Trustee shall furnish written notification of the substance of
such amendment or consent to the holder of the Excess Distribution Certificate,
the Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of the Noteholders or the
Indenture Trustee pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of provided for in this Agreement or in any other Basic Document)
and of evidencing the authorization of the execution thereof shall be subject to
such reasonable requirements as the Eligible Lender Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the Eligible
Lender Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement. The Eligible Lender Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Eligible Lender Trustee's own rights,
duties or immunities under this Agreement or otherwise.
SECTION 11.2 No Legal Title to Trust Estate in Holder of the Excess
Distribution Certificate. The holder of the Excess Distribution Certificate
shall not have legal title to any part of the Trust Estate. The holder of the
Excess Distribution Certificate shall be entitled to receive
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distributions with respect to its undivided beneficial ownership interest
therein only in accordance with Section 3.13 of this Agreement. No transfer, by
operation of law or otherwise, of any right, title, or interest of the holder of
the Excess Distribution Certificate to and in its beneficial ownership interest
in the Trust Estate shall operate to terminate this Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Trust Estate.
SECTION 11.3 Limitations on Rights of Others. Except for Section 2.7,
the provisions of this Agreement are solely for the benefit of the Eligible
Lender Trustee, the Depositor, the holder of the Excess Distribution
Certificate, the Administrator and, to the extent expressly provided herein, the
Indenture Trustee and the Noteholders, and nothing in this Agreement (other than
Section 2.7), whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Trust Estate
or under this Agreement or any covenants, conditions or provisions contained
herein.
SECTION 11.4 Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all notices shall be in writing and shall be deemed given
upon receipt by the intended recipient or three Business Days after mailing if
mailed by certified mail, postage prepaid (except that notice to the Eligible
Lender Trustee shall be deemed given only upon actual receipt by the Eligible
Lender Trustee), if to the Eligible Lender Trustee, addressed to its Corporate
Trust Office with copies to The Bank of New York, 0 Xxxxx XxXxxxx Xx., Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Corporate Trust - Structured Finance; if to
the Depositor, addressed to SLM Funding LLC, 00000 Xxxxxx Xxx Xxxxx, Xxxxxx,
Xxxxxxxx 00000, Attention: Legal Department, or, as to each party, at such other
address as shall be designated by such party in a written notice to each other
party.
SECTION 11.5 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.6 Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon and inure to the benefit of, the
Depositor and its successors, the Eligible Lender Trustee and its successors,
each holder of the Excess Distribution Certificate and its successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a Noteholder or the holder of
the Excess Distribution Certificate shall bind the successors and assigns of
such holder.
SECTION 11.8 No Petition.
(a) Neither the Depositor, nor any other holder of the Excess
Distribution Certificate (as evidenced by its acceptance of the Excess
Distribution Certificate) will institute against the
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Trust, at any time, any bankruptcy proceedings under any United States Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Excess Distribution Certificate, the Notes, this Agreement or any of the
other Basic Documents.
(b) The Eligible Lender Trustee (not in its individual capacity but
solely as Eligible Lender Trustee), by entering into this Agreement, the holder
of the Excess Distribution Certificate by accepting the Excess Distribution
Certificate, and the Indenture Trustee and each Noteholder by accepting the
benefits of this Agreement, hereby covenant and agree that they will not at any
time institute against the Depositor or the Trust, or join in any institution
against the Depositor or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency, receivership or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes, this Agreement or any
of the other Basic Documents. The foregoing shall not limit the rights of the
Eligible Lender Trustee to file any claim in, or otherwise take any action with
respect to, any insolvency proceeding that was instituted against the Issuer by
a Person other than the Eligible Lender Trustee.
SECTION 11.9 No Recourse. Each holder of the Excess Distribution
Certificate by accepting the Excess Distribution Certificate acknowledges that
such holder's certificate represents beneficial interests in the Trust only and
do not represent interests in or obligations of the Depositor, the Servicer, the
Administrator, the Eligible Lender Trustee, the Indenture Trustee, any Swap
Counterparty, any Remarketing Agent or any Affiliate thereof or any officer,
director or employee of any thereof and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated in
this Agreement, the Excess Distribution Certificate or the other Basic
Documents.
