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INDENTURE
among
SLM STUDENT LOAN TRUST 2003-11
as the Issuer,
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as the Eligible Lender Trustee
and
THE BANK OF NEW YORK,
not in its individual capacity but
solely as the Indenture Trustee
Dated as of October 1, 2003
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions and Usage
SECTION 1.1 Definitions and Usage.................................................................... 2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act........................................ 2
ARTICLE II
The Notes
SECTION 2.1 Form..................................................................................... 3
SECTION 2.2 Execution, Authentication and Delivery................................................... 3
SECTION 2.3 Temporary Notes.......................................................................... 4
SECTION 2.4 Registration; Registration of Transfer and Exchange...................................... 4
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes............................................... 5
SECTION 2.6 Persons Deemed Owner..................................................................... 6
SECTION 2.7 Payment of Principal and Interest; Note Interest Shortfall............................... 6
SECTION 2.8 Cancellation............................................................................. 7
SECTION 2.9 Release of Collateral.................................................................... 7
SECTION 2.10 Book-Entry Notes......................................................................... 7
SECTION 2.11 Notices to Clearing Agency............................................................... 8
SECTION 2.12 Definitive Notes......................................................................... 9
SECTION 2.13 Transfer Restrictions.................................................................... 9
ARTICLE III
Covenants
SECTION 3.1 Payment to Noteholders and each Swap Counterparty........................................ 9
SECTION 3.2 Maintenance of Office or Agency......................................................... 10
SECTION 3.3 Money for Payments to be Held in Trust.................................................. 10
SECTION 3.4 Existence............................................................................... 12
SECTION 3.5 Protection of Indenture Trust Estate.................................................... 12
SECTION 3.6 Opinions as to Indenture Trust Estate................................................... 12
SECTION 3.7 Performance of Obligations; Servicing of Trust Student Loans............................ 13
SECTION 3.8 Negative Covenants...................................................................... 15
SECTION 3.9 Annual Statement as to Compliance....................................................... 16
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms..................................... 16
SECTION 3.11 Successor or Transferee................................................................. 18
SECTION 3.12 No Other Business....................................................................... 18
SECTION 3.13 No Borrowing............................................................................ 18
SECTION 3.14 Obligations of Servicer and Administrator............................................... 18
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities....................................... 18
SECTION 3.16 Capital Expenditures.................................................................... 18
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SECTION 3.17 Restricted Payments..................................................................... 18
SECTION 3.18 Notice of Events of Default............................................................. 19
SECTION 3.19 Further Instruments and Acts............................................................ 19
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1 Satisfaction and Discharge of Indenture................................................. 19
SECTION 4.2 Application of Trust Money.............................................................. 20
SECTION 4.3 Repayment of Moneys Held by Paying Agent................................................ 20
SECTION 4.4 Auction of Trust Student Loans.......................................................... 20
ARTICLE V
Remedies
SECTION 5.1 Events of Default....................................................................... 21
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment...................................... 22
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee............... 23
SECTION 5.4 Remedies; Priorities.................................................................... 25
SECTION 5.5 Optional Preservation of the Trust Student Loans........................................ 27
SECTION 5.6 Limitation of Suits..................................................................... 28
SECTION 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest................... 28
SECTION 5.8 Restoration of Rights and Remedies...................................................... 29
SECTION 5.9 Rights and Remedies Cumulative.......................................................... 29
SECTION 5.10 Delay or Omission Not a Waiver.......................................................... 29
SECTION 5.11 Control by Noteholders.................................................................. 29
SECTION 5.12 Waiver of Past Defaults................................................................. 30
SECTION 5.13 Undertaking for Costs................................................................... 30
SECTION 5.14 Waiver of Stay or Extension Laws........................................................ 30
SECTION 5.15 Action on Notes......................................................................... 30
SECTION 5.16 Performance and Enforcement of Certain Obligations...................................... 31
ARTICLE VI
The Indenture Trustee
SECTION 6.1 Duties of Indenture Trustee............................................................. 31
SECTION 6.2 Rights of Indenture Trustee............................................................. 32
SECTION 6.3 Individual Rights of Indenture Trustee.................................................. 33
SECTION 6.4 Indenture Trustee's Disclaimer.......................................................... 33
SECTION 6.5 Notice of Defaults...................................................................... 33
SECTION 6.6 Reports by Indenture Trustee to Noteholders............................................. 34
SECTION 6.7 Compensation and Indemnity.............................................................. 34
SECTION 6.8 Replacement of Indenture Trustee........................................................ 34
SECTION 6.9 Successor Indenture Trustee by Merger................................................... 35
SECTION 6.10 Appointment of Co-Trustee or Separate Trustee........................................... 36
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SECTION 6.11 Eligibility; Disqualification........................................................... 37
SECTION 6.12 Preferential Collection of Claims Against the Issuer.................................... 37
ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.1 Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders.................. 37
SECTION 7.2 Preservation of Information; Communications to Noteholders.............................. 38
SECTION 7.3 Reports by Issuer....................................................................... 38
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1 Collection of Money..................................................................... 39
SECTION 8.2 Trust Accounts.......................................................................... 39
SECTION 8.3 General Provisions Regarding Accounts................................................... 39
SECTION 8.4 Release of Indenture Trust Estate....................................................... 40
SECTION 8.5 Opinion of Counsel...................................................................... 41
ARTICLE IX
Supplemental Indentures
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders.................................. 41
SECTION 9.2 Supplemental Indentures with Consent of Noteholders..................................... 42
SECTION 9.3 Execution of Supplemental Indentures.................................................... 43
SECTION 9.4 Effect of Supplemental Indenture........................................................ 44
SECTION 9.5 Conformity with Trust Indenture Act..................................................... 44
SECTION 9.6 Reference in Notes to Supplemental Indentures........................................... 44
ARTICLE X
Redemption of Notes
SECTION 10.1 Redemption.............................................................................. 44
SECTION 10.2 Form of Redemption Notice............................................................... 44
SECTION 10.3 Notes Payable on Redemption Date........................................................ 45
ARTICLE XI
Miscellaneous
SECTION 11.1 Compliance Certificates and Opinions, etc............................................... 45
SECTION 11.2 Form of Documents Delivered to Indenture Trustee........................................ 47
SECTION 11.3 Acts of Noteholders..................................................................... 48
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies......................... 48
SECTION 11.5 Notices to Noteholders; Waiver.......................................................... 49
SECTION 11.6 Alternate Payment and Notice Provisions................................................. 49
SECTION 11.7 Conflict with Trust Indenture Act....................................................... 50
SECTION 11.8 Effect of Headings and Table of Contents................................................ 50
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SECTION 11.9 Successors and Assigns.................................................................. 50
SECTION 11.10 Separability............................................................................ 50
SECTION 11.11 Benefits of Indenture................................................................... 50
SECTION 11.12 Legal Holidays.......................................................................... 50
SECTION 11.13 Governing Law........................................................................... 51
SECTION 11.14 Counterparts............................................................................ 51
SECTION 11.15 Recording of Indenture.................................................................. 51
SECTION 11.16 Trust Obligations....................................................................... 51
SECTION 11.17 No Petition............................................................................. 51
SECTION 11.18 Inspection.............................................................................. 52
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APPENDICES, SCHEDULES AND EXHIBITS
APPENDIX A-1 Definitions and Usage
APPENDIX A-2 Reset Rate Note Procedures
APPENDIX A-3 Transfer Restrictions for the Reset Rate Notes
SCHEDULE A Schedule of Trust Student Loans
SCHEDULE B Location of Trust Student Loan Files
EXHIBIT A Forms of Notes
EXHIBIT B Form of Note Depository Agreement
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INDENTURE dated as of October 1, 2003, among SLM STUDENT LOAN
TRUST 2003-11, a Delaware statutory trust (the "Issuer"), 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 Issuer (the
"Eligible Lender Trustee"), and THE BANK OF NEW YORK, a New York banking
corporation, as indenture trustee and not in its individual capacity (the
"Indenture Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the holders of the Issuer's
Student Loan-Backed Notes (the "Notes"):
GRANTING CLAUSE
The Issuer and, with respect to the Trust Student Loans, the
Eligible Lender Trustee hereby Grant to the Indenture Trustee, as trustee for
the benefit of the Noteholders, effective as of the Closing Date all of their
right, title and interest in and to the following:
(a) the Trust Student Loans, and all obligations of the Obligors
thereunder including all moneys accrued and paid thereunder on or after the
Cutoff Date and all guaranties and other rights relating to the Trust Student
Loans;
(b) the Servicing Agreement, including the right of the Issuer to
cause the Servicer to purchase Trust Student Loans from the Issuer under
circumstances described therein;
(c) the Sale Agreement, including the right of the Issuer to cause
the Depositor to repurchase Trust Student Loans from the Issuer under
circumstances described therein and including the rights of the Depositor under
the Purchase Agreement;
(d) the Purchase Agreement, to the extent that the rights of the
Depositor thereunder have been assigned to the Issuer pursuant to the Sale
Agreement, including the right of the Depositor to cause Xxxxxx Xxx to
repurchase Trust Student Loans from the Depositor under circumstances described
therein;
(e) the Administration Agreement, the Interest Rate Cap Agreement,
the Remarketing Agreement, the Initial Swap Agreements and any other Swap
Agreement to be entered into from time to time;
(f) each Guarantee Agreement, including the right of the Issuer to
cause the related Guarantor to make Guarantee Payments in respect of the Trust
Student Loans;
(g) the Trust Accounts and all funds on deposit from time to time
in the Trust Accounts, including the Reserve Account Initial Deposit and the
Capitalized Interest Account Initial Deposit, if any, and all investments and
proceeds thereof (including all income thereon); and
(h) all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing and all payments on or under
and all proceeds of every kind and nature whatsoever in respect of any or all of
the foregoing, including all proceeds of the
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conversion, voluntary or involuntary, into cash or other liquid property, all
cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, general intangibles, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property which at
any time constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, equally and ratably without prejudice, priority or distinction and to
secure compliance with the provisions of this Indenture, all as provided in this
Indenture.
The Indenture Trustee, as indenture trustee on behalf of the
Noteholders, acknowledges such Grant, accepts the trusts under this Indenture in
accordance with the provisions of this Indenture and agrees to perform its
duties required in this Indenture to the best of its ability to the end that the
interests of the Noteholders may be adequately and effectively protected.
ARTICLE I
Definitions and Usage
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-1 to this Indenture,
which also contains rules as to usage that shall be applicable herein.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
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ARTICLE II
The Notes
SECTION 2.1 Form. The Notes, together with the Indenture
Trustee's certificate of authentication, shall be in substantially the forms set
forth in Exhibit A, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing the Notes, as evidenced by their execution of the Notes. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders), all as determined by the officers executing
such Notes, as evidenced by their execution of such Notes.
The terms of the Notes set forth in Exhibit A are part of the
terms of this Indenture.
SECTION 2.2 Execution, Authentication and Delivery. The Notes
shall be executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals
who were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Indenture Trustee shall upon Issuer Order authenticate and
deliver Notes for original issue in an aggregate principal amount of
$2,025,404,000. The aggregate principal amount of Notes Outstanding at any time
may not exceed such amount except as provided in Section 2.5.
Each Note shall be dated the date of its authentication. The
Floating Rate Class A Notes shall be issuable as registered notes in minimum
denominations of $1,000 and additional increments of $1,000. The Reset Rate
Notes shall be issuable as registered notes in minimum denominations of $250,000
and additional increments of $1. The Class B Notes shall be issuable as
registered Class B Notes in minimum denominations of $100,000 and additional
increments of $1,000.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
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SECTION 2.3 Temporary Notes. Pending the preparation of
Definitive Notes, the Issuer may execute, and upon receipt of an Issuer Order
the Indenture Trustee shall authenticate and deliver, temporary Notes which are
printed, lithographed, typewritten, mimeographed or otherwise produced, of the
tenor of the Definitive Notes in lieu of which they are issued and with such
variations not inconsistent with the terms of this Indenture determined to be
appropriate by the Responsible Officer of the Issuer executing the temporary
Notes, as evidenced by his or her execution of such temporary Notes.
If temporary Notes are issued, the Issuer will cause
Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the temporary Notes shall be exchangeable for
Definitive Notes upon surrender of the temporary Notes at the office or agency
of the Issuer to be maintained as provided in Section 3.2, without charge to the
Noteholder. Upon surrender for cancellation of any one or more temporary Notes,
the Issuer shall execute and the Indenture Trustee shall authenticate and
deliver in exchange therefor a like principal amount of Definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Notes.
SECTION 2.4 Registration; Registration of Transfer and
Exchange. The Issuer shall cause to be kept a register (the "Note Register") in
which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Notes and the registration of transfers of
Notes. The Indenture Trustee shall be "Note Registrar" for the purpose of
registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint a successor
or, if it elects not to make such an appointment, assume the duties of Note
Registrar.
If a Person other than the Indenture Trustee is appointed by
the Issuer as Note Registrar, the Issuer shall give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location,
and any change in the location, of the Note Register, and the Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Indenture Trustee shall have the right to rely
upon a certificate executed on behalf of the Note Registrar by an Executive
Officer thereof as to the names and addresses of the Noteholders and the
principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the
office or agency of the Issuer to be maintained as provided in Section 3.2 or,
with respect to the Reset Rate Notes, to the Note Registrar or any transfer
agent, as applicable, if the requirements of Section 8-401(1) of the UCC are
met, the Issuer shall execute, and the Indenture Trustee shall authenticate and
the Noteholder shall obtain from the Indenture Trustee, in the name of the
designated transferee or transferees, one or more new Notes in any authorized
denominations and a like aggregate principal amount.
At the option of the Noteholder, Notes may be exchanged for
other Notes in any authorized denominations and a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, the Issuer shall execute,
and the Indenture Trustee shall authenticate and the Noteholder shall
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obtain from the Indenture Trustee, the Notes which the Noteholder making the
exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by the Noteholder thereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which requirements
include membership or participation in Securities Transfer Agent's Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Exchange Act.
No service charge shall be made to a Noteholder for any
registration of transfer or exchange of Notes, but the Indenture Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 2.3 or 9.6 not
involving any transfer.
The preceding provisions of this Section notwithstanding, the
Issuer shall not be required to make and the Note Registrar need not register
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to the
Note.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes. If (i)
any mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, and (ii) there is delivered to the Issuer and the Indenture Trustee
such security or indemnity as may be required by each of them to hold the Issuer
and the Indenture Trustee harmless, then, in the absence of notice to the
Issuer, the Note Registrar or the Indenture Trustee that such Note has been
acquired by a bona fide purchaser, and provided that the requirements of Section
8-405 of the UCC are met, the Issuer shall execute and upon its request the
Indenture Trustee shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Note, a replacement Note;
provided, however, that if any such destroyed, lost or stolen Note, but not a
mutilated Note, shall have become or within 15 days shall be due and payable, or
shall have been called for redemption, instead of issuing a replacement Note,
the Issuer may pay such destroyed, lost or stolen Note when so due or payable or
upon the Redemption Date without surrender thereof. If, after the delivery of
such replacement Note or payment of a destroyed, lost or stolen Note pursuant to
the proviso to the preceding sentence, a bona fide purchaser of the original
Note in lieu of which such replacement Note was issued presents for payment such
original Note, the Issuer and the Indenture Trustee shall be entitled to recover
such replacement Note (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Note from such Person to whom such
replacement Note was delivered or any assignee of such Person, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity
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provided therefor to the extent of any loss, damage, cost or expense incurred by
the Issuer or the Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section,
the Issuer may require the payment by the Noteholder thereof of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of, interest, if any, on
such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and neither the Issuer, the Indenture Trustee nor any agent of the
Issuer or the Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.7 Payment of Principal and Interest; Note Interest
Shortfall. (a) The Floating Rate Notes shall accrue interest as provided in such
Floating Rate Notes, which shall be substantially in the form of Exhibits X-0,
X-0, X-0, X-0 and A-5, and the Reset Rate Notes shall accrue interest as
provided in such Reset Rate Notes, which shall be substantially in the form of
Exhibits X-0, X-0 xxx X-0, and such interest shall be payable on each applicable
Distribution Date as specified therein, subject to Section 3.1. Any installment
of interest or principal, if any, payable on any Note which is punctually paid
or duly provided for by the Issuer on the applicable Distribution Date shall be
paid to the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the applicable Record Date by check mailed first-class, postage
prepaid to such Person's address as it appears on the Note Register on such
Record Date, except that, unless Definitive Notes have been issued pursuant to
Section 2.12, with respect to Notes registered on the Record Date in the name of
the nominee of the applicable Clearing Agency (initially, such nominee to be
Cede & Co.), payment shall be made by wire transfer in immediately available
funds to the account designated by such nominee and except for the final
installment of principal payable with respect to such Note on a Distribution
Date or on the Note Final Maturity Date for such Note which shall be payable as
provided below. The funds represented by any such checks returned undelivered
shall be held in accordance with Section 3.3.
(b) The principal of each class of Floating Rate Notes shall be
payable on each applicable Distribution Date as provided in the forms of Notes
set forth in Exhibits X-0, X-0, X-
0
0, X-0 and A-5 and the principal of each class of Reset Rate Notes shall be
payable on each applicable Distribution Date as set forth in Exhibits X-0, X-0
and A-8 and in Appendix A-2 to this Indenture. Notwithstanding the foregoing,
the entire unpaid principal amount of each class of the Notes shall be due and
payable, if not previously paid, on the Note Final Maturity Date for such class
of Notes and on the date on which an Event of Default shall have occurred and be
continuing if the Indenture Trustee or the Noteholders of the Notes representing
not less than a majority of the Outstanding Amount of the Notes have declared
the Notes to be immediately due and payable in the manner provided in Section
5.2. All principal payments on the Notes shall be made pro rata to the specific
class of Noteholders entitled thereto. The Indenture Trustee shall notify the
Person in whose name a Note is registered at the close of business on the Record
Date preceding the Distribution Date on which the Issuer expects that the final
installment of principal of and interest on such Note will be paid. Such notice
shall be mailed or transmitted by facsimile prior to such final Distribution
Date and shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such installment. Notices
in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2.
(c) If the Issuer defaults in a payment of interest at the
applicable Note Rate on the Notes, the Issuer shall pay the resulting Note
Interest Shortfall on the following Distribution Date as provided in the
Administration Agreement.
SECTION 2.8 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever and all Notes so delivered shall be promptly cancelled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Notes may be held or disposed of by the
Indenture Trustee in accordance with its standard retention or disposal policy
as in effect at the time, unless the Issuer shall direct by an Issuer Order that
they be returned to it and so long as such Issuer Order is timely and the Notes
have not been previously disposed of by the Indenture Trustee.
SECTION 2.9 Release of Collateral. Subject to Section 11.1 and
the terms of the Basic Documents, the Indenture Trustee shall release property
from the lien of this Indenture only upon receipt of an Issuer Request
accompanied by an Officers' Certificate of the Issuer, an Opinion of Counsel and
Independent Certificates in accordance with TIA sections 314(c) and 314(d)(1) or
an Opinion of Counsel in lieu of such Independent Certificates to the effect
that the TIA does not require any such Independent Certificates.