SECTION 11.10 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION,
not in its individual capacity but solely as
Eligible Lender Trustee
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Vice President
SLM FUNDING LLC,
as the Depositor
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Vice President
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Acknowledged and agreed as to
Section 3.13(c) and Section 3.13(g)
of this Trust Agreement
THE BANK OF NEW YORK,
not in its individual capacity but solely
as the initial Excess Distribution
Certificate Paying Agent
By: /s/ XXXX X. XXXXXXX
Name: Xxxx X. Xxxxxxx
Title: Agent
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EXHIBIT A
TO THE TRUST AGREEMENT
[FORM OF EXCESS DISTRIBUTION CERTIFICATE]
[SEE REVERSE FOR CERTAIN DEFINITIONS]
No. [__] [___]% Percentage Interest
THIS EXCESS DISTRIBUTION CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION
OF, OR AN INTEREST IN, AND IS NOT GUARANTEED BY THE DEPOSITOR, THE ELIGIBLE
LENDER TRUSTEE, THE INDENTURE TRUSTEE, THE SERVICER, ANY SWAP COUNTERPARTY, ANY
REMARKETING AGENT, THE ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES OR
ASSIGNEES. THIS EXCESS DISTRIBUTION CERTIFICATE IS NOT INSURED OR GUARANTEED BY
ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY PRIVATE INSURER.
THIS EXCESS DISTRIBUTION CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY UNITED STATES
SECURITIES OR "BLUE SKY" LAWS OR ANY SECURITIES LAWS OF ANY OTHER JURISDICTION.
THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE
TRUST THAT THIS CERTIFICATE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
(I) TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, OR (II) TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS AN
INSTITUTIONAL ACCREDITED INVESTOR TO WHOM NOTICE IS GIVEN THAT THE RESALE,
PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON REGULATION D, AND IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER
JURISDICTION, OR (III) TO A PERSON IN A TRANSACTION THAT IS REGISTERED UNDER THE
SECURITIES ACT OR THAT IS OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER HEREOF,
BY PURCHASING THIS EXCESS DISTRIBUTION CERTIFICATE, REPRESENTS AND AGREES FOR
THE BENEFIT OF THE DEPOSITOR, THE ADMINISTRATOR AND THE ELIGIBLE LENDER TRUSTEE
THAT: IT IS EITHER A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A, OR AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1)-(3)
AND (7) OF REGULATION D UNDER THE SECURITIES ACT) OR AN ENTITY IN WHICH ALL THE
EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS, OR THAT ITS PURCHASE OF THIS EXCESS
DISTRIBUTION CERTIFICATE IS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR IS OTHERWISE EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE
A-1
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS,
AND THAT IT IS HOLDING THIS EXCESS DISTRIBUTION CERTIFICATE FOR INVESTMENT
PURPOSES AND NOT FOR DISTRIBUTION.
NO TRANSFER OF THIS EXCESS DISTRIBUTION CERTIFICATE WILL BE REGISTERED
(EXCEPT TO AN AFFILIATE OF THE DEPOSITOR) UNLESS THERE IS PROVIDED A
REPRESENTATION SATISFACTORY TO THE ELIGIBLE LENDER TRUSTEE THAT THIS EXCESS
DISTRIBUTION CERTIFICATE IS NOT BEING ACQUIRED DIRECTLY OR INDIRECTLY FOR, ON
BEHALF OF OR WITH THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA") AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (EACH A "PLAN").
THIS EXCESS DISTRIBUTION CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE
ACCOUNT OF A BENEFIT PLAN (AS DEFINED BELOW). THIS CERTIFICATE IS NOT GUARANTEED
OR INSURED BY ANY GOVERNMENTAL AGENCY.
A-2
SLM STUDENT LOAN TRUST 2003-11
EXCESS DISTRIBUTION CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of student loans sold to
the Trust by SLM Funding LLC on the Closing Date.
(This Excess Distribution Certificate does not represent an interest in
or obligation of SLM Funding LLC, the Servicer (as defined below), the
Eligible Lender Trustee (as defined below) or any of their respective
affiliates, except to the extent described below.)
THIS CERTIFIES THAT SLM Funding LLC is the registered owner of a 100%
percentage interest in this Excess Distribution Certificate. The SLM Student
Loan Trust 2003-11 (the "Trust") was formed under the laws of the State of
Delaware by SLM Funding LLC, a Delaware limited liability company (the
"Depositor"). The Trust was created pursuant to a Trust Agreement, dated as of
October 1, 2003 (the "Trust Agreement"), among the Depositor, Chase Manhattan
Bank USA, National Association, a national banking association, not in its
individual capacity but solely as eligible lender trustee on behalf of the Trust
(the "Eligible Lender Trustee") and The Bank of New York, a New York banking
corporation, not in its individual capacity but solely as the initial Excess
Distribution Certificate Paying Agent, a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
Appendix A to the Trust Agreement.
Issued under the Indenture dated as of October 1, 2003, among the
Trust, the Indenture Trustee and the Eligible Lender Trustee, are Notes
designated as "Student Loan-Backed Notes" (the "Notes"). This Excess
Distribution Certificate is issued under and is subject to the terms, provisions
and conditions of the Trust Agreement, to which Trust Agreement the holder of
this Excess Distribution Certificate by virtue of the acceptance hereof assents
and by which such holder is bound. The property of the Trust includes a pool of
student loans (the "Trust Student Loans"), all moneys paid thereunder on or
after October 6, 2003, certain bank accounts and the proceeds thereof and
certain other rights under the Trust Agreement, the Sale Agreement, the Purchase
Agreement, the Administration Agreement, the Servicing Agreement, the
Remarketing Agreement, the Interest Rate Cap Agreement, the Initial Swap
Agreements, and all proceeds of the foregoing.
To the extent of funds available therefor, amounts owing hereon will be
distributed on the 15th day of each March, June, September and December (or, if
such 15th day is not a Business Day, the next succeeding Business Day) (each a
"Distribution Date"), commencing on March 15, 2004, to the person in whose name
this Excess Distribution Certificate is registered as of the close of business
on the day immediately preceding the Distribution Date (such day the "Record
Date"), in each case to the extent of such holder's fractional and undivided
interest in the amount to be distributed hereon on such Distribution Date
pursuant to Sections 2.8(p), 2.9(f) and 2.10(a)(ii) of the Administration
Agreement.
A-3
The holder of this Excess Distribution Certificate acknowledges and
agrees that its rights to receive distributions in respect of this Excess
Distribution Certificate are subordinated to the rights of the Noteholders and
any Swap Counterparties as described in the Basic Documents.
It is the intent of the Depositor, and the holder of this Excess
Distribution Certificate that, for purposes of Federal, state and local income
and franchise and any other income taxes, the Notes will be treated as
newly-issued debt of, and this Excess Distribution Certificate will be treated
as equity in, the Trust. The holder of this Excess Distribution Certificate
agrees to treat, and to take no action inconsistent with the treatment of, this
Excess Distribution Certificate for such tax purposes as equity in the Trust.
The holder of this Excess Distribution Certificate, by its acceptance
of this Excess Distribution Certificate, covenants and agrees that it will not
at any time institute against the Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency, receivership or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to this
Excess Distribution Certificate, the Notes, the Trust Agreement or any of the
other Basic Documents.
Distributions on this Excess Distribution Certificate will be made as
provided in the Administration Agreement to the holder of record hereof without
the presentation or surrender of this Excess Distribution Certificate or the
making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this Excess
Distribution Certificate will be made after due notice by the Administrator of
the pendency of such distribution and only upon presentation and surrender of
this Excess Distribution Certificate at the office or agency maintained for the
purpose by the Excess Distribution Certificate Registrar in the Borough of
Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Excess
Distribution Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Eligible Lender Trustee or its
authenticating agent, by manual signature, this Excess Distribution Certificate
shall not entitle the holder hereof to any benefit under the Trust Agreement or
the Administration Agreement or be valid for any purpose.
A-4
IN WITNESS WHEREOF, the Eligible Lender Trustee on behalf of
the Trust and not in its individual capacity has caused this Excess Distribution
Certificate to be duly executed as of the date set forth below.