SECTION 2.10 Book-Entry Notes. The Notes, upon original
issuance, will be issued in the form of typewritten Notes representing the
Book-Entry Notes, to be delivered to the applicable initial Clearing Agency by
the Issuer, or by the Indenture Trustee on behalf of the Issuer. Such Notes
shall initially be registered on the Note Register in the name of the nominee of
each initial Clearing Agency, and no Note Owner shall receive a definitive,
fully registered note (a "Definitive Note") representing such Note Owner's
interest in such Note, except as
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provided in Section 2.12. Unless and until Definitive Notes have been issued to
Note Owners pursuant to Section 2.12:
(i) the provisions of this Section shall be in full force
and effect;
(ii) the Note Registrar and the Indenture Trustee, and
their respective directors, officers, employees and agents, may deal with the
applicable Clearing Agency for all purposes (including the payment of principal
of and interest and other amounts on the Notes) as the authorized representative
of the Note Owners;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Indenture, the provisions of this
Section shall control;
(iv) the rights of Note Owners shall be exercised only
through the applicable Clearing Agency and shall be limited to those established
by law and agreements between such Note Owners and the applicable Clearing
Agency and/or the applicable Clearing Agency Participants pursuant to the Note
Depository Agreements; and unless and until Definitive Notes are issued pursuant
to Section 2.12, the applicable initial Clearing Agency will make book-entry
transfers among the applicable Clearing Agency Participants and receive and
transmit payments of principal of and interest and other amounts on the Notes to
such applicable Clearing Agency Participants;
(v) whenever this Indenture requires or permits actions
to be taken based upon instructions or directions of Noteholders of Notes
evidencing a specified percentage of the Outstanding Amount of the Notes, the
applicable Clearing Agency shall be deemed to represent such percentage only to
the extent that it has received instructions to such effect from Note Owners
and/or applicable Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the Notes
and has delivered such instructions to the Indenture Trustee; and
(vi) upon acquisition or transfer of a beneficial interest
in any Book-Entry Note by, for or with the assets of, an employee benefit plan
or other retirement arrangement ("Plan"), such Note Owner shall be deemed to
have represented that such acquisition or purchase will not constitute or
otherwise result in: (i) in the case of a Plan subject to Section 406 of ERISA
or Section 4975 of the Code, a non-exempt prohibited transaction in violation of
Section 406 of ERISA or Section 4975 of the Code which is not covered by a class
or other applicable exemption and (ii) in the case of a Plan subject to a
substantially similar federal, state, local or foreign law ("Similar Law"), a
non-exempt violation of such substantially Similar Law. Any transfer found to
have been made in violation of such deemed representation shall be null and void
and of no effect.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or
other communication is required under this Indenture to be given to Noteholders,
unless and until Definitive Notes shall have been issued to Note Owners pursuant
to Section 2.12, the Indenture Trustee shall give all such notices and
communications specified herein to the applicable Clearing Agency.
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SECTION 2.12 Definitive Notes. If (i) the Administrator
advises the Indenture Trustee in writing that a Clearing Agency (a) is closed
for business for a continuous period of 14 days (other than by reason of
holiday, statutory or otherwise), (b) announces an intention to cease business
permanently (or does so and no alternative clearing system acceptable to the
Indenture Trustee is then available), or (c) at any time, is unwilling or unable
to continue as, or ceases to be, a clearing agency registered under all
applicable laws, and a successor clearing agency which is registered as a
clearing agency under all applicable laws is not appointed by the Administrator
within 90 days of such event, (ii) the Administrator at its option advises the
Indenture Trustee in writing that it elects to terminate the book-entry system
through that Clearing Agency or (iii) after the occurrence of an Event of
Default, a Servicer Default or an Administrator Default, Note Owners
representing beneficial interests aggregating at least a majority of the
Outstanding Amount of the applicable Notes advise the applicable Clearing Agency
(which shall then notify the Indenture Trustee) in writing that the continuation
of a book-entry system through such Clearing Agency is no longer in the best
interests of such Note Owners, then the Indenture Trustee shall cause such
Clearing Agency to notify all Note Owners cleared, through such Clearing Agency,
of the occurrence of any such event and of the availability of Definitive Notes
to Note Owners requesting the same. Upon surrender to the Indenture Trustee of
the typewritten Notes representing the Book-Entry Notes by a Clearing Agency,
accompanied by registration instructions, the Issuer shall execute and the
Indenture Trustee shall authenticate the Definitive Notes in accordance with the
instructions of such Clearing Agency, which shall include, without limitation,
the identity and payment instructions for all Noteholders of the applicable
Notes. None of the Issuer, the Note Registrar or the Indenture Trustee shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. Upon the issuance
of Definitive Notes, the Indenture Trustee shall recognize the holders of the
Definitive Notes as Noteholders.
Upon acquisition or transfer of a Definitive Note by, for or
with the assets of, a Plan, such Note Owner shall be deemed to have represented
that such acquisition or purchase will not constitute or otherwise result in:
(i) in the case of a Plan subject to Section 406 of ERISA or Section 4975 of the
Code, a non-exempt prohibited transaction in violation of Section 406 of ERISA
or Section 4975 of the Code which is not covered by a class or other applicable
exemption and (ii) in the case of a Plan subject to a substantially Similar Law,
a non-exempt violation of such substantially Similar Law. Any transfer found to
have been made in violation of such deemed representation shall be null and void
and of no effect.
SECTION 2.13 Transfer Restrictions. Each Noteholder and Note
Owner of a class of Reset Rate Notes shall be subject to the restrictions on
transfer thereof set forth in Appendix A-2 to this Indenture.
ARTICLE III
Covenants
SECTION 3.1 Payment to Noteholders and each Swap Counterparty.
The Issuer shall duly and punctually pay the principal and interest, if any,
with respect to the Notes in accordance with the terms of the Notes and this
Indenture and shall duly and punctually pay
9
amounts, if any, owing to each Swap Counterparty in accordance with the terms of
this Indenture and the related Swap Agreement. Without limiting the foregoing,
the Issuer shall cause to be distributed to Noteholders and each Swap
Counterparty in accordance with the Administration Agreement that portion of the
amounts on deposit in the Trust Accounts on a Distribution Date or with respect
to any Swap Counterparty amounts on deposit in the relevant Trust Accounts on
the date such payment is due under the related Swap Agreement, which the
Noteholders and any Swap Counterparty are entitled to receive pursuant to
Sections 2.7 and 2.8 of the Administration Agreement. Amounts properly withheld
under the Code by any Person from a payment to any Noteholder of interest and/or
principal shall be considered as having been paid by the Issuer to such
Noteholder for all purposes of this Indenture.
SECTION 3.2 Maintenance of Office or Agency. The Issuer shall
maintain in the Borough of Manhattan, The City of New York and in Luxembourg, an
office or agency where Notes may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Issuer in respect of the
Notes and this Indenture may be served. The Issuer hereby initially appoints the
Indenture Trustee to serve as its agent for the foregoing purposes. The Issuer
shall give prompt written notice to the Indenture Trustee of the location, and
of any change in the location, of any such office or agency. If at any time the
Issuer shall fail to maintain any such office or agency or shall fail to furnish
the Indenture Trustee with the address thereof, such surrenders, notices and
demands may be made or served at the Corporate Trust Office, and the Issuer
hereby appoints the Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
SECTION 3.3 Money for Payments to be Held in Trust. As
provided in Section 8.2(a) and (b), all payments of amounts due and payable with
respect to any Notes or any Swap Agreement that are to be made from amounts
distributed from the Collection Account or any other Trust Account pursuant to
Sections 2.7 and 2.8 of the Administration Agreement shall be made on behalf of
the Issuer by the Indenture Trustee or by another Paying Agent, and no amounts
so distributed from the Collection Account for payments of Notes or any Swap
Agreement shall be paid over to the Issuer except as provided in this Section.
On or before the Business Day next preceding each Distribution
Date and Redemption Date, the Issuer shall distribute or cause to be distributed
to the Indenture Trustee (or any other Paying Agent) an aggregate sum sufficient
to pay the amounts then becoming due under the Notes or any Swap Agreement, such
sum to be held in trust for the benefit of the Persons entitled thereto and
(unless the Paying Agent is the Indenture Trustee) shall promptly notify the
Indenture Trustee of its action or failure so to act.
The Issuer shall cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an instrument
in which such Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the
provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts
due with respect to the Notes or any Swap Agreement in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such Persons as
herein provided;
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(ii) give the Indenture Trustee notice of any default by
the Issuer of which it has actual knowledge (or any other obligor upon the
Notes) in the making of any payment required to be made with respect to the
Notes or any Swap Agreement;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith
pay to the Indenture Trustee all sums held by it in trust for the payment of
Notes or any Swap Agreement if at any time it ceases to meet the standards
required to be met by a Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect
to the withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds,
any money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed for
two years after such amount has become due and payable shall be discharged from
such trust and be paid to the Issuer on Issuer Request or if the Issuer has been
terminated to the Depositor upon its written request; and the Noteholder thereof
shall thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense and direction of the Issuer cause to be published once, in
a newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York and in
Luxembourg, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer. The Indenture Trustee shall also adopt and employ, at the expense
of the Issuer, any other reasonable means of notification of such repayment
(including mailing notice of such repayment to Noteholders whose Notes have been
called but have not been surrendered for redemption or whose right to or
interest in moneys due and payable but not claimed is determinable from the
records of the Indenture Trustee or of any Paying Agent, at the last address of
record for each such Noteholder).
11
SECTION 3.4 Existence. The Issuer shall keep in full effect
its existence, rights and franchises as a statutory trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States of
America, in which case the Issuer shall keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Indenture Trust Estate.
SECTION 3.5 Protection of Indenture Trust Estate. The Issuer
will from time to time execute and deliver all such supplements and amendments
hereto, all such financing statements and continuation statements and will take
such other action necessary or advisable to:
(i) maintain or preserve the lien and security interest
(and the priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of
any grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Indenture Trust
Estate and the rights of the Indenture Trustee, the Noteholders and each Swap
Counterparty in such Indenture Trust Estate against the claims of all persons
and parties.
The Issuer hereby designates the Indenture Trustee its agent
and attorney-in-fact to execute any financing statement, continuation statement
or other instrument required to be executed pursuant to this Section.
SECTION 3.6 Opinions as to Indenture Trust Estate. (a) On the
Closing Date, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording and filing of this Indenture as is
necessary to perfect and make effective the lien and security interest of this
Indenture and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such lien and
security interest effective.
(b) On or before December 31 in each calendar year, beginning in
2003, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
either stating that, in the opinion of such counsel, such action has been taken
with respect to the recording, filing, re-recording and refiling of this
Indenture and any indentures supplemental hereto as is necessary to maintain the
lien and security interest created by this Indenture and relating the details of
such action or stating that in the opinion of such counsel no such action is
necessary to maintain such lien and security interest. Such Opinion of Counsel
shall also describe the recording, filing, recording and refiling of this
Indenture and any indentures supplemental hereto that will, in the opinion of
such counsel, be required to maintain the lien and security interest of this
Indenture until December 31 in the following calendar year.
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SECTION 3.7 Performance of Obligations; Servicing of Trust
Student Loans. (a) The Issuer will not take any action and will use its best
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Indenture Trust Estate or that would
result in the amendment, hypothecation, subordination, termination or discharge
of, or impair the validity or effectiveness of, any such instrument or
agreement, except as expressly provided in this Indenture, any other Basic
Document or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officers' Certificate of
the Issuer shall be deemed to be action taken by the Issuer; provided, however,
the Issuer shall not be liable for any acts of Persons with whom the Issuer has
contracted with reasonable care. Initially, the Issuer has contracted with the
Servicer and the Administrator to assist the Issuer in performing its duties
under this Indenture. The Issuer shall give written notice to the Indenture
Trustee and each Rating Agency of any such contract with any other Person.
(c) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this Indenture, the other Basic
Documents and the instruments and agreements included in the Indenture Trust
Estate, including filing or causing to be filed all UCC financing statements and
continuation statements prepared by the Issuer and required to be filed by the
terms of this Indenture and the Administration Agreement in accordance with and
within the time periods provided for herein and therein. Except as otherwise
expressly provided therein, the Issuer shall not waive, amend, modify,
supplement or terminate any Basic Document or any provision thereof without the
consent of the Indenture Trustee or the Noteholders of at least a majority of
the Outstanding Amount of the Notes. The Issuer shall give written notice to
each Rating Agency of any such waiver, amendment, modification, supplement or
termination.
(d) If a Responsible Officer of the Issuer shall have knowledge of
the occurrence of a Servicer Default or an Administrator Default under the
Servicing Agreement or the Administration Agreement, respectively, the Issuer
shall promptly notify the Indenture Trustee and the Rating Agencies thereof, and
shall specify in such notice the action, if any, the Issuer is taking with
respect to such default. If a Servicer Default shall arise from the failure of
the Servicer to perform any of its duties or obligations under the Servicing
Agreement, or an Administrator Default shall arise from the failure of the
Administrator to perform any of its duties or obligations under the
Administration Agreement, as the case may be, with respect to the Trust Student
Loans, the Issuer shall take all reasonable steps available to it to enforce its
rights under the Basic Documents in respect of such failure.
(e) As promptly as possible after the giving of notice of
termination to the Servicer of the Servicer's rights and powers, pursuant to
Section 5.1 of the Servicing Agreement, or to the Administrator of the
Administrator's rights and powers, pursuant to Section 5.1 of the Administration
Agreement, the Issuer shall appoint a successor servicer (the "Successor
Servicer") or a successor administrator (the "Successor Administrator"),
respectively, and such Successor Servicer or Successor Administrator, as the
case may be, shall accept its appointment by a written assumption in a form
acceptable to the Indenture Trustee. In the event that a Successor Servicer or
Successor Administrator has not been appointed and accepted its
13
appointment at the time when the Servicer or Administrator, as the case may be,
ceases to act as Servicer or Administrator, respectively, the Indenture Trustee
without further action shall automatically be appointed the Successor Servicer
or Successor Administrator, as the case may be. The Indenture Trustee may resign
as the Successor Servicer or the Successor Administrator by giving written
notice of resignation to the Issuer and in such event will be released from such
duties and obligations, such release not to be effective until the date a new
servicer or a new administrator enters into an agreement with the Issuer as
provided below; provided, however, that nothing herein shall require or permit
the Indenture Trustee to act as Servicer, or otherwise service the Trust Student
Loans, in violation of the Higher Education Act. Upon delivery of any such
notice to the Issuer, the Issuer shall obtain a new servicer as the Successor
Servicer under the Servicing Agreement or a new administrator as the Successor
Administrator under the Administration Agreement, as the case may be. Any
Successor Servicer or Successor Administrator, other than the Indenture Trustee,
shall (i) be an established institution (A) that satisfies any requirements of
the Higher Education Act applicable to servicers and (B) whose regular business
includes the servicing or administration of student loans and (ii) enter into a
servicing agreement or an administration agreement, respectively, with the
Issuer having substantially the same provisions as the provisions of the
Servicing Agreement and the Administration Agreement, as applicable. If within
30 days after the delivery of the notice referred to above, the Issuer shall not
have obtained such a new servicer or new administrator, as the case may be, the
Indenture Trustee may appoint, or may petition a court of competent jurisdiction
to appoint, a Successor Servicer or Successor Administrator; provided, however,
that such right to appoint or to petition for the appointment of any such
successor shall in no event relieve the Indenture Trustee from any obligations
otherwise imposed on it under the Basic Documents until such successor has in
fact assumed such appointment. In connection with any such appointment, the
Indenture Trustee may make such arrangements for the compensation of such
successor as it and such successor shall agree, subject to the limitations set
forth below and in the Servicing Agreement or Administration Agreement, as
applicable, and in accordance with Section 5.2 of the Servicing Agreement and
Section 5.2 of the Administration Agreement, the Issuer shall enter into an
agreement with such successor for the servicing or administration of the Trust
Student Loans (such agreement to be in form and substance satisfactory to the
Indenture Trustee). If the Indenture Trustee shall succeed as provided herein to
the Servicer's duties as Servicer with respect to the Trust Student Loans, or
the Administrator's duties with respect to the Issuer and the Trust Student
Loans, as the case may be, it shall do so in its individual capacity and not in
its capacity as Indenture Trustee and, accordingly, the provisions of Article VI
hereof shall be inapplicable to the Indenture Trustee in its duties as the
successor to the Servicer or the Administrator, as the case may be, and the
servicing or administration of the Trust Student Loans. In case the Indenture
Trustee shall become successor to the Servicer or the Administrator, the
Indenture Trustee shall be entitled to appoint as Servicer or as Administrator,
as the case may be, any one of its Affiliates, provided that such appointment
shall not affect or alter in any way the liability of the Indenture Trustee as
Successor Servicer or Successor Administrator, respectively, in accordance with
the terms hereof.
(f) Upon any termination of the Servicer's rights and powers
pursuant to the Servicing Agreement, or any termination of the Administrator's
rights and powers pursuant to the Administration Agreement, as the case may be,
the Issuer shall promptly notify the Indenture Trustee and each Rating Agency.
As soon as a Successor Servicer or a Successor Administrator is appointed, the
Issuer shall notify the Indenture Trustee and each Rating Agency of such
14
appointment, specifying in such notice the name and address of such Successor
Servicer or such Successor Administrator.
(g) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees that it will not, without the
prior written consent of the Indenture Trustee or the Noteholders of at least a
majority in Outstanding Amount of the Notes, amend, modify, waive, supplement,
terminate or surrender, or agree to any amendment, modification, supplement,
termination, waiver or surrender of, the terms of any Collateral or the Basic
Documents, except to the extent otherwise provided in the Basic Documents, or
waive timely performance or observance by the Servicer, the Administrator, the
Depositor, the holder of the Excess Distribution Certificate, Xxxxxx Xxx, the
Issuer or the Eligible Lender Trustee or any Swap Counterparty under the Basic
Documents; provided, however, that no such amendment shall (i) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
distributions that are required to be made for the benefit of the Noteholders or
any Swap Counterparty, or (ii) reduce the aforesaid percentage of the Notes
which are required to consent to any such amendment, without the consent of the
Noteholders of all the Outstanding Notes. If any such amendment, modification,
supplement or waiver shall be so consented to by the Indenture Trustee or such
Noteholders, the Issuer shall give written notice thereof to each Rating Agency
and agrees, promptly following a request by the Indenture Trustee to do so, to
execute and deliver, in its own name and at its own expense, such agreements,
instruments, consents and other documents as the Indenture Trustee may deem
necessary or appropriate in the circumstances.
SECTION 3.8 Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture or
any other Basic Document, sell, transfer, exchange or otherwise dispose of any
of the properties or assets of the Issuer, including those included in the
Indenture Trust Estate, unless directed to do so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than amounts
properly withheld from such payments under the Code or applicable state law) or
assert any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Indenture Trust
Estate;
(iii) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (B) permit any lien,
charge, excise, claim, security interest, mortgage or other encumbrance (other
than the lien of this Indenture) to be created on or extend to or otherwise
arise upon or burden the Indenture Trust Estate or any part thereof or any
interest therein or the proceeds thereof (other than tax liens and other liens
that arise by operation of law, and other than as expressly permitted by the
Basic Documents) or (C) permit the lien of this Indenture not to constitute a
valid first
15
priority (other than with respect to any such tax or other lien) security
interest in the Indenture Trust Estate; or
(iv) enter into any amendment to the Interest Rate Cap
Agreement or any Swap Agreement to cure any ambiguity in, or to correct or
supplement any provision of the Interest Rate Cap Agreement or any Swap
Agreement, unless the Issuer has determined, and the Indenture Trustee has
agreed in writing at the written direction of the Issuer, that the amendment
will not materially adversely affect the interests of the Noteholders and
provided that the Issuer has provided reasonable notice to the Rating Agencies
of such amendment and the Rating Agency Condition is satisfied.
SECTION 3.9 Annual Statement as to Compliance. The Issuer will
deliver to the Indenture Trustee and each Rating Agency, within 120 days after
the end of each fiscal year of the Issuer (commencing with the fiscal year
ending December 31, 2003), an Officers' Certificate of the Issuer stating that:
(i) a review of the activities of the Issuer during such
year and of performance under this Indenture has been made under such Authorized
Officers' supervision; and
(ii) to the best of such Authorized Officers' knowledge,
based on such review, the Issuer has complied with all conditions and covenants
under this Indenture throughout such year, or, if there has been a default in
the compliance of any such condition or covenant, specifying each such default
known to such Authorized Officers and the nature and status thereof.
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain
Terms.
(a) The Issuer shall not consolidate or merge with or into any
other Person, unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and existing
under the laws of the United States of America or any State and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture Trustee, the due and
punctual payment of the principal of, and interest, if any, on all Notes and the
performance or observance of every agreement and covenant of this Indenture and
the other Basic Documents on the part of the Issuer to be performed or observed,
all as provided herein;
(ii) immediately after giving effect to such transaction,
no Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture Trustee) to the effect
that such transaction will not have any material adverse Federal or Delaware
state tax consequence to the Issuer or any Noteholder or any Swap Counterparty;
16
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture
Trustee an Officers' Certificate of the Issuer and an Opinion of Counsel each
stating that such consolidation or merger and such supplemental indenture comply
with this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any filing
required by the Exchange Act).
(b) The Issuer shall not convey or transfer all or substantially
all of its properties or assets, including those included in the Indenture Trust
Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer
the properties and assets of the Issuer the conveyance or transfer of which is
hereby restricted shall (A) be a United States citizen or a Person organized and
existing under the laws of the United States of America or any State, (B)
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Indenture Trustee, in form satisfactory to the Indenture Trustee, the due
and punctual payment of the principal of, and interest, if any, on all Notes and
the performance or observance of every agreement and covenant of this Indenture
on the part of the Issuer to be performed or observed, all as provided herein,
(C) expressly agree by means of such supplemental indenture that all right,
title and interest so conveyed or transferred shall be subject and subordinate
to the rights of Noteholders and any Swap Counterparty, (D) unless otherwise
provided in such supplemental indenture, expressly agree to indemnify, defend
and hold harmless the Issuer against and from any loss, liability or expense
arising under or related to this Indenture and the Notes and (E) expressly agree
by means of such supplemental indenture that such Person (or if a group of
Persons, then one specified Person) shall make all filings with the Commission
(and any other appropriate Person) required by the Exchange Act in connection
with the Notes;
(ii) immediately after giving effect to such transaction,
no Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture Trustee) to the effect
that such transaction will not have any material adverse Federal or Delaware
state tax consequence to the Issuer or any Noteholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture
Trustee an Officers' Certificate of the Issuer and an Opinion of Counsel each
stating that such conveyance or transfer and such supplemental indenture comply
with this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any filing
required by the Exchange Act).
17
SECTION 3.11 Successor or Transferee. (a) Upon any
consolidation or merger of the Issuer in accordance with Section 3.10(a), the
Person formed by or surviving such consolidation or merger (if other than the
Issuer) shall succeed to, and be substituted for, and may exercise every right
and power of, the Issuer under this Indenture with the same effect as if such
Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties
of the Issuer pursuant to Section 3.10(b), SLM Student Loan Trust 2003-11 will
be released from every covenant and agreement of this Indenture to be observed
or performed on the part of the Issuer with respect to the Notes immediately
upon the delivery by the Issuer of written notice to the Indenture Trustee
stating that SLM Student Loan Trust 2003-11 is to be so released.
SECTION 3.12 No Other Business. The Issuer shall not engage in
any business other than financing (including entering into Swap Agreements from
time to time), purchasing, owning, selling and managing the Trust Student Loans
and the other assets of the Issuer and related proceeds in the manner
contemplated by this Indenture and the other Basic Documents and activities
incidental thereto.
SECTION 3.13 No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
SECTION 3.14 Obligations of Servicer and Administrator. The
Issuer shall cause the Servicer to comply with Sections 3.1, 3.2 and 3.3 of the
Administration Agreement and Section 3.7 of the Servicing Agreement and the
Administrator to comply with Sections 2.11, 3.1, 3.2 and 3.3 of the
Administration Agreement.
SECTION 3.15 Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by this Indenture and the other Basic
Documents, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.16 Capital Expenditures. The Issuer shall not make
any expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).
SECTION 3.17 Restricted Payments. The Issuer shall not,
directly or indirectly, (i) pay any dividend or make any distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, to the Eligible Lender Trustee or any owner of a beneficial
interest in the Issuer or otherwise with respect to any ownership or equity
interest or security in or of the Issuer or to the Servicer or the
Administrator, (ii) redeem, purchase, retire or otherwise acquire for value any
such ownership or equity interest or security or (iii) set aside or otherwise
segregate any amounts for any such purpose; provided, however, that the Issuer
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may make, or cause to be made, distributions to the Servicer, the Eligible
Lender Trustee, the Indenture Trustee, the Noteholders, any Swap Counterparty,
any Remarketing Agent, the Administrator, the Depositor and the holder of the
Excess Distribution Certificate as contemplated by, and to the extent funds are
available for such purpose under, this Indenture and the other Basic Documents.
The Issuer will not, directly or indirectly, make payments to or distributions
from the Collection Account except in accordance with this Indenture and the
other Basic Documents.
SECTION 3.18 Notice of Events of Default. The Issuer shall
give the Indenture Trustee, the Rating Agencies and each Swap Counterparty
prompt written notice of each Event of Default hereunder and each default on the
part of Depositor of its obligations under the Sale Agreement, Xxxxxx Xxx of its
obligations under the Purchase Agreement, the Servicer of its obligations under
the Servicing Agreement, or the Administrator of its obligations under the
Administration Agreement. In addition, the Issuer shall deliver to the Indenture
Trustee, each Rating Agency and each Swap Counterparty, within five days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of the Issuer of any event which with the giving of notice and the lapse of time
would become an Event of Default under Section 5.1(iii), its status and what
action the Issuer is taking or proposes to take with respect thereto.
SECTION 3.19 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1 Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the Notes except
as to (i) rights of registration of transfer and exchange, (ii) substitution of
mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon, (iv) Sections 3.3,
3.4, 3.5, 3.8, 3.10, 3.12 and 3.13, (v) the rights, obligations and immunities
of the Indenture Trustee hereunder (including, without limitation, the rights of
the Indenture Trustee under Section 6.7 and the obligations of the Indenture
Trustee under Section 4.2) and (vi) the rights of Noteholders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them, and the Indenture Trustee, on demand of and at
the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Notes, when:
(a) either
(1) all Notes theretofore authenticated and delivered
(other than (i) Notes that have been destroyed, lost or stolen and that have
been replaced or paid as provided in Section 2.5 and (ii) Notes for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or discharged from such
trust, as provided in Section 3.3) have been delivered to the Indenture Trustee
for cancellation; or
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(2) all Notes not theretofore delivered to the Indenture
Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their
respective Note Final Maturity Date, within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Indenture Trustee for the giving of
notice of redemption by the Indenture Trustee in the name, and at the expense,
of the Issuer, and the Issuer, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited with the Indenture
Trustee cash or direct obligations of or obligations guaranteed by the United
States of America (which will mature prior to the date such amounts are
payable), in trust for such purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore delivered to the
Indenture Trustee for cancellation when due to the Note Final Maturity Date;
(b) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(c) the Issuer has delivered to the Indenture Trustee an Officers'
Certificate of the Issuer, an Opinion of Counsel and (if required by the TIA or
the Indenture Trustee) an Independent Certificate from a firm of certified
public accountants, each meeting the applicable requirements of Section 11.1(a)
and, subject to Section 11.2, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
SECTION 4.2 Application of Trust Money. All moneys deposited
with the Indenture Trustee pursuant to Section 4.1 hereof shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Noteholders of the particular Notes for
the payment or redemption of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal and
interest; but such moneys need not be segregated from other funds except to the
extent required herein or in the Administration Agreement or required by law.
SECTION 4.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
the Notes, all moneys then held by any Paying Agent other than the Indenture
Trustee under the provisions of this Indenture with respect to such Notes shall,
upon demand of the Issuer, be paid to the Indenture Trustee to be held and
applied according to Section 3.3 and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
SECTION 4.4 Auction of Trust Student Loans. Any Trust Student
Loans remaining in the Trust as of the later of (a) the end of Collection Period
for the September 2008 Distribution Date or (b) the end of the first Collection
Period when the Pool Balance is equal to 10% or less of the initial Pool Balance
three Business Days prior to such Distribution Date (the "Trust Auction Date")
shall be offered for sale by the Indenture Trustee unless the Servicer has
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exercised its option to purchase the Trust Estate as described in Section 6.1(a)
of the Administration Agreement with respect to such Distribution Date. The
Servicer will be deemed to have waived such option if it fails to notify the
Eligible Lender Trustee and the Indenture Trustee of its exercise thereof in
writing prior to the Indenture Trustee's acceptance of a bid to purchase such
Trust Student Loans; provided, however, that there shall be no such offer for
sale if the Indenture Trustee fails to provide notice to the Servicer in
accordance with this Section 4.4. The Indenture Trustee shall provide written
notice to the Servicer of any such offer for sale at least 5 Business Days in
advance of the Trust Auction Date. The Indenture Trustee shall permit the
Servicer or any of its Affiliates including Xxxxxx Xxx and the Servicer to offer
bids only if the Pool Balance as of the applicable Trust Auction Date is equal
to 10% or less of the Initial Pool Balance and such bid does not exceed the fair
market value of the Trust Student Loans as of the Trust Auction Date. If at
least two bids are received, the Indenture Trustee shall solicit and resolicit
new bids from all participating bidders until only one bid remains or the
remaining bidders decline to resubmit bids. The Indenture Trustee shall accept
the highest of such remaining bids if it is equal to or in excess of both the
Minimum Purchase Amount and the fair market value of such Trust Student Loans as
of the end of the Collection Period immediately preceding the Trust Auction
Date. If at least two bids are not received or the highest bid after the
resolicitation process is completed is not equal to or in excess of the higher
of the Minimum Purchase Amount and the fair market value of the Trust Student
Loans, the Indenture Trustee shall not consummate such sale. The Indenture
Trustee may consult, and, at the direction of the Depositor, shall consult, with
a financial advisor, including an Initial Purchaser of the Notes or the
Administrator, to determine if the fair market value of the Trust Student Loans
has been offered. The proceeds of any such sale will be paid at the time set
forth in Section 2.6 of the Administration Agreement and applied in the order of
priority set forth in Section 5.4(b). If the sale is not consummated in
accordance with the foregoing, the Indenture Trustee may, but shall not be under
any obligation to, solicit bids for sale of the Trust Student Loans with respect
to future Distribution Dates upon terms similar to those described above,
including the Servicer's waiver of its option to purchase the Trust Estate in
accordance with Section 6.1(a) of the Administration Agreement with respect to
each such future Distribution Date.
ARTICLE V
Remedies
SECTION 5.1 Events of Default. "Event of Default," wherever
used herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) default in the payment of any interest on any Note
when the same becomes due and payable, and such default shall continue for a
period of five days; or
(ii) default in the payment of the principal of any Note
when the same becomes due and payable on the related Note Final Maturity Date;
or
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(iii) default in the observance or performance of any
covenant or agreement of the Issuer made in this Indenture (other than a
covenant or agreement, a default in the observance or performance of which is
elsewhere in this Section specifically dealt with), or any representation or
warranty of the Issuer made in this Indenture or in any certificate or other
writing having been incorrect in any material respect as of the time when made,
such default or breach having a material adverse effect on the holders of the
Notes, and such default or breach shall continue or not be cured, or the
circumstance or condition in respect of which such misrepresentation or warranty
was incorrect shall not have been eliminated or otherwise cured, for a period of
30 days after there shall have been given, by registered or certified mail, to
the Issuer by the Indenture Trustee or to the Issuer and the Indenture Trustee
by the Noteholders of at least 25% of the Outstanding Amount of the Notes, a
written notice specifying such default or incorrect representation or warranty
and requiring it to be remedied and stating that such notice is a notice of
Default hereunder; or
(iv) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer or any substantial
part of the Indenture Trust Estate in an involuntary case under any applicable
Federal or state bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial part of
the Indenture Trust Estate, or ordering the winding-up or liquidation of the
Issuer's affairs, and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(v) the commencement by the Issuer of a voluntary case
under any applicable Federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or the consent by the Issuer to the entry of an
order for relief in an involuntary case under any such law, or the consent by
the Issuer to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the Issuer or
for any substantial part of the Indenture Trust Estate, or the making by the
Issuer of any general assignment for the benefit of creditors, or the failure by
the Issuer generally to pay its debts as such debts become due, or the taking of
action by the Issuer in furtherance of any of the foregoing.
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment. If an Event of Default should occur and be continuing, then and in
every such case the Indenture Trustee or the Noteholders representing not less
than a majority of the Outstanding Amount of the Notes may declare all the Notes
to be immediately due and payable, by a notice in writing to the Issuer (and to
the Indenture Trustee if given by Noteholders), and upon any such declaration
the unpaid principal amount of such Notes, together with accrued and unpaid
interest thereon through the date of acceleration, shall become immediately due
and payable, subject, however, to Section 5.4 of this Indenture.
At any time after such declaration of acceleration of maturity
has been made and before a judgment or decree for payment of the money due has
been obtained by the Indenture Trustee as hereinafter in this Article V
provided, the Noteholders of Notes representing a majority of the Outstanding
Amount of the Notes, by written notice to the Issuer and the Indenture Trustee,
may rescind and annul such declaration and its consequences if:
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(i) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(a) all payments of principal of and interest on
all Notes and all other amounts that would then be due
hereunder or upon such Notes if the Event of Default giving
rise to such acceleration had not occurred; and
(b) all sums paid or advanced by the Indenture
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its
agents and counsel; and
(ii) all Events of Default, other than the nonpayment of
the principal of the Notes that has become due solely by such acceleration, have
been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or
impair any right consequent thereto.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee. The Issuer covenants that if (i) default is
made in the payment of any interest on any Note when the same becomes due and
payable, and such default continues for a period of five days, or (ii) default
is made in the payment of the principal of any Note when the same becomes due
and payable at the related Note Final Maturity Date, the Issuer shall, upon
demand of the Indenture Trustee, pay to it, for the benefit of the Noteholders,
the whole amount then due and payable on such Notes for principal and interest,
with interest upon the overdue principal, and, to the extent payment at such
rate of interest shall be legally enforceable, upon overdue installments of
interest, at the rate specified in Section 2.7 and in addition thereto such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and its agents and counsel.
(a) In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Indenture Trustee, in its own name and as trustee of an
express trust, may institute a Proceeding for the collection of the sums so due
and unpaid, and may prosecute such Proceeding to judgment or final decree, and
may enforce the same against the Issuer or other obligor upon such Notes and
collect in the manner provided by law out of the property of the Issuer or other
obligor upon such Notes, wherever situated, the moneys adjudged or decreed to be
payable.
(b) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.4, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders by
such appropriate Proceedings as the Indenture Trustee shall deem most effective
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy or legal or
equitable right vested in the Indenture Trustee by this Indenture or by law.
(c) In case there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Indenture Trust Estate,
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Proceedings under Title 11 of the United States Code or any other applicable
Federal or state bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or its property or such other obligor or Person, or in
case of any other, comparable judicial Proceedings relative to the Issuer or
other obligor upon the Notes, or to the creditors or property of the Issuer or
such other obligor, the Indenture Trustee, irrespective of whether the principal
of any Notes shall then be due and payable, as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for reasonable
compensation to the Indenture Trustee and each predecessor Indenture Trustee,
and their respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of negligence
or bad faith) and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations,
to vote on behalf of the Noteholders in any election of a trustee, a standby
trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts received
with respect to the claims of the Noteholders and the Indenture Trustee on their
behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Indenture Trustee or the Noteholders allowed in any judicial proceedings
relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other
similar official in any such Proceeding is hereby authorized by each of such
Noteholders to make payments to the Indenture Trustee, and, in the event that
the Indenture Trustee shall consent to the making of payments directly to such
Noteholders to pay to the Indenture Trustee such amounts as shall be sufficient
to cover reasonable compensation to the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee except as a result of negligence
or bad faith.
(d) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Noteholder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
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(e) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such action or Proceedings
instituted by the Indenture Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents and attorneys, shall
be for the ratable benefit of the Noteholders.
(f) In any Proceedings brought by the Indenture Trustee (and also
any Proceedings involving the interpretation of any provision of this Indenture
to which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
SECTION 5.4 Remedies; Priorities. If an Event of Default shall
have occurred and be continuing, the Indenture Trustee may do one or more of the
following (subject to Section 5.5):
(a) (i) institute Proceedings in its own name and as trustee
of an express trust for the collection of all amounts then payable on the Notes
or under this Indenture with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from the Issuer and any
other obligor upon such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture, with respect to the Indenture
Trust Estate;
(iii) exercise any remedies of a secured party under the
UCC with respect to the Trust Estate and take any other appropriate action to
protect and enforce the rights and remedies of the Indenture Trustee and the
Noteholders;
(iv) sell the Indenture Trust Estate or any portion
thereof or rights or interest therein, at one or more public or private sales
called and conducted in any manner permitted by law; and/or
(v) elect to have the Eligible Lender Trustee maintain
ownership of the Trust Student Loans and continue to apply collections with
respect to the Trust Student Loans as if there had been no declaration of
acceleration;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Indenture Trust Estate following an Event of Default, other than
an Event of Default described in Section 5.1(i) or (ii) with respect to the
Class A Notes, unless (A) the Noteholders of 100% of the Outstanding Amount of
the Class A Notes consent thereto, (B) the proceeds of such sale or liquidation
distributable to the Class A Noteholders are sufficient to discharge in full all
amounts then due and unpaid upon such Class A Notes for principal and interest
or (C) the Indenture Trustee determines that the Indenture Trust Estate will not
continue to provide sufficient funds for the payment of principal of and
interest on the Class A Notes as would have become due if the Class A Notes had
not been declared due and payable, and the Indenture Trustee obtains the consent
of Noteholders of 66-2/3% of the Outstanding Amount of the Class A Notes;
provided, further, that the Indenture Trustee may not sell or otherwise
liquidate the Indenture Trust Estate
25
following an Event of Default, other than an Event of Default described in
Section 5.1(i) or (ii) with respect to the Class A Notes, unless (D) the
proceeds of such sale or liquidation distributable to the Class B Noteholders
plus the proceeds of the sale or liquidation of the Trust Estate distributable
to the Class B Noteholders are sufficient to pay to the Class B Noteholders the
Outstanding Amount of the Class B Notes plus accrued and unpaid interest thereon
or (E) after receipt of notice from the Eligible Lender Trustee that the
proceeds of such sale or liquidation distributable to the Class B Noteholders
plus the proceeds of the sale or liquidation of the Trust Estate distributable
to the Class B Noteholders would not be sufficient to pay to the Class B
Noteholders the outstanding principal plus accrued and unpaid interest thereon,
the Class B Noteholders of at least a majority of the Outstanding Amount of the
Class B Notes consent thereto. In determining such sufficiency or insufficiency
with respect to clauses (B), (C), (D) and (E), the Indenture Trustee may, but
need not, obtain and rely upon an opinion of an Independent investment banking
or accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Indenture Trust Estate and/or Trust
Estate, as applicable, for such purpose.
(b) Notwithstanding the provisions of Section 8.2, following the
occurrence and during the continuation of an Event of Default specified in
Section 5.1(i), 5.1(ii), 5.1(iv) or 5.1(v) which has resulted in an acceleration
of the Notes, if the Indenture Trustee collects any money or property, it shall
pay out the money or property (and other amounts including amounts, if any, held
on deposit in each of the Trust Accounts) held as Collateral for the benefit of
the Noteholders, net of liquidation costs associated with the sale of the assets
of the Trust, in the following order:
FIRST: to the applicable Noteholders of each class
of Reset Rate Notes then bearing interest at a fixed rate, the amount, if any,
on deposit in the Accumulation Account related to such class of Reset Rate Notes
(excluding any Investment Earnings thereon) in reduction of the Outstanding
Amount of each such class of Reset Rate Notes until each such class is paid in
full;
SECOND: to the Indenture Trustee for amounts due
under Section 6.7;
THIRD: to the Servicer for due and unpaid Primary
Servicing Fees;
FOURTH: to the Administrator, any due and unpaid
Administration Fees;
FIFTH: pro rata, based on amounts due and owing:
A: to the Class A Noteholders, the Class A Noteholders'
Interest Distribution Amount, pro rata, based on the
amounts payable as Class A Noteholders' Interest
Distribution Amount;
B: to the applicable Swap Counterparties, pro rata, the
amount of any interest at the related floating rate
due to each Swap Counterparty under the related
Interest Rate Swap Agreement; and
C: to each Swap Counterparty, the amount of any Swap
Termination Payments due to the Swap Counterparty
under the related Interest Rate
26
Swap Agreement due to a Swap Termination Event (as
defined in the related Swap Agreement) resulting from
a payment default by the Issuer, a non-rescindable,
non-waivable acceleration of the Notes, or the
bankruptcy or insolvency of the Issuer.