SLM STUDENT LOAN TRUST 2003-11
by CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its individual
capacity but solely as Eligible Lender Trustee
By:______________________________
Authorized Signatory
Date: October 30, 2003
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Excess Distribution Certificate referred to in the within-mentioned
Trust Agreement.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual capacity but
solely as Eligible Lender Trustee
By:____________________________
Authorized Signatory
OR
JPMORGAN CHASE BANK, solely in its capacity as
Authenticating Agent for the Eligible Lender Trustee
By:__________________________
Authenticating Agent
Date: October 30, 2003
A-6
[REVERSE OF EXCESS DISTRIBUTION CERTIFICATE]
This Excess Distribution Certificate does not represent an obligation
of, or an interest in, the Depositor, Xxxxxx Xxx Servicing L.P., as servicer
(the "Servicer"), Student Loan Marketing Association, as administrator (the
"Administrator"), the Eligible Lender Trustee or any affiliates of any of them,
and no recourse may be had against such parties or their assets, except as may
be expressly set forth or contemplated herein, in the Trust Agreement or in the
other Basic Documents. In addition, this Excess Distribution Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections with respect to the Trust Student Loans, all
as more specifically set forth in the Administration Agreement. A copy of each
of the Trust Agreement, the Sale Agreement, the Purchase Agreement, the
Administration Agreement, the Servicing Agreement, any Swap Agreement, the
Interest Rate Cap Agreement, the Remarketing Agreement and the Indenture may be
examined during normal business hours at the principal office of the
Administrator, and at such other places, if any, designated by the
Administrator, by the holder of this Excess Distribution Certificate upon
request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the certification of the rights and obligations of the
Depositor and the rights of the holders of this Excess Distribution Certificate
under the Trust Agreement at any time by the Depositor and the Eligible Lender
Trustee with the consent of the holders of the Class A Notes and the Class B
Notes, each voting as a class evidencing not less than a majority of the
outstanding principal balance of each class of the Notes. The Trust Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Noteholders.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Excess Distribution Certificate is
registerable in the Excess Distribution Certificate Register upon surrender of
this Excess Distribution Certificate for registration of transfer at the offices
or agencies maintained by the Excess Distribution Certificate Registrar, or by
any successor Excess Distribution Certificate Registrar, in the Borough of
Manhattan, The City of New York, accompanied by a written instrument of transfer
in form satisfactory to the Eligible Lender Trustee and the Excess Distribution
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon a new Excess Distribution
Certificate will be issued to the designated transferee.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, this Excess Distribution Certificate is exchangeable for a
new Excess Distribution Certificate as requested by the holder surrendering the
same. No service charge will be made for any such registration of transfer or
exchange, but the Eligible Lender Trustee or the Excess Distribution Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith.
The Eligible Lender Trustee, the Certificate Registrar and any agent of
the Eligible Lender Trustee or the Excess Distribution Certificate Registrar may
treat the person in whose name this Excess Distribution Certificate is
registered as the owner hereof for all purposes, and
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none of the Eligible Lender Trustee or the Excess Distribution Certificate
Registrar or any such agent shall be affected by any notice to the contrary.
This Excess Distribution Certificate (including any beneficial interest
herein) may not be acquired by or for the account of (i) an employee benefit
plan (as defined in Section 3(3) of ERISA) that is subject to the provisions of
Title I of ERISA, (ii) a plan described in section 4975(e)(1) of the Internal
Revenue Code of 1986, as amended (the "Code"), including an individual
retirement account described in Section 408(a) of the Code or a Xxxxx plan or
(iii) any entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (each, a "Benefit Plan"). By accepting and
holding this Excess Distribution Certificate, the holder hereof shall be deemed
to have represented and warranted that it is not a Benefit Plan, it is not
purchasing this Excess Distribution Certificate on behalf of a Benefit Plan, is
not using assets of a Benefit Plan to purchase this Excess Distribution
Certificate and to have agreed that if this Excess Distribution Certificate is
deemed to be a plan asset, the holder will promptly dispose of this Excess
Distribution Certificate.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Noteholders, the
Swap Counterparties and the holder of this Excess Distribution Certificate of
all amounts required to be paid to them pursuant to the Trust Agreement, the
Administration Agreement and the Indenture and the disposition of all property
held as part of the Trust. The Servicer may at its option purchase the corpus of
the Trust at a price specified in the Administration Agreement; however, such
right of purchase is exercisable only on any Distribution Date on or after the
later of the September 2008 Distribution Date or the date on which the Pool
Balance is less than or equal to 10% of the Initial Pool Balance. Any Trust
Student Loans remaining in the Trust as of the later of the end of the
Collection Period for the September 2008 Distribution Date or the end of the
Collection Period immediately preceding the Trust Auction Date will be offered
for sale by the Indenture Trustee by auction in accordance with the procedure
described in the Indenture.