SIXTH: to the Class A Noteholders, ratably, an
amount sufficient to reduce the respective principal balances of the Class A
Notes to zero;
SEVENTH: to the Class B Noteholders for amounts due
and unpaid on the Class B Notes for interest at the Class B Note Rate;
EIGHTH: to the Class B Noteholders, an amount
sufficient to reduce the Outstanding Amount of the Class B Notes to zero;
NINTH: to the Servicer, for any unpaid Carryover
Servicing Fees;
TENTH: to any Swap Counterparties, pro rata, the
amount of any Swap Termination Payments due to such Swap Counterparties by the
Issuer and not payable in Clause FIFTH (C);
ELEVENTH: to the Remarketing Agents, any due and
unpaid Remarketing Fees payable by the Issuer to the extent not previously paid
from amounts on deposit in the Remarketing Fee Account;
TWELFTH: sequentially, first to the Remarketing
Agents, and second to the Administrator for any advances made on behalf of the
Issuer, in each case, for payment of certain costs and expenses as set forth in
Section 3 of the Remarketing Agreement in connection with the remarketing of a
class of Reset Rate Notes not previously reimbursed by the Issuer;
THIRTEENTH: to the Interest Rate Cap Swap Counterparty,
the amount of any termination payment due to the Interest Rate Cap Swap
Counterparty by the Issuer under the Interest Rate Cap Agreement; and
FOURTEENTH: to the Excess Distribution
Certificateholder, any remaining funds.
The Indenture Trustee may fix a record date and payment date
for any payment to Noteholders pursuant to this Section. At least 15 days before
such record date, the Indenture Trustee shall mail to each Noteholder and the
Issuer a notice that states the record date, the payment date and the amount to
be paid.
SECTION 5.5 Optional Preservation of the Trust Student Loans.
If the Notes have been declared to be due and payable under Section 5.2
following an Event of Default and such declaration and its consequences have not
been rescinded and annulled, the Indenture Trustee may, but need not, elect to
maintain possession of the Indenture Trust Estate. It is the desire of the
parties hereto and the Noteholders that there be at all times sufficient funds
for the payment of principal of and interest on the Notes, and the Indenture
Trustee shall take such desire into account when determining whether or not to
maintain possession of the Indenture
27
Trust Estate. In determining whether to maintain possession of the Indenture
Trust Estate, the Indenture Trustee may, but need not, obtain and rely upon an
opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Indenture Trust Estate for such purpose.
SECTION 5.6 Limitation of Suits. No Noteholder shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(i) such Noteholder has previously given written notice
to the Indenture Trustee of a continuing Event of Default;
(ii) the Noteholders of not less than 25% of the
Outstanding Amount of the Notes have made written request to the Indenture
Trustee to institute such Proceeding in respect of such Event of Default in its
own name as Indenture Trustee hereunder;
(iii) such Noteholder or Noteholders have offered to the
Indenture Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt
of such notice, request and offer of indemnity has failed to institute such
Proceeding; and
(v) no direction inconsistent with such written request
has been given to the Indenture Trustee during such 60-day period by the
Noteholders of a majority of the Outstanding Amount of the Notes;
it being understood and intended that no one or more
Noteholders shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this indenture to affect, disturb or prejudice the
rights of any other Noteholders or to obtain or to seek to obtain priority or
preference over any other Noteholders or to enforce any right under this
Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting
or inconsistent requests and indemnity from two or more groups of Noteholders,
each representing less than a majority of the Outstanding Amount of the Notes,
the Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders to Receive
Principal and Interest. Notwithstanding any other provisions in this Indenture,
each Noteholder shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest on its Note on or after the
respective due dates thereof expressed in such Note or in this Indenture (or, in
the case of redemption, on or after the Redemption Date) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Noteholder.
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SECTION 5.8 Restoration of Rights and Remedies. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any
right or remedy under this Indenture and such Proceeding has been discontinued
or abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had been
instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Indenture Trustee, any Swap
Counterparty or to the Noteholders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee, any Swap Counterparty or any Noteholder to
exercise any right or remedy accruing upon any Default shall impair any such
right or remedy or constitute a waiver of any such Default or an acquiescence
therein. Every right and remedy given by this Article V or by law to the
Indenture Trustee, any Swap Counterparty or to the Noteholders may be exercised
from time to time, and as often as may be deemed expedient, by the Indenture
Trustee, any Swap Counterparty or by the Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. The Noteholders of a
majority of the Outstanding Amount of the Notes shall have the right to direct
the time, method and place of conducting any Proceeding for any remedy available
to the Indenture Trustee with respect to the Notes or exercising any trust or
power conferred on the Indenture Trustee; provided that
(i) such direction shall not be in conflict with any rule
of law or with this Indenture;
(ii) subject to the express terms of Section 5.4, any
direction to the Indenture Trustee to sell or liquidate the Indenture Trust
Estate shall be by the Noteholders of not less than 100% of the Outstanding
Amount of the Notes;
(iii) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Indenture Trust Estate
pursuant to such Section, then any direction to the Indenture Trustee by
Noteholders of less than 100% of the Outstanding Amount of the Notes to sell or
liquidate the Indenture Trust Estate shall be of no force and effect; and
(iv) the Indenture Trustee may take any other action
deemed proper by the Indenture Trustee that is not inconsistent with such
direction;
provided, however, that, subject to Section 6.1, the Indenture Trustee need not
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholders not consenting to such
action.
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SECTION 5.12 Waiver of Past Defaults. Prior to the time a
judgment or decree for payment of money due has been obtained as described in
Section 5.2, the Noteholders of not less than a majority of the Outstanding
Amount of the Notes may waive any past Default and its consequences except a
Default (a) in payment when due of principal of or interest on any of the Notes
or (b) in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of each Noteholder. In the case of any such waiver,
the Issuer, the Indenture Trustee and the Noteholders shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereto.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this
Indenture agree, and each Noteholder by such Noteholder's acceptance of any Note
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Indenture Trustee for any action taken, suffered or omitted
by it as Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes or (c) any suit Instituted by any Noteholder for
the enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture (or,
in the case of redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance of
this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to
seek and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture. Neither the lien of this Indenture nor any
rights or remedies of the Indenture Trustee or the Noteholders shall be impaired
by the recovery of any judgment by the Indenture Trustee against the Issuer or
by the levy of any execution under such judgment upon any portion of the
Indenture Trust Estate or upon any of the assets of the Issuer. Any money or
property collected by the Indenture Trustee shall be applied in accordance with
Section 5.4(b).
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SECTION 5.16 Performance and Enforcement of Certain
Obligations.
(a) Promptly following a request from the Indenture Trustee to do
so and at the Administrator's expense, the Issuer shall take all such lawful
action as the Indenture Trustee may request to compel or secure the performance
and observance by the Depositor, Xxxxxx Xxx, the Administrator and the Servicer,
as applicable, of each of their obligations to the Issuer, whether directly or
by assignment, under or in connection with the Sale Agreement, the Purchase
Agreement, the Administration Agreement and the Servicing Agreement,
respectively, in accordance with the terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Issuer under
or in connection with the Sale Agreement, the Purchase Agreement, the
Administration Agreement and the Servicing Agreement, as the case may be, to the
extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Depositor, Xxxxxx Xxx, the
Administrator or the Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Depositor, Xxxxxx Mae, the Administrator or the Servicer of each of their
obligations under the Sale Agreement, the Purchase Agreement, the Administration
Agreement and the Servicing Agreement, respectively.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the written direction of the Noteholders of 66
2/3% of the Outstanding Amount of the Notes shall, exercise all rights,
remedies, powers, privileges and claims of the Issuer against the Depositor,
Xxxxxx Xxx, the Administrator or the Servicer under or in connection with the
Sale Agreement, the Purchase Agreement, the Administration Agreement and the
Servicing Agreement, respectively, including the right or power to take any
action to compel or secure performance or observance by the Depositor, Xxxxxx
Mae, the Administrator or the Servicer of each of their obligations to the
Issuer thereunder, whether directly or by assignment, and to give any consent,
request, notice, direction, approval, extension or waiver under the Sale
Agreement, the Purchase Agreement, the Administration Agreement and the
Servicing Agreement, respectively, and any right of the Issuer to take such
action shall be suspended.
ARTICLE VI
The Indenture Trustee
SECTION 6.1 Duties of Indenture Trustee. (a) If an Event of
Default has occurred and is continuing, the Indenture Trustee shall exercise the
rights and powers vested in it by this Indenture and use the same degree of care
and skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture against
the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed
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therein, upon certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; provided, however, that the
Indenture Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Indenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 5.11.
(d) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing with
the Issuer.
(e) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms of
this Indenture or the other Basic Documents.
(f) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayments of such funds or adequate indemnity satisfactory to it against any
loss, liability or expense is not reasonably assured to it.
(g) Except as expressly provided in the Basic Documents, the
Indenture 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.
(h) In the event that the Indenture Trustee is the Paying Agent or
the Note Registrar, the rights and protections afforded to the Indenture Trustee
pursuant to this Indenture shall also be afforded to the Indenture Trustee in
its capacity as Paying Agent or Note Registrar.
(i) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section and to the provisions of the
TIA.
SECTION 6.2 Rights of Indenture Trustee. (a) The Indenture
Trustee may rely on any document believed by it to be genuine and to have been
signed or presented by the proper Person. The Indenture Trustee need not
investigate any fact or matter stated in such document.
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(b) Before the Indenture Trustee acts or refrains from acting, it
may require and shall be entitled to receive an Officers' Certificate of the
Issuer and/or an Opinion of Counsel. The Indenture Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the Indenture Trustee's
conduct does not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice
or opinion of counsel with respect to legal matters relating to this Indenture
and the Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
SECTION 6.3 Individual Rights of Indenture Trustee. The
Indenture Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Issuer or its Affiliates
with the same rights it would have if it were not Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Indenture Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4 Indenture Trustee's Disclaimer. The Indenture
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be accountable
for the Issuer's use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Issuer in the Indenture or in any document
issued in connection with the sale of the Notes or in the Notes other than the
Indenture Trustee's certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is
continuing and if it is either actually known or written notice of the existence
thereof has been delivered to a Responsible Officer of the Indenture Trustee,
the Indenture Trustee shall mail notice of the Default to each Noteholder and
any Swap Counterparty within 90 days and to each Rating Agency as soon as
practicable within 30 days after it occurs. Except in the case of a Default in
payment of principal of or interest on any Note (including payments pursuant to
the mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Noteholders and any Swap Counterparty. Except as provided in the first sentence
of this Section 6.5, in no event shall the Indenture Trustee be deemed to have
knowledge of a Default or an Event of Default.
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SECTION 6.6 Reports by Indenture Trustee to Noteholders. The
Indenture Trustee shall deliver to each Noteholder (and to each Person who was a
Noteholder at any time during the applicable calendar year) such information as
may be required to enable such holder to prepare its Federal and state income
tax returns. Within 60 days after each December 31 beginning with the December
31 following the date of this Indenture, the Indenture Trustee shall mail to
each Noteholder a brief report as of such December 31 that complies with TIA
Section 313(a) if required by said Section. The Indenture Trustee shall also
comply with TIA Section 313(b). A copy of each such report required pursuant to
TIA Section 313(a) or (b) shall, at the time of such transaction to Noteholders,
be filed by the Indenture Trustee with the Commission and with each securities
exchange, if any, upon which the Notes are listed, provided that the Issuer has
previously notified the Indenture Trustee of such listing.
SECTION 6.7 Compensation and Indemnity. The Issuer shall cause
the Depositor to pay to the Indenture Trustee reasonable compensation for its
services in accordance with a separate agreement between the Depositor and the
Indenture Trustee and shall cause the Depositor to reimburse the Indenture
Trustee for all reasonable out-of-pocket expenses incurred or made by it as
provided in such separate agreement. The Indenture Trustee's compensation shall
not be limited by any law on compensation of a trustee of an express trust. The
Issuer shall cause the Administrator to indemnify the Indenture Trustee and its
directors, officers, employees and agents against any and all loss, liability or
expense (including attorneys' fees) incurred by it in connection with the
administration of this trust and the performance of its duties hereunder and
under the other Basic Documents. The Indenture Trustee shall notify the Issuer
and the Administrator promptly of any claim for which it may seek indemnity.
Failure by the Indenture Trustee to so notify the Issuer and the Administrator
shall not relieve the Issuer or the Administrator of its obligations hereunder
and under the other Basic Documents. The Issuer shall cause the Administrator to
defend the claim and the Administrator shall not be liable for the legal fees
and expenses of the Indenture Trustee after it has assumed such defense;
provided, however, that, in the event that there may be a conflict between the
positions of the Indenture Trustee and the Administrator in conducting the
defense of such claim, the Indenture Trustee shall be entitled to separate
counsel acceptable to it in its sole discretion the reasonable fees and expenses
of which shall be paid by the Administrator on behalf of the Issuer. Neither the
Issuer nor the Administrator need reimburse any expense or indemnify against any
loss, liability or expense incurred by the Indenture Trustee through the
Indenture Trustee's own willful misconduct, negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee
pursuant to this Section shall survive the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of a Default specified in
Section 5.1(iv) or (v) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of Indenture Trustee. No resignation
or removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.8. The Indenture Trustee
may resign at any time by so notifying the Issuer. The Noteholders of a majority
in Outstanding Amount of the Notes may remove the Indenture
34
Trustee by so notifying the Indenture Trustee and may appoint a successor
Indenture Trustee. The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section
6.11;
(ii) an Insolvency Event occurs with respect to the
Indenture Trustee;
(iii) a receiver or other public officer takes charge of
the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
If the Indenture Trustee resigns or is removed or if a vacancy
exists in the office of Indenture Trustee for any reason (the Indenture Trustee
in such event being referred to herein as the retiring Indenture Trustee), the
Issuer shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to the
Issuer. Thereupon the resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the Indenture Trustee under this Indenture. The
successor Indenture Trustee shall mail a notice of its succession to
Noteholders. The retiring Indenture Trustee shall promptly transfer all property
held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within
60 days after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Noteholders of a majority in Outstanding
Amount of the Notes may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee. The successor Indenture Trustee
shall give notice of its appointment as successor Indenture Trustee to the
Rating Agencies.
If the Indenture Trustee fails to comply with Section 6.11,
any Noteholder may petition any court of competent jurisdiction for the removal
of the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section, the Issuer's and the Administrator's obligations under
Section 6.7 shall continue for the benefit of the retiring Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by Merger. If the
Indenture Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture Trustee,
provided that such corporation or banking association shall be otherwise
qualified and eligible under Section 6.11. The Indenture Trustee shall provide
the Rating Agencies prior written notice of any such transaction.
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In case at the time such successor or successors by merger,
conversion or consolidation to the Indenture Trustee shall succeed to the trusts
created by this Indenture any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
SECTION 6.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Indenture Trust Estate may at the time be located, the
Indenture Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of the
Indenture Trust Estate, and to vest in such Person or Persons, in such capacity
and for the benefit of the Noteholders, such title to the Indenture Trust
Estate, or any part hereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the Indenture
Trustee may consider necessary or desirable. No such appointment shall relieve
the Indenture Trustee of its obligations hereunder. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 6.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.8 hereof.
(b) Every 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 Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture 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 Indenture 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 Indenture 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
Indenture Trust Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as
36
if given to each of them. Every instrument appointing any separate trustee or
co-trustee shall refer to this Indenture and the conditions of this Article VI.
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 Indenture Trustee or
separately, as may be provided therein, subject to all the provisions of this
Indenture, specifically including every provision of this Indenture relating to
the conduct of, affecting the liability of, or affording protection to, the
Indenture Trustee. Every such instrument shall be filed with the Indenture
Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
the Indenture Trustee, 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 Indenture 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
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The Indenture
Trustee shall at all times satisfy the requirements of TIA Section 310(a), the
requirements of an "eligible lender" under 20 USC Section 1085(d) and the
requirements of Rule 3a-7(4)(i) of the General Rules and Regulations under the
Investment Company Act of 1940, as amended. The Indenture Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition and it shall have a long-term senior
unsecured debt rating of not less than investment grade by each of the Rating
Agencies. The Indenture Trustee shall comply with TIA Section 310(b), including
the optional provision permitted by the second sentence of TIA Section 310(b)
9); provided, however, that there shall be excluded from the operation of TIA
Section 310(b)(1) any indenture or indentures under which other securities of
the Issuer are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against the
Issuer. The Indenture Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). An Indenture Trustee who
has resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated.
ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.1 Issuer to Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuer will furnish or cause to be furnished to
the Indenture Trustee (a) not more than five days after the earlier of (i) each
Record Date and (ii) three months after the last Record Date, a list, in such
form as the Indenture Trustee may reasonably require, of the names and addresses
of the Noteholders as of such Record Date, (b) at such other times as the
Indenture Trustee may request in writing, within 30 days after receipt by the
Issuer of any such request, a list of similar form and content as of a date not
more than 10 days prior to the time such list is furnished; provided, however,
that so long as the Indenture Trustee is the Note Registrar, no such list shall
be required to be furnished.
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SECTION 7.2 Preservation of Information; Communications to
Noteholders. The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Noteholders contained in
the most recent list furnished to the Indenture Trustee as provided in Section
7.1 and the names and addresses of Noteholders received by the Indenture Trustee
in its capacity as Note Registrar. The Indenture Trustee may destroy any list
furnished to it as provided in such Section 7.1 upon receipt of a new list so
furnished.
(a) Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or
under the Notes. Upon receipt by the Indenture Trustee of any request by three
or more Noteholders or by one or more holders of Notes evidencing not less than
25% of the Outstanding Amount of the Notes to receive a copy of the current list
of Noteholders (whether or not made pursuant to TIA Section 312(b)), the
Indenture Trustee shall promptly notify the Administrator thereof by providing
to the Administrator a copy of such request and a copy of the list of
Noteholders produced in response thereto.
(b) The Issuer, the Indenture Trustee and the Note Registrar shall
have the protection of TIA Section 312(c).
(c) On each Distribution Date the Indenture Trustee shall provide
to each Noteholder of record as of the related Record Date the information
provided by the Administrator to the Indenture Trustee on the related
Determination Date pursuant to Section 2.11 of the Administration Agreement.
(d) The Indenture Trustee shall furnish to the Noteholders
promptly upon receipt of a written request therefor, duplicates or copies of all
reports, notices, requests, demands, certificates, financial statements and any
other instruments furnished to the Indenture Trustee under the Basic Documents.
The Indenture Trustee shall furnish to the Noteholders promptly upon receipt
thereof from the Eligible Lender Trustee notice of any amendment of the
Administration Agreement pursuant to Section 8.5 of the Administration
Agreement.
SECTION 7.3 Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after
the Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Issuer may be required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this Indenture as
may be required from time to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA Section.
313(c)) such summaries of any
38
information, documents and reports required to be filed by the Issuer pursuant
to clauses (i) and (ii) of this Section 7.3(a) as may be required by rules and
regulations prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1 Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it on behalf of Noteholders and
any Swap Counterparty pursuant to the Administration Agreement as provided in
this Indenture. Except as otherwise expressly provided in this Indenture, if any
default occurs in the making of any payment or performance under any agreement
or instrument that is part of the Indenture Trust Estate, the Indenture Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim a
Default under this Indenture and any right to proceed thereafter as provided in
Article V.
SECTION 8.2 Trust Accounts. (a) On or prior to the Closing
Date, the Issuer shall cause the Administrator to establish and maintain, in the
name of the Indenture Trustee, for the benefit of the Noteholders and any Swap
Counterparty the Trust Accounts as provided in Section 2.3 of the Administration
Agreement.
(b) On or before the Business Day immediately preceding each
Distribution Date, all Available Funds with respect to the preceding Collection
Period will be deposited in the Collection Account as provided in Section 2.4 of
the Administration Agreement. On or before each Distribution Date, the Indenture
Trustee (or any other Paying Agent) shall make the required deposits and
distributions as provided in Sections 2.7 and 2.8 of the Administration
Agreement.