This Excess Distribution Certificate shall be construed in accordance
with the laws of the State of Delaware, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
A-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________________
the within Excess Distribution Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
______________________________________________________________________Attorney
to transfer said Excess Distribution Certificate on the books of the Excess
Distribution Certificate Registrar, with full power of substitution in the
premises.
Dated:
______________________________*
Signature Guaranteed:
______________________________*
* NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within the Excess Distribution Certificate in
every particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock Exchange or
a commercial bank or trust company.
A-9
EXHIBIT B
FORM OF
CERTIFICATE OF TRUST
OF
SLM STUDENT LOAN
TRUST 2003-11
This Certificate of Trust of SLM STUDENT LOAN TRUST 2003-11 (the
"Trust") is being duly executed and filed on behalf of the Trust by the
undersigned, as trustee, to form a statutory trust under the Delaware Statutory
Trust Statute (12 Del. C. Section 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed by this
Certificate of Trust is SLM STUDENT LOAN TRUST 2003-11.
2. Delaware Trustee. The name and business address of the
eligible lender trustee of the Trust in the State of Delaware are the Chase
Manhattan Bank USA, National Association, c/o JPMorgan Chase Bank, 500 Xxxxxxx
Xxxxxxxxxx Road, Xxxxxxxxxx Xxxxxx/XXX0/0xx Xxxxx, Xxxxxx, Xxxxxxxx 00000. Attn:
Institutional Trust Services.
3. Effective Date. This Certificate of Trust shall be effective
upon filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Eligible Lender Trustee
By: _______________________________
Name:
Title:
B-1
EXHIBIT C
[FORM OF TRANSFEROR LETTER]
[Date]
Student Loan Marketing Association
as Administrator
00000 Xxxxxx Xxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
The Bank of New York
as Excess Distribution Certificate Registrar
000 Xxxxxxx Xxxxxx, 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust - Structured Finance
Chase Manhattan Bank USA, National Association
as Eligible Lender Trustee
Christiana Center/OPS4
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Re: SLM Student Loan Trust 2003-11,
Excess Distribution Certificate (the "Certificate")
Ladies and Gentlemen:
In connection with our disposition of the above Certificate, we certify
that (a) we understand that the Certificate has not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and is being disposed
by us in a transaction that is exempt from the registration requirements of the
Securities Act, and (b) we have not offered or sold the Certificate to, or
solicited offers to buy the Certificate from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner that
would be deemed, or taken any other action would result in, a violation of
Section 5 of the Securities Act.