SECTION 8.3 General Provisions Regarding Accounts. (a) So long
as no Default shall have occurred and be continuing, all or a portion of the
funds in the Trust Accounts shall be invested in Eligible Investments and
reinvested by the Indenture Trustee upon Issuer Order, subject to the provisions
of Section 2.3(b) of the Administration Agreement. All income or other gain from
investments of moneys deposited in the Trust Accounts (except for the
Capitalized Interest Account, if any) shall be deposited by the Indenture
Trustee in the Collection Account, and any loss resulting from such investments
shall be charged to such Trust Account. All income or other gain from
investments of moneys deposited in the Capitalized Interest Account, if any,
shall be deposited by the Indenture Trustee in the Capitalized Interest Account,
and any loss resulting from such investments shall be charged to the Capitalized
Interest Account. The Issuer will not direct the Indenture Trustee to make any
investment of any funds
39
or to sell any investment held in any of the Trust Accounts unless the security
interest granted and perfected in such account will continue to be perfected in
such investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the Indenture
Trustee, the Issuer shall deliver to the Indenture Trustee an Opinion of
Counsel, acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in
any way be held liable for the selection of Eligible Investments or by reason of
any insufficiency in any of the Trust Accounts resulting from any loss on any
Eligible Investment included therein except for losses attributable to the
Indenture Trustee's failure to make payments on such Eligible Investments issued
by the Indenture Trustee, in its commercial capacity as principal obligor and
not as trustee, in accordance with their terms.
(c) If (i) the Issuer shall have failed to give investment
directions for any funds on deposit in the Trust Accounts to the Indenture
Trustee by 10:00 a.m. Eastern Time (or such other time as may be agreed by the
Issuer and Indenture Trustee) on any Business Day; or (ii) a Default shall have
occurred and be continuing with respect to the Notes but the Notes shall not
have been declared due and payable pursuant to Section 5.2, or, if such Notes
shall have been declared due and payable following an Event of Default, amounts
collected or receivable from the Indenture Trust Estate are being applied in
accordance with Section 5.5 as if there had not been such a declaration; then
the Indenture Trustee shall invest and reinvest funds in the Trust Accounts in
the Eligible Investments described in clause (d) of the definition thereof.
SECTION 8.4 Release of Indenture Trust Estate. (a) Subject to
the payment of its fees and expenses pursuant to Section 6.7, the Indenture
Trustee may, and when required by the provisions of this Indenture shall,
execute instruments to release property from the lien of this Indenture, or
convey the Indenture Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this Indenture.
No party relying upon an instrument executed by the Indenture Trustee as
provided in this Article VIII shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no
Notes Outstanding and all sums due the Indenture Trustee pursuant to Section 6.7
have been paid, subject to the interest therein of any Swap Counterparty,
release any remaining portion of the Indenture Trust Estate that secured the
Notes from the lien of this Indenture and release to the Issuer or any other
Person entitled thereto any funds then on deposit in the Trust Accounts. The
Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section 8.4(b) only upon receipt of an Issuer Request
accompanied by an Officers' Certificate of the Issuer, an Opinion of Counsel and
(if required by the TIA) Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(1) meeting the applicable requirements of Section
11.1.
(c) Each Noteholder, by the acceptance of a Note, acknowledges
that from time to time the Indenture Trustee shall release the lien of this
Indenture on any Trust Student Loan to be sold to (i) the Depositor in
accordance with Section 6 of the Sale Agreement, (ii) to the Servicer in
accordance with Section 3.5 of the Servicing Agreement, and (iii) to Xxxxxx Xxx
in accordance
40
with Section 6 of the Purchase Agreement, and each Noteholder, by the acceptance
of a Note, consents to any such release.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall
receive at least seven days' notice when requested by the Issuer to take any
action pursuant to Section 8.4(a), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require, except in connection
with any action contemplated by Section 8.4(c), as a condition to such action,
an Opinion of Counsel, in form and substance satisfactory to the Indenture
Trustee, stating the legal effect of any such action, outlining the steps
required to complete the same, and concluding that all conditions precedent to
the taking of such action have been complied with and such action will not
materially and adversely impair the security for the Notes or the rights of the
Noteholders or any Swap Counterparty in contravention of the provisions of this
Indenture; provided, however, that such Opinion of Counsel shall not be required
to express an opinion as to the fair value of the Indenture Trust Estate.
Counsel rendering any such opinion may rely, without independent investigation,
on the accuracy and validity of any certificate or other instrument delivered to
the Indenture Trustee in connection with any such action.
ARTICLE IX
Supplemental Indentures
SECTION 9.1 Supplemental Indentures Without Consent of
Noteholders. Without the consent of any Noteholders but with prior notice to the
Rating Agencies, the Issuer and the Indenture Trustee, when authorized by an
Issuer Order, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property
at any time subject to the lien of this Indenture, or better to assure, convey
and confirm unto the Indenture Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject to the lien of this
Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein and in
the Notes contained;
(iii) to add to the covenants of the Issuer, for the
benefit of the Noteholders and, any Swap Counterparty, as applicable, or to
surrender any right or power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be inconsistent with
any other provision herein or in any supplemental indenture or to make any other
provisions with respect to matters or questions
41
arising under this Indenture or in any supplemental indenture; provided that
such action shall not materially adversely affect the interests of the
Noteholders or any Swap Counterparty;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes and to
add to or change any of the provisions of this Indenture as shall be necessary
to facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification of
this Indenture under the TIA or under any similar Federal statute hereafter
enacted and to add to this Indenture such other provisions as may be expressly
required by the TIA.
The Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture and to make any further appropriate
agreements and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an
Issuer Order, may, also without the consent of any of the Noteholders but with
prior notice to any Swap Counterparty and the Rating Agencies, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture or of modifying in any manner the rights of the Noteholders
or any Swap Counterparty under this Indenture; 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 or any Swap Counterparty.
SECTION 9.2 Supplemental Indentures with Consent of
Noteholders. The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, also may, with prior notice to any Swap Counterparty and the Rating
Agencies and with the consent of the Noteholders of not less than a majority of
the Outstanding Amount of the Notes, by Act of such Noteholders delivered to the
Issuer and the Indenture Trustee, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Noteholders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Noteholder of each Outstanding Note affected thereby:
(i) change the date of payment of any installment of
principal of or interest on any Note, or reduce the principal amount thereof,
the interest rate thereon or the Redemption Price with respect thereto, change
the provisions of this Indenture relating to the application of collections on,
or the proceeds of the sale of, the Indenture Trust Estate to payment of
principal of or interest on the Notes, or change any place of payment where, or
the coin or currency in which, any Note or the interest thereon is payable
(other than pursuant to the terms and conditions of the Reset Rate Notes or
pursuant to the Reset Rate Note Procedures set forth in Appendix A-2 to this
Indenture) or impair the right to institute suit for the enforcement of the
provisions of this Indenture requiring the application of funds available
therefor, as provided in Article V, to the payment of any such amount due on the
Notes on or after the respective due dates thereof (or, in the case of
redemption, on or after the Redemption Date);
42
(ii) reduce the percentage of the Outstanding Amount of
the Notes, the consent of the Noteholders of which is required for any such
supplemental indenture, or the consent of the Noteholders of which is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of
the Notes required to direct the Indenture Trustee to direct the Issuer to sell
or liquidate the Indenture Trust Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to
increase any percentage specified herein or to provide that certain additional
provisions of this Indenture or the other Basic Documents cannot be modified or
waived without the consent of the Noteholder of each Outstanding Note affected
thereby;
(vi) modify any of the provisions of this Indenture in
such manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Distribution Date (including the
calculation of any of the individual components of such calculation) or to
affect the rights of the Noteholders to the benefit of any provisions for the
mandatory redemption of the Notes contained herein; or
(vii) permit the creation of any lien ranking prior to or
on a parity with the lien of this Indenture with respect to any part of the
Indenture Trust Estate or, except as otherwise permitted or contemplated herein,
terminate the lien of this Indenture on any property at any time subject hereto
or deprive any Noteholder of any Note of the security provided by the lien of
this Indenture.
It shall not be necessary for any Act of Noteholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Promptly after the execution by the Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this Section, the Indenture
Trustee shall mail to the Noteholders of the Notes to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 9.3 Execution of Supplemental Indentures. In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture, the Indenture Trustee shall be entitled to
receive, and subject to Sections 6.1 and 6.2, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Indenture Trustee may, but shall not be obligated
43
to, enter into any such supplemental indenture that affects the Indenture
Trustee's own rights, duties, liabilities or immunities under this Indenture or
otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to the Notes affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Issuer and the Noteholders shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every
amendment of this Indenture and every supplemental indenture executed pursuant
to this Article IX shall conform to the requirements of the Trust Indenture Act
as then in effect so long as this Indenture shall then be qualified under the
Trust Indenture Act.
SECTION 9.6 Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by the Indenture
Trustee shall, bear a notation in form approved by the Indenture Trustee as to
any matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X
Redemption of Notes
SECTION 10.1 Redemption. The Indenture Trustee shall, upon
receipt of written notice from the Servicer pursuant to Section 6.1(b) of the
Administration Agreement, give prompt written notice to the Noteholders of the
occurrence of such event. In the event that the assets of the Trust are sold
pursuant to Section 6.1(a) of the Administration Agreement, that portion of the
amounts on deposit in the Trust Accounts to be distributed to the Noteholders
shall be paid to the Noteholders as provided in Sections 2.7 and 2.8. If amounts
are to be paid to Noteholders pursuant to this Section 10.1, the notice of such
event from the Indenture Trustee to the Noteholders shall include notice of the
redemption of Notes by application of such amounts on the next Distribution Date
which is not sooner than 15 days after the date of such notice (the "Redemption
Date"), whereupon all such amounts shall be payable on the Redemption Date.
SECTION 10.2 Form of Redemption Notice. Notice of redemption
under Section 10.1 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, or by facsimile, mailed or transmitted on or prior to the
applicable Redemption Date to each Noteholder, as of the close of business on
the Record Date preceding the applicable Redemption Date, at such Noteholder's
address or facsimile number appearing in the Note Register.
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All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be surrendered for
payment of the Redemption Price (which shall be the office or agency of the
Issuer to be maintained as provided in Section 3.2).
Notice of redemption of the Notes shall be given by the
Indenture Trustee in the name and at the expense of the Issuer. Failure to give
notice of redemption, or any defect therein, to any Noteholder of any Note shall
not impair or affect the validity of the redemption of any other Note.
SECTION 10.3 Notes Payable on Redemption Date. The Notes or
portions thereof to be redeemed shall on the Redemption Date become due and
payable at the Redemption Price and (unless the Issuer shall default in the
payment of the Redemption Price) no interest shall accrue on the Redemption
Price for any period after the date to which accrued interest is calculated for
purposes of calculating the Redemption Price.
ARTICLE XI
Miscellaneous
SECTION 11.1 Compliance Certificates and Opinions, etc. (a)
Upon any application or request by the Issuer to the Indenture Trustee to take
any action under any provision of this Indenture, the Issuer shall furnish to
the Indenture Trustee and the Rating Agencies (i) an Officers' Certificate of
the Issuer stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with and (iii) (if required by
the TIA) an Independent Certificate from a firm of certified public accountants
meeting the applicable requirements of this Section, except that, in the case of
any such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this indenture shall include:
(i) a statement that each signatory of such certificate
or opinion has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
45
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other
property or securities with the Indenture Trustee that is to be made the basis
for the release of any property or securities subject to the lien of this
Indenture, the Issuer shall, in addition to any obligation imposed in Section
11.1(a) or elsewhere in this Indenture, furnish to the Indenture Trustee and the
Rating Agencies an Officers' Certificate of the Issuer certifying or stating the
opinion of each person signing such certificate as to the fair value (within 90
days of such deposit) to the Issuer of the Collateral or other property or
securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee and the Rating Agencies an Officers' Certificate of the Issuer
certifying or stating the opinion of any signer thereof as to the matters
described in clause (i) above, the Issuer shall also deliver to the Indenture
Trustee an Independent Certificate as to the same matters, if the fair value to
the Issuer of the securities to be so deposited and of all other such securities
made the basis of any such withdrawal or release since the commencement of the
then-current fiscal year of the Issuer, as set forth in the certificates
delivered pursuant to clause (i) above and this clause (ii), is 10% or more of
the Outstanding Amount of the Notes, but such a certificate need not be
furnished with respect to any securities so deposited, if the fair value thereof
to the Issuer as set forth in the related Officers' Certificate is less than
$25,000 or less than one percent of the Outstanding Amount of the Notes.
(iii) Other than any property released as contemplated by
clause (v) below, whenever any property or securities are to be released from
the lien of this Indenture, the Issuer shall also furnish to the Indenture
Trustee an Officers' Certificate of the Issuer certifying or stating the opinion
of each person signing such certificate as to the fair value (within 90 days of
such release) of the property or securities proposed to be released and stating
that in the opinion of such person the proposed release will not impair the
security under this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officers' Certificate of the Issuer certifying or stating
the opinion of any signer thereof as to the matters described in clause (iii)
above, the Issuer shall also furnish to the Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property, other than property as contemplated by
clause (v) below, or securities released from the lien of this Indenture since
the commencement of the then-current calendar year, as set forth in the
certificates required by clause (iii) above and this clause (iv), equals 10% or
more of the Outstanding Amount of the Notes, but such certificate need not be
furnished in the case of any release of property or securities if the fair value
thereof as set forth in the related Officers' Certificate is less than $25,000
or less than one percent of the then Outstanding Amount of the Notes.
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(v) Notwithstanding Section 2.9 or any other provision of
this Section, the Issuer may, without compliance with the requirements of the
other provisions of this Section, (A) collect, liquidate, sell or otherwise
dispose of Trust Student Loans as and to the extent permitted or required by the
Basic Documents, (B) make cash payments out of the Trust Accounts as and to the
extent permitted or required by the Basic Documents and (C) convey to the
Depositor, the Servicer or another eligible lender those specified Trust Student
Loans as and to the extent permitted or required by and in accordance with
Section 8.4(c) hereof and Section 6 of the Sale Agreement, Section 3.5 of the
Servicing Agreement or Section 3.11E of the Servicing Agreement, respectively,
so long as the Issuer shall deliver to the Indenture Trustee every six months,
commencing December 31, 2003, an Officers' Certificate of the Issuer stating
that all the dispositions of Collateral described in clauses (A), (B) or (C)
above that occurred during the immediately preceding six calendar months were in
the ordinary course of the Issuer's business and that the proceeds thereof were
applied in accordance with the Basic Documents.
SECTION 11.2 Form of Documents Delivered to Indenture Trustee.
In any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters, and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Servicer, the Depositor, the Issuer or the Administrator, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Depositor, the Issuer or the Administrator, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever in this Indenture, in connection with any application
or certificate or report to the Indenture Trustee, it is provided that the
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer's compliance with any term hereof, it
is intended that the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or report (as the case
may be), of the facts and opinions stated in such document shall in such case be
conditions precedent to the right of the Issuer to have such application granted
or to the sufficiency of such certificate or report. The foregoing shall not,
however, be construed to affect the Indenture Trustee's right to rely upon the
47
truth and accuracy of any statement or opinion contained in any such document as
provided in Article VI.
SECTION 11.3 Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except as
herein otherwise expressly provided such action shall become effective when such
instrument or instruments are delivered to the Indenture Trustee, and, where it
is hereby expressly required, to the Issuer. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by any Noteholder shall bind the Noteholder of
every Note issued upon registration of transfer thereof or in exchange therefor
or in lieu thereof, in respect of anything done, omitted or suffered to be done
by the Indenture Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and
Rating Agencies. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture shall be in writing and if such request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders is to be made upon,
given or furnished to or filed with:
(a) The Indenture Trustee by any Noteholder, the Servicer, the
Administrator or by the Issuer shall be sufficient for every purpose hereunder
if made, given, furnished or filed in writing to or with the Indenture Trustee
at its Corporate Trust Office with a copy to: The Bank of New York, 0 Xxxxx
XxXxxxx Xx., Xxxxx 0000, Xxxxxxx, Xxxxxxxx, 00000, Attn: Corporate Trust -
Structured Finance.
(b) The Issuer by the Indenture Trustee or by any Noteholder shall
be sufficient for every purpose hereunder if in writing and mailed, first-class,
postage prepaid, to the Issuer addressed to: SLM Student Loan Trust 2003-11, in
care of Chase Manhattan Bank USA, National Association, Christiana Center/OPS4,
000 Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Department; with copies to JPMorgan Chase Bank, 000 Xxxx 00xx Xxxxxx 00xx Xx.,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Structured Finance Services; and the
Administrator, 00000 Xxxxxx Xxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: ABS
Trust Administration, or any other address previously furnished in writing to
the Indenture Trustee by
48
the Issuer or the Administrator. The Issuer shall promptly transmit any notice
received by it from the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the
Issuer, the Indenture Trustee or the Eligible Lender Trustee shall be in
writing, personally delivered or mailed by certified mail, return receipt
requested, to (i) in the case of Moody's, at the following address: ABS
Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (ii) in the
case of Standard & Poor's, at the following address: 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000, Attention: Asset Backed Surveillance Department, 32nd
Floor, and (iii) in the case of Fitch, at the following address: Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Municipal Structured Finance
Group; or as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
Notices to any Swap Counterparty will be sent to the addresses
set forth in the related Swap Agreement or the Interest Rate Cap Agreement,
respectively or such other addresses as may be designated by written notice to
the parties to this Indenture.
SECTION 11.5 Notices to Noteholders; Waiver. Where this
Indenture provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to Noteholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance constitute a
Default.
SECTION 11.6 Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Noteholder providing
for a method of payment, or notice by the Indenture Trustee or any Paying Agent
to such Noteholder, that is different from the methods provided for
49
in this Indenture for such payments or notices. The Issuer will furnish to the
Indenture Trustee a copy of each such agreement and the Indenture Trustee will
cause payments to be made and notices to be given in accordance with such
agreements.
SECTION 11.7 Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
that is required to be included in this Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
herein unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns. All covenants and
agreements in this Indenture and the Notes by the Issuer shall bind its
successor and assigns, whether so expressed or not. All agreements of the
Indenture Trustee in this Indenture shall bind the successors, co-trustees and
agents (excluding any legal representatives or accountants) of the Indenture
Trustee.
SECTION 11.10 Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 11.11 Benefits of Indenture. (a) Except as set forth
in paragraphs (b) and (c) below, nothing in this Indenture or in the Notes,
express or implied shall give to any person, other than the parties hereto and
their successors hereunder, the Noteholders, any other party secured hereunder,
and any other Person with an ownership interest in any part of the Indenture
Trust Estate, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
(b) The parties to this Indenture acknowledge and agree that each
Swap Counterparty is an intended third party beneficiary of this Indenture to
the extent of its rights hereunder and under the related Swap Agreement entered
into by the Issuer from time to time and shall be entitled to enforce such
rights.
(c) The parties to this Indenture acknowledge and agree that SLM
Corporation, and any permitted transferee, if applicable, is an intended third
party beneficiary of this Indenture to the extent of its rights with respect to
the Call Option as set forth in Section 7 of Appendix A-2 hereto and shall be
entitled to enforce such rights.
SECTION 11.12 Legal Holidays. In any case where the date on
which any payment is due shall not be a Business Day, then (notwithstanding any
other provision of the Notes or this Indenture) payment need not be made on such
date, but may be made on the next
50
succeeding Business Day with the same force and effect as if made on the date on
which nominally due, and no interest shall accrue for the period from and after
any such nominal date.
SECTION 11.13 Governing Law. THIS INDENTURE SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts. This Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is
subject to recording in any appropriate public recording offices, such recording
is to be effected by the Issuer and at its expense accompanied by an Opinion of
Counsel (which may be counsel to the Indenture Trustee or any other counsel
reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Noteholders or any other
Person secured hereunder or for the enforcement of any right or remedy granted
to the Indenture Trustee under this Indenture.
SECTION 11.16 Trust Obligations. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer, the
Depositor, the Administrator, the Servicer, the Eligible Lender Trustee or the
Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Eligible Lender Trustee in its individual capacity,
(ii) any owner of a beneficial interest in the Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of the Indenture
Trustee or the Eligible Lender Trustee in its individual capacity, any holder or
owner of a beneficial interest in the Issuer, the Eligible Lender Trustee or the
Indenture Trustee or of any successor or assign thereof in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Eligible Lender Trustee have no
such obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all purposes of
this Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Eligible Lender Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Article VI, VII and VIII of the Trust
Agreement.
SECTION 11.17 No Petition. The Indenture Trustee, by entering
into this Indenture, and each Noteholder, by accepting a Note, hereby covenant
and agree that they shall not at any time institute against the Depositor or the
Issuer, or join in any institution against the Depositor or the Issuer 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 Indenture or any of the other Basic Documents. The foregoing shall
not limit the rights of the Indenture
51
Trustee to file any claim in, or otherwise take any action with respect to, any
insolvency proceeding that was instituted against the Issuer by any Person other
than the Indenture Trustee.
SECTION 11.18 Inspection. The Issuer agrees that, on
reasonable prior notice, it shall permit any representative of the Indenture
Trustee, during the Issuer's normal business hours, to examine all the books of
account, records, reports, and other papers of the Issuer, to make copies and
extracts therefrom, to cause such books to be audited by Independent certified
public accountants, and to discuss the Issuer's affairs, finances and accounts
with the Issuer's officers, employees, and Independent certified public
accountants, all at such reasonable times and as often as may be reasonably
requested. The Indenture Trustee shall and shall cause its representatives to
hold in confidence all such information obtained from such examination or
inspection except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing) and except to
the extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder.
52
IN WITNESS WHEREOF, the Issuer, the Eligible Lender Trustee
and the Indenture Trustee have caused this Indenture to be duly executed by
their respective officers, thereunto duly authorized and duly attested, all as
of the day and year first above written.
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: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Vice President
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
THE BANK OF NEW YORK,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ XXXX X. XXXXXXX
Name: Xxxx X. Xxxxxxx
Title: Agent
53
ACCEPTED AND AGREED TO WITH RESPECT TO THE TRANSFER OF ALL RIGHT, TITLE AND
INTEREST IN AND TO THE CALL OPTION CONTAINED IN, AND SUBJECT TO THE TERMS AND
CONDITIONS SET FORTH IN, SECTION 7 OF APPENDIX A-2 TO THIS INDENTURE
SLM FUNDING LLC
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Vice President
SLM CORPORATION
By: /s/ J. XXXXX XXXXXX
Name: J. Xxxxx Xxxxxx
Title: Authorized Agent
54
APPENDIX A-1
DEFINITIONS AND USAGE
SERIES 2003-11
USAGE
The following rules of construction and usage shall be applicable to
any instrument that is governed by this appendix (this "Appendix"):
(a) All terms defined in this Appendix shall have the defined
meanings when used in any instrument governed hereby and in any certificate or
other document made or delivered pursuant thereto unless otherwise defined
therein.
(b) As used herein, in any instrument governed hereby and in any
certificate or other document made or delivered pursuant thereto, accounting
terms not defined in this Appendix or in any such instrument, certificate or
other document, and accounting terms partly defined in this Appendix or in any
such instrument, certificate or other document, to the extent not defined, shall
have the respective meanings given to them under generally accepted accounting
principles as in effect on the date of such instrument. To the extent that the
definitions of accounting terms in this Appendix or in any such instrument,
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Appendix or in any such instrument, certificate or other document shall
control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in an instrument refer to such instrument as a whole and not to
any particular provision or subdivision thereof; references in an instrument to
"Article," "Section" or another subdivision or to an attachment are, unless the
context otherwise requires, to an article, section or subdivision of or an
attachment to such instrument; and the term "including" means "including without
limitation."
(d) The definitions contained in this Appendix are equally
applicable to both the singular and plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to
below or in any agreement or instrument that is governed by this Appendix means
such agreement or instrument or statute as from time to time amended, modified
or supplemented, including (in the case of agreements or instruments) by
assignment, assumption, waiver or consent and (in the case of statutes) by
succession of comparable successor statutes and includes (in the case of
agreements or instruments) references to all attachments thereto and instruments
incorporated therein. References to a Person are also to its permitted
successors and assigns.
Appendix A-1-1
"30/360" means that interest is calculated on the basis of a 360-day
year consisting of twelve 30-day months.
"91-day Treasury Xxxx Rate" means, for any relevant Interest Rate
Determination Date, prior to each related Interest Rate Change Date, the rate
equal to the weighted average per annum discount rate (expressed as a bond
equivalent yield and applied on a daily basis) for direct obligations of the
United States with a maturity of thirteen weeks ("91-day Treasury Bills") sold
at the applicable 91-day Treasury Xxxx auction, as published in H.15(519) or
otherwise or as reported by the U.S. Department of the Treasury. In the event
that the results of the auctions of 91-day Treasury Bills cease to be published
or reported as provided above, or that no 91-day Treasury Xxxx auction is held
in a particular week, then the 91-day Treasury Xxxx Rate in effect as a result
of the last such publication or report will remain in effect until such time, if
any, as the results of auctions of 91-day Treasury Bills will again be so
published or reported or such auction is held, as the case may be. The 91-day
Treasury Xxxx Rate will be subject to a Lock-In Period of six Business Days.
"Accrual Period" means, with respect to a Distribution Date and (i)
each class of Notes bearing a floating rate of interest (including, without
limitation, the Floating Rate Notes and the Class A-6 Notes during their
respective initial Reset Periods), the period from and including the immediately
preceding Distribution Date for such class of Notes to but excluding the
then-current Distribution Date, or in the case of the initial such period for
the Floating Rate Notes and the Class A-6 Notes during their respective initial
Reset Periods, the period from and including the Closing Date to and including
March 14, 2004; provided that if more than one Interest Rate Change Date occurs
for any class of Reset Rate Notes bearing a floating rate of interest within any
given Accrual Period, the related rate of interest for the entire Accrual Period
shall be as specified in the relevant Remarketing Terms Notice; and (ii) a class
of Reset Rate Notes bearing a fixed rate of interest (including, without
limitation, the Class A-5 Notes and the Class A-7 Notes during their respective
initial Reset Periods), the period from and including the 15th day of the month
of the immediately preceding Distribution Date, to and including the 14th day of
the month of the then-current Distribution Date for that class; provided,
however, that the initial Accrual Period for the Class A-5 Notes and the Class
A-7 Notes during their respective initial such periods will begin on the Closing
Date and end on and including March 14, 2004.
"Accumulation Account" means each account designated as such,
established and maintained pursuant to Section 2.3(j) of the Administration
Agreement.
"Act" means the Securities Act of 1933, as amended.
"Actual/360" means that interest is calculated on the basis of the
actual number of days elapsed in a year of 360 days.
"Actual/365 (fixed)" means that interest is calculated on the basis of
the actual number of days elapsed in a year of 365 days, regardless of whether
accrual or payment occurs in a leap year.
"Actual/Actual (accrual basis)" means that interest is calculated on
the basis of the actual number of days elapsed in a year of 365 days, or 366
days for every day in a leap year.
Appendix A-1-2
"Actual/Actual (payment basis)" means that interest is calculated on
the basis of the actual number of days elapsed in a year of 365 days if the
interest period ends in a non-leap year, or 366 days if the interest period ends
in a leap year, as the case may be.
"Adjusted Pool Balance" means, for any Distribution Date, (a) if the
Pool Balance as of the last day of the related Collection Period is greater than
40% of the Initial Pool Balance, the sum of that Pool Balance and the Specified
Reserve Account Balance for that Distribution Date or (b) if the Pool Balance as
of the last day of the related Collection Period is less than or equal to 40% of
the Initial Pool Balance, that Pool Balance.
"Administration Agreement" means the Master Administration Agreement
dated as of May 1, 1997, between Xxxxxx Mae and the Depositor and the
Supplement, and as such agreement may be further amended or supplemented from
time to time.
"Administration Fee" has the meaning specified in Section 2.14 of the
Administration Agreement.
"Administrator" means Xxxxxx Xxx, in its capacity as administrator of
the Trust in accordance with the Administration Agreement.
"Administrator Default" has the meaning specified in Section 5.1 of the
Administration Agreement.
"Administrator's Certificate" means an Officers' Certificate of the
Administrator delivered pursuant to Section 3.1(c) of the Administration
Agreement.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"All Hold Rate" means, for a class of Reset Rate Notes, the applicable
Index plus or minus the related Spread (with respect to each class of Reset Rate
Notes in floating rate mode) or the applicable fixed rate, which may be
expressed as the fixed rate pricing benchmark plus or minus a spread (with
respect to each class of Reset Rate Notes in fixed rate mode), that the
Remarketing Agents, in consultation with the Administrator, determine will be
effective, unless the related Call Option is exercised, in the event that 100%
of the holders of that class of Reset Rate Notes choose to hold their Notes for
the upcoming Reset Period. The All Hold Rate shall be a rate that the
Remarketing Agents, in consultation with the Administrator, and in their good
faith determination, believe would result in the remarketing of the entire
applicable class of Reset Rate Notes at a price equal to 100% of the Outstanding
Amount thereof.
"Authorized Officer" means (i) with respect to the Trust, any officer
of the Eligible Lender Trustee who is authorized to act for the Eligible Lender
Trustee in matters relating to the Trust pursuant to the Basic Documents and who
is identified on the list of Authorized Officers delivered by the Eligible
Lender Trustee to the Indenture Trustee on the Closing Date (as such
Appendix A-1-3
list may be modified or supplemented from time to time thereafter), (ii) with
respect to the Administrator, any officer of the Administrator or any of its
Affiliates who is authorized to act for the Administrator in matters relating to
itself or to the Trust and to be acted upon by the Administrator pursuant to the
Basic Documents and who is identified on the list of Authorized Officers
delivered by the Administrator to the Indenture Trustee on the Closing Date (as
such list may be modified or supplemented from time to time thereafter), (iii)
with respect to the Depositor, any officer of the Depositor or any of its
Affiliates who is authorized to act for the Depositor in matters relating to or
to be acted upon by the Depositor pursuant to the Basic Documents and who is
identified on the list of Authorized Officers delivered by the Depositor to the
Indenture Trustee on the Closing Date (as such list may be modified or
supplemented from time to time thereafter) and (iv) with respect to the
Servicer, any officer of the Servicer who is authorized to act for the Servicer
in matters relating to or to be acted upon by the Servicer pursuant to the Basic
Documents and who is identified on the list of Authorized Officers delivered by
the Servicer to the Indenture Trustee on the Closing Date (as such list may be
modified or supplemented from time to time thereafter).
"Available Funds" means, as to a Distribution Date or any related
Monthly Servicing Payment Date, the sum of the following amounts received with
respect to the related Collection Period or, in the case of a Monthly Servicing
Payment Date, the applicable portion of these amounts:
(a) all collections on the Trust Student Loans, including
any Guarantee Payments received on the Trust Student Loans, but net of:
(1) any collections in respect of principal on
the Trust Student Loans applied by the Trust to repurchase
guaranteed loans from the Guarantors under the Guarantee
Agreements, and
(2) amounts required by the Higher Education Act
to be paid to the Department or to be repaid to borrowers,
whether or not in the form of a principal reduction of the
applicable Trust Student Loan, on the Trust Student Loans for
that Collection Period including Consolidation Loan rebate
fees;
(b) any Interest Subsidy Payments and Special Allowance
Payments with respect to the Trust Student Loans during that Collection Period;
(c) all Liquidation Proceeds from any Trust Student Loans
which became Liquidated Student Loans during that Collection Period in
accordance with the Servicer's customary servicing procedures, net of expenses
incurred by the Servicer related to their liquidation and any amounts required
by law to be remitted to the borrowers on the Liquidated Student Loans, and all
Recoveries on Liquidated Student Loans which were written off in prior
Collection Periods or during that Collection Period;
(d) the aggregate Purchase Amounts received during that
Collection Period for those Trust Student Loans repurchased by the Depositor or
purchased by the Servicer or for Trust Student Loans sold to another eligible
lender pursuant to Section 3.11E of the Servicing Agreement;
Appendix A-1-4
(e) the aggregate Purchase Amounts received during that
Collection Period for those Trust Student Loans purchased by Xxxxxx Mae;
(f) the aggregate amounts, if any, received from Xxxxxx
Xxx, the Depositor or the Servicer, as the case may be, as reimbursement of
non-guaranteed interest amounts, or lost Interest Subsidy Payments and Special
Allowance Payments, on the Trust Student Loans pursuant to the Sale Agreement or
Section 3.5 of the Servicing Agreement, respectively;
(g) amounts received by the Trust pursuant to Sections
3.1 and 3.12 of the Servicing Agreement during that Collection Period as to
yield or principal adjustments;
(h) any interest remitted by the Administrator to the
Collection Account prior to such Distribution Date or Monthly Servicing Payment
Date;
(i) Investment Earnings for that Distribution Date earned
on amounts on deposit in each Trust Account;
(j) amounts transferred from the Remarketing Fee Account
in excess of the sum of the Reset Period Target Amounts for that Distribution
Date;
(k) payments received under the Interest Rate Cap
Agreement;
(l) the Investment Premium Purchase Account Release
Amount transferred from the Investment Premium Purchase Account on that
Distribution Date;
(m) all amounts on deposit in the Investment Reserve
Account not transferred to an Accumulation Account to offset realized losses on
Eligible Investments actually incurred by the Trust as of that Distribution
Date;
(n) all amounts received under any Interest Rate Swap
Agreement for that Distribution Date; and
(o) amounts transferred from the Reserve Account in
excess of the Specified Reserve Account Balance for that Distribution Date;
provided that if on any Distribution Date there would not be sufficient funds,
after application of Available Funds, as defined above, and application of
amounts available from the Capitalized Interest Account and the Reserve Account,
in that order, to pay certain of the items specified in clauses (a) through (e)
of Section 2.8 of the Administration Agreement (but excluding clause (e), and
including clauses (f) and (g) thereof, in the event that a condition exists as
described in either clause (i) or (ii) of the last paragraph of Section 2.8 of
the Administration Agreement), as set forth in Sections 2.9 and 2.10(a) of the
Administration Agreement, relating to such allocations and distributions, then
Available Funds for that Distribution Date will include, in addition to the
Available Funds as defined above, amounts on deposit in the Collection Account,
or amounts held by the Administrator, or which the Administrator reasonably
estimates to be held by the Administrator, for deposit into the Collection
Account which would have constituted Available Funds for the Distribution Date
succeeding that Distribution Date, up to the amount necessary to
Appendix A-1-5
pay such items, and the Available Funds for the succeeding Distribution Date
will be adjusted accordingly.
"Basic Documents" means the Trust Agreement, the Indenture, the
Servicing Agreement, the Administration Agreement, the Sale Agreement, the
Purchase Agreement, the Guarantee Agreements, the Note Depository Agreement, any
Remarketing Agreement, the Interest Rate Cap Agreement, any Interest Rate Swap
Agreements and other documents and certificates delivered in connection with any
such documents.
"Benefit Plan" has the meaning specified in Exhibit C to the Trust
Agreement.
"Xxxx of Sale" has the meaning specified in the Purchase Agreement or
the Sale Agreement, as applicable.
"Book-Entry Note" means a beneficial interest in the Notes, ownership
and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 2.10 of the Indenture.
"Business Day" means (i) with respect to calculating LIBOR of a
specified maturity, any day on which banks in New York, New York and London,
England are open for the transaction of international business; and (ii) for all
other purposes, any day other than a Saturday, a Sunday or a day on which
banking institutions or trust companies in New York, New York or Wilmington,
Delaware are authorized or obligated by law, regulation or executive order to
remain closed.
"Call Option" means, the option assigned by the Depositor to SLM
Corporation which may be further assigned by SLM Corporation to one of its
subsidiaries as a permitted transferee (provided, that no such subsidiary shall
possess the Call Option if it at any time owned an interest in any of the Trust
Student Loans) to purchase 100% of a class of Reset Rate Notes in its entirety
as of its related Reset Date, exercisable at a price equal 100% of the
Outstanding Amount of such class, less all amounts distributed to the related
Reset Rate Noteholders as a payment of principal in respect of the related
Distribution Date, plus any accrued and unpaid interest not paid by the Trust in
respect of the related Distribution Date, and pursuant to the terms and
conditions set forth in the Reset Rate Note Procedures.
"Call Option Notice" means a written notice from the holder of the Call
Option or the Administrator, as applicable, stating its desire to exercise the
Call Option on the related Reset Date, delivered to each Clearing Agency, the
Indenture Trustee, the Remarketing Agents, the Rating Agencies and, if the
related class of Reset Rate Notes is then listed on the Luxembourg Stock
Exchange, the Administrator will forward a copy to the Luxembourg Listing Agent
(the contents of which are to be published in a leading newspaper having general
circulation in Luxembourg).
"Call Rate" means, for a class of Reset Rate Notes for which a Call
Option has been exercised, the rate of interest that is either (1) if that class
did not have at least one related Interest Rate Swap Agreement in effect during
the previous Reset Period, the floating rate applicable for the most recent
Reset Period during which the Failed Remarketing Rate was not in effect; or (2)
if that class had one or more related Interest Rate Swap Agreements in effect
during
Appendix A-1-6
the previous Reset Period, the weighted average of the floating rates of
interest that were due to the related Interest Rate Swap Counterparties from the
Trust during the previous Reset Period. The Call Rate will continue to apply for
each Reset Period while the holder of the Call Option retains that class of
Reset Rate Notes.
"Capitalized Interest Account" means the account designated as such,
established and maintained pursuant to Section 2.3(h) of the Administration
Agreement.
"Capitalized Interest Account Initial Deposit" means $14,250,000.
"Carryover Servicing Fee" has the meaning specified in Attachment A to
the Servicing Agreement.
"Class A Note" means a Class A-1 Note, a Class A-2 Note, a Class A-3
Note, a Class A-4 Note, a Class A-5 Note, a Class A-6 Note or a Class A-7 Note.
"Class A Note Interest Shortfall" means, for any Distribution Date, the
excess of (x) the Class A Noteholders' Interest Distribution Amount on the
preceding Distribution Date, over (y) the amount of interest actually
distributed to the Class A Noteholders on the preceding Distribution Date, plus
(2) interest on the amount of that excess, to the extent permitted by law, at
the weighted average interest rate on all of the Class A Notes from the
preceding Distribution Date to the current Distribution Date.
"Class A Note Principal Shortfall" means, as of the close of any
Distribution Date, the excess of (i) the Class A Noteholders' Principal
Distribution Amount on that Distribution Date, over (ii) the amount of principal
actually distributed to the Class A Noteholders or deposited into any
Accumulation Account on such Distribution Date.
"Class A Noteholder" means the Person in whose name a Class A Note is
registered in the Note Register.
"Class A Noteholders' Distribution Amount" means, for any Distribution
Date, the sum of the Class A Noteholders' Interest Distribution Amount and the
Class A Noteholders' Principal Distribution Amount for that Distribution Date.
"Class A Noteholders' Interest Distribution Amount" means, for any
Distribution Date, the sum of: (1) the amount of interest accrued at the Class
A-1 Rate, the Class A-2 Rate, the Class A-3 Rate, the Class A-4 Rate, the Class
A-5 Rate, the Class A-6 Rate or the Class A-7 Rate, as applicable, for the
related Accrual Period on the Outstanding Amount of all classes of Class A Notes
on the immediately preceding Distribution Date(s) after giving effect to all
principal distributions to Class A Noteholders on that preceding Distribution
Date or, in the case of the first Distribution Date, on the Closing Date, and
(2) the Class A Note Interest Shortfall for that Distribution Date.
"Class A Noteholders' Principal Distribution Amount" means, for any
Distribution Date, the Principal Distribution Amount times the Class A
Percentage for that Distribution Date, plus any Class A Note Principal Shortfall
as of the close of business on the preceding Distribution Date; provided that
the Class A Noteholders' Principal Distribution Amount will not exceed the
Appendix A-1-7
Outstanding Amount of the Class A Notes (less all amounts, other than Investment
Earnings, on deposit in any related Accumulation Accounts). In addition, on the
Class A-1 Maturity Date, the Class A-2 Maturity Date, the Class A-3 Maturity
Date, the Class A-4 Maturity Date, the Class A-5 Maturity Date, the Class A-6
Maturity Date or the Class A-7 Maturity Date, as applicable, the principal
required to be distributed to the related Class A Noteholders will include the
amount required to reduce the Outstanding Amount of that class to zero.