Very truly yours,
__________________________________________
[Print Name of Transferor]
By: ______________________________________
Authorized Officer
C-1
EXHIBIT D-1
[FORM OF TRANSFEREE LETTER (NON-RULE 144A)]
[Date]
Student Loan Marketing Association
as Administrator
00000 Xxxxxx Xxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
The Bank of New York
as Excess Distribution Certificate Registrar
000 Xxxxxxx Xxxxxx, 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust - Structured Finance
Chase Manhattan Bank USA, National Association
as Eligible Lender Trustee
Christiana Center/OPS4
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Re: SLM Student Loan Trust 2003-11,
Excess Distribution Certificate (the "Certificate")
Ladies and Gentlemen:
In connection with our acquisition of the above Certificate, we certify
that (a) we understand that the Certificate is not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any state
securities laws and is being transferred to us in a transaction that is exempt
from the registration requirements of the Securities Act and any such laws, (b)
we are an institutional "accredited investor," as defined in Rule 501 (a) (1),
(2), (3) or (7) of Regulation D under the Securities Act or an entity in which
all of the equity owners come within such paragraphs, and have such knowledge
and experience in financial and business matters that we are capable of
evaluating the merits and risks of investments in the Certificate, (c) we have
had the opportunity to ask questions of and receive answers from the Depositor
concerning the purchase of the Certificate and all matters relating thereto or
any additional information deemed necessary to our decision to purchase the
Certificate, (d) we are not acquiring the Certificate for, on behalf of or with
the assets of, an employee benefit plan or other retirement arrangement (a
"Plan") which is subject to Title I of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and/or Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), (e) we are acquiring the Certificate for
investment for our own account and not with a view to any distribution of the
Certificate (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificate in accordance with clause (g) below), (f)
we have not offered or sold the Certificate to, or solicited offers to buy the
Certificate
D-1-1
from, any person, or otherwise approached or negotiated with any person with
respect thereto, or taken any other action which would result in a violation of
Section 5 of the Securities Act, and (g) we will not sell, transfer or otherwise
dispose of the Certificate unless (1) such sale, transfer or other disposition
is made pursuant to an effective registration statement under the Securities Act
or is exempt from such registration requirements, and if requested, we will at
our expense provide an opinion of counsel satisfactory to the addressees of this
Letter that such sale, transfer or other disposition may be made pursuant to an
exemption from the Securities Act, (2) the purchaser or transferee of such
Certificate has executed and delivered to you a certificate to substantially the
same effect as this certificate and (3) the purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Trust
Agreement relating to the Certificate.
Very truly yours,
__________________________________
[Print Name of Transferee]
By:_______________________________
Authorized Officer
D-1-2
EXHIBIT D-2
[FORM OF TRANSFEREE LETTER (RULE 144A)]
[Date]
Student Loan Marketing Association
as Administrator
00000 Xxxxxx Xxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
The Bank of New York
as Excess Distribution Certificate Registrar
000 Xxxxxxx Xxxxxx, 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust - Structured Finance
Chase Manhattan Bank USA, National Association
as Eligible Lender Trustee
Christiana Center/OPS4
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Re: SLM Student Loan Trust 2003-11,
Excess Distribution Certificate (the "Certificate")
Ladies and Gentlemen:
In connection with our acquisition of the above Certificate, we certify
that (a) we understand that the Certificate is not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any state
securities laws and is being transferred to us in a transaction that is exempt
from the registration requirements of the Securities Act and any such laws, (b)
we have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificate, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificate and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificate, (d) we are not acquiring the Certificate
for, on behalf of or with the assets of, an employee benefit plan or other
retirement arrangement (a "Plan") which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and/or Section
4975 of the Internal Revenue Code of 1986, as amended (the "Code"), (e) we have
not, nor has anyone acting on our behalf offered, transferred, pledged, sold or
otherwise disposed of the Certificate, any interest in the Certificate or any
other similar security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Certificate, any interest in the Certificate
or any other similar security from, or otherwise approached or negotiated with
respect to the Certificate, any interest in the Certificate or any other similar
security with, any person in any manner, or made any general solicitation by
means
D-2-1
of general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificate under the Securities Act or
that would render the disposition of the Certificate a violation of Section 5 of
the Securities Act or require registration pursuant thereto, nor will act, nor
has authorized or will authorize any person to act, in such manner with respect
to the Certificate, (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act ("Rule 144A") and have completed
either of the forms of certification to that effect attached hereto as Annex 1
or Annex 2. We are aware that the sale to us is being made in reliance on Rule
144A. We are acquiring the Certificate for our own account or for resale
pursuant to Rule 144A and further understand that the Certificate may be resold,
pledged or transferred only (1) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
Very truly yours,
__________________________________
[Print Name of Transferee]
By:_______________________________
Authorized Officer
D-2-2
ANNEX 1
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Letter to which this certification
relates with respect to the Certificate described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive
officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because (i) the Buyer owned and/or invested on a
discretionary basis $____________(1) in securities (except for
the excluded securities referred to below) as of the end of
the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A and (ii) the Buyer
satisfies the criteria in the category marked below.
- Corporation, etc. The Buyer is a corporation (other
than a bank, savings and loan association or similar
institution), Massachusetts or similar business
trust, partnership, or charitable organization
described in Section 501 (c) (3) of the Internal
Revenue Code of 1986, as amended.
- Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State,
territory or the District of Columbia, the business
of which is substantially confined to banking and is
supervised by the State or territorial banking
commission or similar official or is a foreign bank
or equivalent institution, and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which
is attached hereto.
- Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a
State or Federal authority having supervision over
any such institutions or is a foreign savings and
loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
---------------------------
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
Annex 1-1
- Broker-dealer. The Buyer is a dealer registered
pursuant to Section 15 of the Securities Exchange Act
of 1934.
- Insurance Company. The Buyer is an insurance company
whose primary and predominant business activity is
the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is
subject to supervision by the insurance commissioner
or a similar official or agency of a State, territory
or the District of Columbia.
- State or Local Plan. The Buyer is a plan established
and maintained by a State, its political
subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit
of its employees.
- ERISA Plan. The Buyer is an employee benefit plan
within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
- Investment Advisor. The Buyer is an investment
advisor registered under the Investment Advisors Act
of 1940.
- Small Business Investment Company. The Buyer is a
small business investment company licensed by the
U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of
1958.
- Business Development Company. The Buyer is a
business development company as defined in Section
202(a)(22) of the Investment Advisors Act of 1940.
- Qualified Institutional Buyers. The Buyer owned
and/or invested on a discretionary basis less than
$100,000,000, but it is an entity in which all of the
equity owners are qualified institutional buyers.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii)
securities that are part of an unsold allotment to or
subscription by the Buyer, if the Buyer is a dealer, (iii)
securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and
certificates of deposit, (v) loan participations, (vi)
repurchase agreements, (vii) securities owned but subject to a
repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer,
the Buyer used the cost of such securities to the Buyer and
did not include any of the securities referred to in the
preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis
of their market value, and (ii) no current information with
respect to the cost of those securities has been published. If
clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned
by subsidiaries of the Buyer, but only if such
Annex 1-2
subsidiaries are consolidated with the Buyer in its financial
statements prepared in accordance with generally accepted
accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However,
such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise
and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to
the Certificate are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer
may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this
certification is made of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificate will constitute a reaffirmation of
this certification as of the date of such purchase. In
addition, if the Buyer is a bank or savings and loan is
provided above, the Buyer agrees that it will furnish to such
parties updated annual financial statements promptly after
they become available.
____________________________________
[Print Name of Transferee]
By:_________________________________
Name:
Title:
Date:______________________
Annex 1-3
ANNEX 2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Letter to which this certification
relates with respect to the Certificate described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if
the Buyer is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of
the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A
because (i) the Buyer is an investment company registered
under the Investment Company Act of 1940, as amended and (ii)
as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in
securities (other than the excluded securities referred to
below) as of the end of the Buyer's most recent fiscal year.
For purposes of determining the amount of securities owned by
the Buyer or the Buyer's Family of Investment Companies, the
cost of such securities was used, except (i) where the Buyer
or the Buyer's Family of Investment Companies reports its
securities holdings in its financial statements on the basis
of their market value, and (ii) no current information with
respect to the cost of those securities has been published. If
clause (ii) in the preceding sentence applies, the securities
may be valued at market.
- The Buyer owned $______________ in securities (other
than the excluded securities referred to below) as of
the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule
144A).
- The Buyer is part of a Family of Investment Companies
which owned in the aggregate $_____________ in
securities (other than the excluded securities
referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series
thereof) that have the same investment adviser or investment
advisers that are affiliated (by virtue of being majority
owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the
other).
Annex 2
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or
are part of the Buyer's Family of Investment Companies, (ii)
securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a
repurchase agreement and (vii) currency, interest rate and
commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Letter to which
this certification relates are relying and will continue to
rely on the statements made herein because one or more sales
to the Buyer will be in reliance on Rule 144A. In addition,
the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificate, the undersigned
will notify the parties listed in the Rule 144A Transferee
Letter to which this certification relates of any changes in
the information and conclusions herein. Until such notice is
given, the Buyer's purchase of the Certificate will constitute
a reaffirmation of this certification by the undersigned as of
the date of such purchase.
__________________________________
Print Name of Buyer or Adviser
By:_______________________________
Name:
Title:
[IF AN ADVISER:]
__________________________________
Print Name of Buyer
Date:______________________
Annex 2