"Class A Notes" means the Floating Rate Class A Notes and the Reset
Rate Notes.
"Class A Percentage" means 100% minus the Class B Percentage.
"Class A-1 Maturity Date" means the September 2009 Distribution Date.
"Class A-2 Maturity Date" means the March 2013 Distribution Date.
"Class A-3 Maturity Date" means the March 2016 Distribution Date.
"Class A-4 Maturity Date" means the June 2020 Distribution Date.
"Class A-5 Maturity Date" means the December 2022 Distribution Date.
"Class A-6 Maturity Date" means the December 2025 Distribution Date.
"Class A-7 Maturity Date" means the December 2038 Distribution Date.
"Class A-1 Noteholder" means a Person in whose name a Class A-1 Note is
registered in the Note Register.
"Class A-2 Noteholder" means a Person in whose name a Class A-2 Note is
registered in the Note Register.
"Class A-3 Noteholder" means a Person in whose name a Class A-3 Note is
registered in the Note Register.
"Class A-4 Noteholder" means a Person in whose name a Class A-4 Note is
registered in the Note Register.
"Class A-5 Noteholder" means a Person in whose name a Class A-5 Note is
registered in the Note Register.
"Class A-6 Noteholder" means a Person in whose name a Class A-6 Note is
registered in the Note Register.
"Class A-7 Noteholder" means a Person in whose name a Class A-7 Note is
registered in the Note Register.
"Class A-1 Notes" means the $189,000,000 Floating Rate Class A-1
Student Loan-Backed Notes issued by the Trust pursuant to the Indenture,
substantially in the form of Exhibit A-1 thereto.
Appendix A-1-8
"Class A-2 Notes" means the $263,000,000 Floating Rate Class A-2
Student Loan-Backed Notes issued by the Trust pursuant to the Indenture,
substantially in the form of Exhibit A-2 thereto.
"Class A-3 Notes" means the $255,000,000 Floating Rate Class A-3
Student Loan-Backed Notes issued by the Trust pursuant to the Indenture,
substantially in the form of Exhibit A-3 thereto.
"Class A-4 Notes" means the $412,000,000 Floating Rate Class A-4
Student Loan-Backed Notes issued by the Trust pursuant to the Indenture,
substantially in the form of Exhibit A-4 thereto.
"Class A-5 Notes" means the $270,641,000 Reset Rate Class A-5 Student
Loan-Backed Notes issued by the Trust pursuant to the Indenture, substantially
in the form of Exhibit A-5 thereto.
"Class A-6 Notes" means the $275,000,000 Reset Rate Class A-6 Student
Loan-Backed Notes issued by the Trust pursuant to the Indenture, substantially
in the form of Exhibit A-6 thereto.
"Class A-7 Notes" means the $300,000,000 Reset Rate Class A-7 Student
Loan-Backed Notes issued by the Trust pursuant to the Indenture, substantially
in the form of Exhibit A-7 thereto.
"Class A-1 Rate" means, for any Accrual Period after the initial
Accrual Period, Three-Month LIBOR as determined on the related LIBOR
Determination Date, plus 0.00%, based on an Actual/360 accrual method. For the
initial Accrual Period, the Class A-1 Rate shall mean the Initial Accrual Rate
plus 0.00%, based on an Actual/360 accrual method.
"Class A-2 Rate" means, for any Accrual Period after the initial
Accrual Period, Three-Month LIBOR as determined on the related LIBOR
Determination Date, plus 0.05%, based on an Actual/360 accrual method. For the
initial Accrual Period, the Class A-2 Rate shall mean the Initial Accrual Rate
plus 0.05%, based on an Actual/360 accrual method.
"Class A-3 Rate" means, for any Accrual Period after the initial
Accrual Period, Three-Month LIBOR as determined on the related LIBOR
Determination Date, plus 0.12%, based on an Actual/360 accrual method. For the
initial Accrual Period, the Class A-3 Rate shall mean the Initial Accrual Rate
plus 0.12%, based on an Actual/360 accrual method.
"Class A-4 Rate" means, for any Accrual Period after the initial
Accrual Period, Three-Month LIBOR as determined on the related LIBOR
Determination Date, plus 0.19%, based on an Actual/360 accrual method. For the
initial Accrual Period, the Class A-4 Rate shall mean the Initial Accrual Rate
plus 0.19%, based on an Actual/360 accrual method.
"Class A-5 Rate" means, for any Accrual Period after the initial
Accrual Period until and including the Initial Reset Date for the Class A-5
Notes, 2.99% based on 30/360 accrual method with the initial Accrual Period
consisting of 135 days. The Class A-5 Rate may be changed on each related Reset
Date to the interest rate and Day Count Basis that will be set forth in the
Appendix A-1-9
notice required to be delivered by the Administrator and/or the Remarketing
Agents on each related Remarketing Terms Determination Date and Spread
Determination Date, as applicable, pursuant to the procedures set forth in the
Reset Rate Note Procedures.
"Class A-6 Rate" means, for any Accrual Period after the initial
Accrual Period, Three-Month LIBOR, as determined on the related LIBOR
Determination Date, plus 0.29% based on an Actual/360 accrual method. For the
initial Accrual Period, the Class A-6 Rate shall mean the Initial Accrual Rate
plus 0.29%, based on an Actual/360 accrual method with the initial Accrual
Period consisting of 137 days. The Class A-6 Rate may be changed on each related
Reset Date to the interest rate and Day Count Basis that will be set forth in
the notice required to be delivered by the Administrator and/or the Remarketing
Agents on each related Remarketing Terms Determination Date and Spread
Determination Date, as applicable, pursuant to the procedures set forth in the
Reset Rate Note Procedures.
"Class A-7 Rate" means, for any Accrual Period after the initial
Accrual Period until and including the Initial Reset Date for the Class A-7
Notes, 3.80% based on 30/360 accrual method with the initial Accrual Period
consisting of 135 days. The Class A-7 Rate may be changed on each related Reset
Date to the interest rate and Day Count Basis that will be set forth in the
notice required to be delivered by the Administrator and/or the Remarketing
Agents on each related Remarketing Terms Determination Date and Spread
Determination Date, as applicable, pursuant to the procedures set forth in the
Reset Rate Note Procedures.
"Class B Maturity Date" means the December 2038 Distribution Date.
"Class B Note Interest Shortfall" means, for any Distribution Date, (1)
the excess of (x) the Class B Noteholders' Interest Distribution Amount on the
preceding Distribution Date, over (y) the amount of interest actually
distributed to the Class B Noteholders on that preceding Distribution Date, plus
(2) interest on the amount of that excess, to the extent permitted by law, at
the Class B Rate from that preceding Distribution Date to the current
Distribution Date.
"Class B Note Principal Shortfall" means, as of the close of any
Distribution Date, the excess of (i) the Class B Noteholders' Principal
Distribution Amount on that Distribution Date over (ii) the amount of principal
actually distributed to the Class B Noteholders on that Distribution Date.
"Class B Noteholder" means the Person in whose name a Class B Note is
registered in the Note Register.
"Class B Noteholders' Distribution Amount" means, for any Distribution
Date, the sum of the Class B Noteholders' Interest Distribution Amount and the
Class B Noteholders' Principal Distribution Amount for that Distribution Date.
"Class B Noteholders' Interest Distribution Amount" means, for any
Distribution Date, the sum of (1) the amount of interest accrued at the Class B
Rate for the related Accrual Period on the Outstanding Amount of the Class B
Notes on the immediately preceding Distribution Date (or, in the case of the
first Distribution Date, the Closing Date), after giving effect to all principal
distributions to Class B Noteholders on that preceding Distribution Date, and
(2) the Class B Note Interest Shortfall for that Distribution Date.
Appendix A-1-10
"Class B Noteholders' Principal Distribution Amount" means, for any
Distribution Date, the Principal Distribution Amount times the Class B
Percentage for that Distribution Date, plus any Class B Note Principal Shortfall
as of the close of business on the preceding Distribution Date; provided that
the Class B Noteholders' Principal Distribution Amount will not exceed the
Outstanding Amount of the Class B Notes. In addition, on the Class B Maturity
Date, the principal required to be distributed to the Class B Noteholders will
include the amount required to reduce the Outstanding Amount of the Class B
Notes to zero.
"Class B Notes" means the $60,763,000 Floating Rate Class B Student
Loan-Backed Notes issued by the Trust pursuant to the Indenture, substantially
in the form of Exhibit A-8 thereto.
"Class B Percentage" with respect to any Distribution Date, means (1)
prior to the Stepdown Date or with respect to any Distribution Date on which a
Trigger Event is in effect, zero; and (2) on and after the Stepdown Date and
provided that no Trigger Event is in effect, a fraction expressed as a
percentage, the numerator of which is the aggregate principal balance of the
Class B Notes immediately prior to that Distribution Date and the denominator of
which is Outstanding Amount of the Notes, less all amounts (other than
Investment Earnings) on deposit in any Accumulation Account, immediately prior
to that Distribution Date.
"Class B Rate" means, for any Accrual Period after the initial Accrual
Date, Three-Month LIBOR as determined on the related LIBOR Determination Date,
plus 0.65% based on an Actual/360 accrual method. For the initial Accrual
Period, the Class B Rate shall mean the Initial Accrual Rate plus 0.65%, based
on an Actual/360 accrual method.
"Clearing Agency" means DTC, Euroclear or Clearstream, as applicable,
or another organization registered as a "clearing agency" pursuant to applicable
law. The initial Clearing Agency for the Notes shall be DTC and the initial
nominee for such Clearing Agency shall be Cede & Co.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Clearstream" means Clearstream Banking, societe anonyme, Luxembourg.
"Closing Date" means October 30, 2003.
"CMT Rate" means, for any relevant Interest Rate Determination Date
prior to each related Interest Rate Change Date, the rate displayed on the
applicable Designated CMT Moneyline Telerate Page shown below by 3:00 p.m., New
York City time, on that Interest Rate Determination Date under the caption ". .
.. Treasury Constant Maturities . . . Federal Reserve Board Release H.15 . . .
Mondays Approximately 3:45 p.m.," under the column for: (i) if the Designated
CMT Moneyline Telerate Page is 7051, the rate on that Interest Rate
Determination Date; or (ii) if the Designated CMT Moneyline Telerate Page is
7052, the average for the week, the month or the quarter, as specified on the
Remarketing Terms Determination Date, ended immediately before the week in which
the related Interest Rate Determination Date occurs. The following procedures
will apply if the CMT Rate cannot be determined as described above: (i) if
Appendix A-1-11
the rate described above is not displayed on the relevant page by 3:00 p.m., New
York City time on that Interest Rate Determination Date, unless the calculation
is made earlier and the rate is available from that source at that time on that
Interest Rate Determination Date, then the CMT Rate will be the Treasury
constant maturity rate having the designated index maturity, as published in
H.15(519) or another recognized electronic source for displaying the rate, (ii)
if the applicable rate described above is not published in H.15(519) or another
recognized electronic source for displaying such rate by 3:00 p.m., New York
City time on that Interest Rate Determination Date, unless the calculation is
made earlier and the rate is available from one of those sources at that time,
then the CMT Rate will be the Treasury constant maturity rate, or other United
States Treasury rate, for the index maturity and with reference to the relevant
Interest Rate Determination Date, that is published by either the Board of
Governors of the Federal Reserve System or the United States Department of the
Treasury and that the Administrator determines to be comparable to the rate
formerly displayed on the Designated CMT Moneyline Telerate Page shown above and
published in H.15(519), (iii) if the rate described in the prior paragraph
cannot be determined, then the Administrator will determine the CMT Rate to be a
yield to maturity based on the average of the secondary market closing offered
rates as of approximately 3:30 p.m., New York City time, on the relevant
Interest Rate Determination Date reported, according to their written records,
by leading primary United States government securities dealers in New York City.
The Administrator will select five such securities dealers and will eliminate
the highest and lowest quotations or, in the event of equality, one of the
highest and lowest quotations, for the most recently issued direct noncallable
fixed rate obligations of the United States Treasury ("Treasury Notes") with an
original maturity of approximately the designated index maturity and a remaining
term to maturity of not less than the designated index maturity minus one year
in a representative amount, (iv) if the Administrator cannot obtain three
Treasury Note quotations of the kind described above in (iii), the Administrator
will determine the CMT Rate to be the yield to maturity based on the average of
the secondary market bid rates for Treasury Notes with an original maturity
longer than the designated CMT index maturity which have a remaining term to
maturity closest to the designated CMT index maturity and in a representative
amount, as of approximately 3:30 p.m., New York City time, on the relevant
Interest Rate Determination Date of leading primary United States government
securities dealers in New York City. In selecting these offered rates, the
Administrator will request quotations from at least five such securities dealers
and will disregard the highest quotation (or if there is equality, one of the
highest) and the lowest quotation (or if there is equality, one of the lowest).
If two Treasury Notes with an original maturity longer than the designated CMT
index maturity have remaining terms to maturity that are equally close to the
designated CMT index maturity, the Administrator will obtain quotations for the
Treasury Note with the shorter remaining term to maturity, (v) if three or four
but not five leading primary United States government securities dealers are
quoting as described in the prior paragraph, then the CMT Rate for the relevant
Interest Rate Determination Date will be based on the average of the bid rates
obtained and neither the highest nor the lowest of those quotations will be
eliminated, or (vi) if fewer than three leading primary United States government
securities dealers selected by the Administrator are quoting as described in (v)
above, the CMT Rate will remain the CMT Rate then in effect on that Interest
Rate Determination Date.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and Treasury Regulations promulgated thereunder.
Appendix A-1-12
"Collateral" has the meaning specified in the Granting Clause of the
Indenture.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 2.3(f) of the Administration Agreement.
"Collection Account Initial Deposit" means $0.
"Collection Period" means, with respect to the first Distribution Date,
the period beginning on the Cutoff Date and ending on February 29, 2004, and
with respect to each subsequent Distribution Date, the Collection Period means
the three calendar months immediately following the end of the previous
Collection Period.
"Commercial Paper Rate" means, for any relevant Interest Rate
Determination Date prior to each related Interest Rate Change Date, the Bond
Equivalent Yield shown below of the rate for 90-day commercial paper, as
published in H.15(519) prior to 3:00 p.m., New York City time, on that Interest
Rate Determination Date under the heading "Commercial Paper--Financial". If the
rate described above is not published in H.15(519) by 3:00 p.m., New York City
time, on that Interest Rate Determination Date, unless the calculation is made
earlier and the rate was available from that source at that time, then the
Commercial Paper Rate will be the Bond Equivalent Yield of the rate on the
relevant Interest Rate Determination Date, for commercial paper having the index
maturity specified on the Remarketing Terms Determination Date, as published in
H.15 Daily Update or any other recognized electronic source used for displaying
that rate under the heading "Commercial Paper--Financial". For purposes of the
definition of "Commercial Paper Rate", the "Bond Equivalent Yield" equals
[(NxD)]/[360(Dx90)] times 100, where "D" refers to the per annum rate determined
as set forth above, quoted on a bank discount basis and expressed as a decimal
and "N" refers to 365 or 366, as the case may be. If the rate described above
cannot be determined, the Commercial Paper Rate will remain the commercial paper
rate then in effect on that Interest Rate Determination Date. Unless otherwise
specified on the Remarketing Terms Determination Date, the Commercial Paper Rate
will be subject to a Lock-In Period of six Business Days.
"Commission" means the Securities and Exchange Commission.
"Consolidation Loans" means Student Loans made in accordance with the
Section 428C of the Higher Education Act.
"Corporate Trust Office" means (i) with respect to the Indenture
Trustee, the principal office of the Indenture Trustee at which at any
particular time its corporate trust business shall be administered, which office
at the Closing Date is located at 000 Xxxxxxx Xxxxxx 0 Xxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust Group (telephone: (000) 000-0000, facsimile:
(000) 000-0000) or at such other address as the Indenture Trustee may designate
from time to time by notice to the Noteholders and the Depositor, or the
principal corporate trust office of any successor Indenture Trustee (the address
of which the successor Indenture Trustee will notify the Noteholders, the
Administrator and the Depositor) and (ii) with respect to the Eligible Lender
Trustee, the principal corporate trust office of the Eligible Lender Trustee
located at Christiana Center/OPS4, 000 Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Department (telephone: (000) 000-0000;
facsimile: (000) 000-0000);
Appendix A-1-13
or at such other address as the Eligible Lender Trustee may designate by notice
to the Depositor, or the principal corporate trust office of any successor
Eligible Lender Trustee (the address of which the successor Eligible Lender
Trustee will notify the Administrator and the Depositor).
"Custodian" has the meaning specified in Section 2.1 of the Indenture.
"Cutoff Date" means October 6, 2003.
"Day Count Basis" means 30/360, Actual/360, Actual/365 (fixed),
Actual/Actual (accrual basis) or Actual/Actual (payment basis), as applicable,
or any other day count basis set forth in the Remarketing Terms Notice.
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Definitive Notes" has the meaning specified in Section 2.10 of the
Indenture.
"Delaware Statutory Trust Act" means Chapter 38 of Title 12, Part V of
the Delaware Code, entitled "Treatment of Delaware Statutory Trusts".
"Delivery" when used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial
paper, negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-102(a)(47) of the UCC and are
susceptible of physical delivery, transfer thereof to the Indenture Trustee or
its nominee or custodian by physical delivery to the Indenture Trustee or its
nominee or custodian endorsed to, or registered in the name of, the Indenture
Trustee or its nominee or custodian or endorsed in blank, and, with respect to a
certificated security (as defined in Section 8-102(a)(3) of the UCC) transfer
thereof (i) by delivery of such certificated security endorsed to, or registered
in the name of, the Indenture Trustee or its nominee or custodian or endorsed in
blank to a securities intermediary (as defined in Section 8-102(a)(14) of the
UCC) and the making by such securities intermediary of entries on its books and
records identifying such certificated securities as belonging to the Indenture
Trustee or its nominee or custodian and the sending by such securities
intermediary of a confirmation of the purchase of such certificated security by
the Indenture Trustee or its nominee or custodian, or (ii) by delivery thereof
to a "clearing corporation" (as defined in Section 8-102(a)(5) of the UCC) and
the making by such clearing corporation of appropriate entries on its books
reducing the appropriate securities account of the transferor and increasing the
appropriate securities account of a securities intermediary by the amount of
such certificated security, the identification by the clearing corporation of
the certificated securities for the sole and exclusive account of the securities
intermediary, the maintenance of such certificated securities by such clearing
corporation or the nominee of either subject to the clearing corporation's
exclusive control, the sending of a confirmation by the securities intermediary
of the purchase by the Indenture Trustee or its nominee or custodian of such
securities and the making by such securities intermediary of entries on its
books and records identifying such certificated securities as belonging to the
Indenture Trustee or its nominee or custodian (all of the foregoing, but not
including Trust Student Loans, "Physical Property"); and such additional or
alternative procedures as may hereafter become appropriate to effect the
complete transfer of ownership of any such Trust Account Property to
Appendix A-1-14
the Indenture Trustee or its nominee or custodian, consistent with changes in
applicable law or regulations or the interpretation thereof;
(b) with respect to any security issued by the U.S.
Treasury, the Government National Mortgage Association, the Federal Home Loan
Mortgage Corporation or the Federal National Mortgage Association that is a
book-entry security held at a Federal Reserve Bank pursuant to Federal
book-entry regulations, the following procedures, all in accordance with
applicable law, including applicable Federal regulations and Articles 8 and 9 of
the UCC: the crediting of such book-entry security to an appropriate book-entry
account of the Indenture Trustee or its nominee or the custodian or securities
intermediary at a Federal Reserve Bank, causing the custodian to continuously
indicate by book-entry such book-entry security as credited to the relevant
book-entry account, the continuous crediting of such book-entry security to a
securities account of the custodian at such Federal Reserve Bank and the
continuous identification of such book-entry security by the custodian as
credited to the appropriate book-entry account; and
(c) with respect to any item of Trust Account Property
that is an uncertificated security under Article 8 of the UCC and that is not
governed by clause (b) above, registration on the books and records of the
issuer thereof in the name of the securities intermediary, the sending of a
confirmation by the securities intermediary of the purchase by the Indenture
Trustee or its nominee or custodian of such uncertificated security, the making
by such securities intermediary of entries on its books and records identifying
such uncertificated certificates as belonging to the Indenture Trustee or its
nominee or custodian.
"Department" means the United States Department of Education, an agency
of the Federal government.
"Depositor" means SLM Funding LLC, a Delaware limited liability
company, and its successors and assigns, including for such purpose, a permitted
transferee of all of SLM Funding LLC's right, title and interest in the Excess
Distribution Certificate.
"Determination Date" means, with respect to the Collection Period
preceding any Distribution Date, the first Business Day preceding such
Distribution Date.
"Distribution Date" means for any class of Notes, the 15th day of each
of March, June, September and December, or, if such day is not a Business Day,
the immediately following Business Day, commencing on March 15, 2004.
"DTC" means the Depository Trust Company, or any successor thereto.
"Eligible Deposit Account" means with respect to the Trust Accounts
either (a) a segregated account with an Eligible Institution or (b) a segregated
trust account with the corporate trust department of a depository institution
organized under the laws of the United States of America or any one of the
States or the District of Columbia (or any domestic branch of a foreign bank),
having corporate trust powers and acting as trustee for funds deposited in such
account, so long as any of the securities of such depository institution have a
credit rating from Xxxxx'x, S&P, and, if such institution is rated by Fitch,
Fitch, in one of their generic rating categories which signifies investment
grade.
Appendix A-1-15
"Eligible Institution" means a depository institution organized under
the laws of the United States of America or any one of the States or the
District of Columbia (or any domestic branch of a foreign bank) (i) which has
(A) either a long-term senior unsecured debt rating of "AAA" or a short-term
senior unsecured debt or certificate of deposit rating of "A-1+" or better by
S&P and (B)(1) a long-term senior unsecured debt rating of "A1" or better and
(2) a short-term senior unsecured debt rating of "P-1" or better by Xxxxx'x, and
(C) if such institution is rated by Fitch, a long-term senior unsecured debt
rating of "AA" or a short-term senior unsecured debt rating of "F-1+", or any
other long-term, short-term or certificate of deposit rating with respect to
which the Rating Agency Condition has been satisfied and (ii) whose deposits are
insured by the FDIC. If so qualified, the Eligible Lender Trustee or the
Indenture Trustee may be considered an Eligible Institution.
"Eligible Investments" means book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(a) direct obligations of, and obligations fully
guaranteed as to timely payment by, the United States of America, the Government
National Mortgage Association, the Federal Home Loan Mortgage Corporation, the
Federal National Mortgage Association, Xxxxxx Xxx, or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America; provided
that obligations of, or guaranteed by, the Government National Mortgage
Association, the Federal Home Loan Mortgage Corporation, the Federal National
Mortgage Association or Xxxxxx Mae shall be Eligible Investments only if, at the
time of investment, they meet the criteria of each of the Rating Agencies for
collateral for securities having ratings equivalent to the respective ratings of
the Notes in effect at the Closing Date;
(b) demand deposits, time deposits or certificates of
deposit of any depository institution or trust company incorporated under the
laws of the United States of America or any State (or any domestic branch of a
foreign bank) and subject to supervision and examination by Federal or state
banking or depository institution authorities (including depository receipts
issued by any such institution or trust company as custodian with respect to any
obligation referred to in clause (a) above or portion of such obligation for the
benefit of the holders of such depository receipts); provided that at the time
of the investment or contractual commitment to invest therein (which shall be
deemed to be made again each time funds are reinvested following each
Distribution Date), the commercial paper or other short-term senior unsecured
debt obligations (other than such obligations the rating of which is based on
the credit of a Person other than such depository institution or trust company)
thereof shall have a credit rating from each of the Rating Agencies in the
highest investment category granted thereby;
(c) commercial paper having, at the time of the
investment, a rating from each of the Rating Agencies in the highest investment
category granted thereby;
(d) investments in money market funds having a rating
from each of the Rating Agencies in the highest investment category granted
thereby (including funds for which the Indenture Trustee, the Administrator or
the Eligible Lender Trustee or any of their respective Affiliates is investment
manager or advisor);
Appendix A-1-16
(e) bankers' acceptances issued by any depository
institution or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security
that is a direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States of America, in either
case entered into with a depository institution or trust company (acting as
principal) described in clause (b) above;
(g) asset-backed securities, including asset-backed
securities issued by Affiliates, or entities formed by Affiliates, of Xxxxxx
Xxx, but excluding mortgage-backed securities, that at the time of investment
have a rating in the highest investment category granted by each of the Rating
Agencies; provided that the purchase price of any such asset-backed security in
excess of par must be paid for with amounts on deposit in the Investment Premium
Purchase Account; and
(h) any other investment which would not result in the
downgrading or withdrawal of any rating of the Notes by any of the Rating
Agencies as affirmed in writing delivered to the Indenture Trustee.
For purposes of the definition of "Eligible Investments" the phrase "highest
investment category" means (i) in the case of Fitch, "AAA" for long-term
investments (or the equivalent) and "F-1+" for short-term investments (or the
equivalent), (ii) in the case of Xxxxx'x, "Aaa" for long-term investments (or
the equivalent) and "P-1" for short-term investments (or the equivalent), and
(iii) in the case of S&P, "AAA" for long-term investments (or the equivalent)
and "A-1+" for short-term investments (or the equivalent). A proposed investment
not rated by Fitch but rated in the highest investment category by Xxxxx'x and
S&P shall be considered to be rated by each of the Rating Agencies in the
highest investment category granted thereby.
"Eligible Lender Trustee" means Chase Manhattan Bank USA, National
Association, a national banking association, not in its individual capacity but
solely as Eligible Lender Trustee under the Trust Agreement. "Eligible Lender
Trustee" shall also mean each successor Eligible Lender Trustee as of the
qualification of such successor as Eligible Lender Trustee under the Trust
Agreement.
"Eligible Loans" has the meaning specified in the Purchase Agreement or
the Sale Agreement, as applicable.
"Eligible Swap Counterparty" means an entity, which may be an affiliate
of a Remarketing Agent, engaged in the business of entering into derivative
instrument contracts that satisfies the Rating Agency Condition.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Euroclear" means the Euroclear System, or any successor thereto.
"European Clearing Systems" means Euroclear or Clearstream.
Appendix A-1-17
"Event of Default" has the meaning specified in Section 5.1 of the
Indenture.
"Excess Distribution Certificate" means the certificate, substantially
in the form of Exhibit A to the Trust Agreement, evidencing the right to receive
payments thereon as set forth in Sections 2.8(p), 2.9(f) and 2.10(a)(ii) of the
Administration Agreement.
"Excess Distribution Certificate Paying Agent" means any paying agent
or co-paying agent appointed pursuant to Section 3.13(g) of the Trust Agreement,
which shall initially be the Eligible Lender Trustee.
"Excess Distribution Certificate Register" and "Excess Distribution
Certificate Registrar" mean the register mentioned and the registrar appointed
pursuant to Section 3.13(c) of the Trust Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
any Executive Vice President, any Senior Vice President, any Vice President, the
Secretary or the Treasurer of such corporation; and with respect to any
partnership, any general partner thereof.
"Expenses" means any and all liabilities, obligations, losses, damages,
taxes, claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and
nature whatsoever which may at any time be imposed on, incurred by, or asserted
against the Eligible Lender Trustee or any of its officers, directors or agents
in any way relating to or arising out of the Trust Agreement, the other Basic
Documents, the Trust Estate, the administration of the Trust Estate or the
action or inaction of the Eligible Lender Trustee under the Trust Agreement or
the other Basic Documents.
"Failed Remarketing" means, on any Reset Date for a class of Reset Rate
Notes, the situation where:
(a) the Remarketing Agents, in consultation with the
Administrator, cannot establish one or more of the terms required to be set on
the Remarketing Terms Determination Date;
(b) the Remarketing Agents are unable to establish the
related Spread or fixed rate on the Spread Determination Date;
(c) either the Remarketing Agents are unable to remarket
some or all of the tendered Reset Rate Notes at the Spread or fixed rate
established on the Spread Determination Date, or any committed purchasers
default on their purchase obligations and in their sole discretion, the
Remarketing Agents elect not to purchase those Reset Rate Notes themselves;
(d) the Remarketing Agents, in consultation with the
Administrator, are unable to obtain one or more Interest Rate Swap Agreements
meeting the required criteria, if applicable;
Appendix A-1-18
(e) any of the conditions specified in Section 8 of the
Remarketing Agreement are not satisfied; or
(f) any applicable Rating Agency Condition has not been
satisfied.
"Failed Remarketing Rate" means, for any Reset Date and any class of
Reset Rate Notes, Three-Month LIBOR plus 0.75%.
"FDIC" means the Federal Deposit Insurance Corporation.
"Federal Funds Rate" means the rate set forth for such day opposite the
caption "Federal Funds (effective)" in the weekly statistical release designated
H.15(519), or any successor publication, published by the Board of Governors of
the Federal Reserve System. If such rate is not published in the relevant
H.15(519) for any day, the rate for such day shall be the arithmetic mean of the
rates for the last transaction in overnight Federal Funds arranged prior to 9:00
a.m. New York City time on that day by each of four leading brokers in such
transactions located in New York City selected by the Administrator. The Federal
Funds rate for each Saturday and Sunday and for any other that is not a Business
Day shall be the Federal Funds Rate for the preceding Business Day as determined
above.
"Fitch" means Fitch Inc., also known as Fitch Ratings, or any successor
rating agency.
"Five-Month LIBOR" see "Three-Month LIBOR".
"Floating Rate Class A Notes" means the Class A-1 Notes, Class A-2
Notes, Class A-3 Notes and Class A-4 Notes.
"Floating Rate Noteholder" means the Person in whose name a Floating
Rate Note is registered in the Note Register.
"Floating Rate Notes" means the Floating Rate Class A Notes and the
Class B Notes.
"Four-Month LIBOR" see "Three-Month LIBOR".
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create and xxxxx x xxxx upon and a
security interest in and right of set-off against, deposit, set over and confirm
pursuant to the Indenture. A Grant of the Collateral or of any other agreement
or instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Guarantee Agreement" means any agreement between any Guarantor and the
Eligible Lender Trustee providing for the payment by the Guarantor of amounts
authorized to be paid
Appendix A-1-19
pursuant to the Higher Education Act to holders of qualifying Student Loans
guaranteed in accordance with the Higher Education Act by such Guarantor.
"Guarantee Payment" means any payment made by a Guarantor pursuant to a
Guarantee Agreement in respect of a Trust Student Loan.
"Guarantor" means any entity listed on Attachment B (as amended from
time to time) to the Sale Agreement the Purchase Agreement.
"H.15(519)" means the weekly statistical release designated as such, or
any successor publication, published by the Board of Governors of the United
States Federal Reserve System.
"H.15 Daily Update" means the daily update for H.15(519), available
through the world wide web site of the Board of Governors of the Federal Reserve
System at xxxx://xxx.xxxxxxxxxxxxxx.xxx/xxxxxxxx/x00/xxxxxx, or any successor
site or publications.
"Higher Education Act" means the Higher Education Act of 1965, as
amended, together with any rules, regulations and interpretations thereunder.
"Hold Notice" means a written statement (or an oral statement confirmed
in writing, which may be by e-mail) from a holder or beneficial owner of a Reset
Rate Note delivered to a Remarketing Agent that such holder or beneficial owner
desires to hold its Reset Rate Notes for the upcoming Reset Period and
affirmatively agrees to receive a rate of interest of not less than the
applicable All Hold Rate during that Reset Period.
"Indenture" means the Indenture dated as of October 1, 2003, among the
Eligible Lender Trustee on behalf of the Trust, the Trust and the Indenture
Trustee.
"Indenture Trust Estate" means all money, instruments, rights and other
property that are subject or intended to be subject to the lien and security
interest of the Indenture for the benefit of the Noteholders and, as applicable,
each Interest Rate Swap Counterparty (including all Collateral Granted to the
Indenture Trustee), including all proceeds thereof.
"Indenture Trustee" means The Bank of New York, a New York banking
corporation, not in its individual capacity but solely as trustee under the
Indenture.
"Independent" means, when used with respect to any specified Person,
that the Person (a) is in fact independent of the Trust, any other obligor upon
the Notes, the Depositor and any Affiliate of any of the foregoing Persons, (b)
does not have any direct financial interest or any material indirect financial
interest in the Trust, any such other obligor, the Depositor or any Affiliate of
any of the foregoing Persons and (c) is not connected with the Trust, any such
other obligor, the Depositor or any Affiliate of any of the foregoing Persons as
an officer, employee, promoter, underwriter, placement agent, trustee, partner,
director or person performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1 of the
Indenture, made by an Independent appraiser or other expert
Appendix A-1-20
appointed by an Issuer Order and approved by the Indenture Trustee in the
exercise of reasonable care, and such opinion or certificate shall state that
the signer has read the definition of "Independent" in the Indenture and that
the signer is Independent within the meaning thereof.
"Index" or "Indices" means LIBOR, a Commercial Paper Rate, the CMT
Rate, the Federal Funds Rate, the 91-day Treasury Xxxx Rate, the Prime Rate or
any other interest rate index specified in Schedule A to any class of Reset Rate
Notes.
"Index Maturity" means, with respect to any Accrual Period, the
interval between Interest Rate Change Dates for each applicable Index during
such Accrual Period, commencing on the first day of that Accrual Period.
"Initial Accrual Rate" means for each class of Notes (other than the
Class A-5 Notes and Class A-7 Notes during their respective initial Reset
Periods) and the Accrual Period commencing on the Closing Date to, but
excluding, the first Distribution Date, the rate per annum as determined on the
related Determination Date, as follows:
X + [14/29 x (Y - X)]
where:
X = Four-Month LIBOR, and
Y = Five-Month LIBOR
"Initial Pool Balance" means the Pool Balance as of the Cutoff Date,
which is $2,005,349,517.
"Initial Purchasers" means, collectively, Banc of America Securities
LLC, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxx Xxxxxxx & Co.
Incorporated.
"Initial Remarketing Agency Agreement" means each agreement,
substantially in the form of Appendix B to the Remarketing Agreement to be
entered into on each Remarketing Terms Determination Date (unless the Call
Option has been exercised) among the Remarketing Agents, the Administrator and
the Trust.
"Initial Reset Date" means, for the Class A-5 Notes, Class A-6 Notes
and the Class A-7 Notes, the Distribution Date in December 2006, December 2013
and September 2008, respectively.
"Initial Reset Date Notice" means the written notice delivered pursuant
to Section 3(a) of the Reset Rate Note Procedures.
"Initial Interest Rate Swap Agreements" means any Interest Rate Swap
Agreement effective as of the Closing Date.
"Initial Interest Rate Swap Counterparty" means Xxxxxx Xxxxxxx Capital
Services Inc. with respect to the Class A-5 Notes and Bank of America, N.A. with
respect to the Class A-7 Notes.
Appendix A-1-21
"Insolvency Event" means, with respect to a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in an
involuntary case under any applicable Federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or ordering the
winding-up or liquidation of such Person's affairs, which decree or order
remains unstayed and in effect for a period of 60 consecutive days; or (b) the
commencement by such Person of a voluntary case under any applicable Federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect, or
the consent by such Person to the entry of an order for relief in an involuntary
case under any such law, or the consent by such Person to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of
its property, or the making by such Person of any general assignment for the
benefit of creditors, or the failure by such Person generally to pay its debts
as such debts become due, or the taking of action by such Person in furtherance
of any of the foregoing.
"Interest Rate Cap Agreement" means the agreement between the Trust and
Xxxxxx Mae, dated October 21, 2003, documented under a 1992 ISDA Master
Agreement (Multicurrency-Cross Border), including the related schedule and
confirmation, providing for certain payments to the Trust, in the amounts and
under the conditions set forth therein, which will terminate in accordance with
its terms on or before the March 2005 Distribution Date.
"Interest Rate Cap Confirmation" means the confirmation executed under
the Interest Rate Cap Agreement dated as of October 21, 2003 representing the
interest rate cap in a notional amount of $370,000,000.
"Interest Rate Cap Swap Counterparty" means Xxxxxx Xxx and any
successors or permitted assigns.
"Interest Rate Change Date" means for each Accrual Period, the date or
dates, based on the applicable Index, on which the rate of interest for any
class of Reset Rate Notes bearing interest at a floating rate is to be reset.
"Interest Rate Determination Date" means, for each Accrual Period, and
(i) for any class of Reset Rate Notes that bear interest at a LIBOR-based rate,
the related LIBOR Determination Date, as applicable, or (ii) for each class of
Reset Rate Notes that bear interest at a floating rate that is not LIBOR-based,
the applicable date or dates set forth in the related Remarketing Terms Notice,
on which the applicable rate of interest to be in effect as of the next related
Interest Rate Change Date will be determined by the Administrator.
"Interest Rate Swap Agreement" means, with respect to a class of Reset
Rate Notes, any Swap Agreement between the Trust and an Eligible Swap
Counterparty, to hedge some or all of the basis risk for that class during the
related Reset Period.
"Interest Rate Swap Counterparty" means each Eligible Swap Counterparty
with which the Trust enters into an Interest Rate Swap Agreement (including each
Initial Interest Rate Swap Agreement).
Appendix A-1-22
"Interest Subsidy Payments" means payments, designated as such,
consisting of interest subsidies by the Department in respect of the Trust
Student Loans to the Eligible Lender Trustee on behalf of the Trust in
accordance with the Higher Education Act.
"Interim Eligible Lender Trustee" means Chase Manhattan Bank USA,
National Association, a national banking association, not in its individual
capacity but solely as Interim Eligible Lender Trustee under the Interim Trust
Agreement. "Interim Eligible Lender Trustee" shall also mean each successor
Interim Eligible Lender Trustee as of the qualification of such Interim Eligible
Lender Trustee under the Interim Trust Agreement.
"Interim Trust Agreement" means the Interim Trust Agreement dated as of
October 1, 2003, between the Depositor and the Interim Eligible Lender Trustee.
"Interim Trust Loans" has the meaning set forth in the Interim Trust
Agreement.
"Investment Earnings" means, with respect to any Distribution Date, the
Investment Earnings (net of losses and investment expenses) on amounts on
deposit in the Trust Accounts to be deposited into the Collection Account on or
prior to such Distribution Date pursuant to Section 2.3(b) of the Administration
Agreement.
"Investment Premium Purchase Account" means an account designated as
such, established and maintained pursuant to Section 2.3(l) of the
Administration Agreement.
"Investment Premium Purchase Account Deposit Amount" means, with
respect to each Distribution Date when funds are deposited into an Accumulation
Account, an amount equal to (a) 1.00% of the amount deposited into each such
Accumulation Account on such Distribution Date, or (b) with respect to any
Distribution Date that is one year or less prior to a Reset Date relating to any
class of Reset Rate Notes for which funds are then on deposit in an Accumulation
Account, 0.50% of the amount deposited into the related Accumulation Account on
such Distribution Date.
"Investment Premium Purchase Account Release Amount" means, with
respect to any Distribution Date that is one year or less prior to a Reset Date
relating to any class of Reset Rate Notes for which funds are then on deposit in
an Accumulation Account, the amount, if any, to be withdrawn from the Investment
Premium Purchase Account so that the remaining funds on deposit in such
Investment Premium Purchase Account will be equal to the lesser of (a) 0.50% of
the amount on deposit in the related Accumulation Account, and (b) the amount
then on deposit the Investment Premium Purchase Account; provided that on any
Distribution Date that is also a Reset Date for a class of Reset Rate Notes for
which amounts are then on deposit in an Accumulation Account, all Investment
Premium Purchase Account Deposit Amounts relating to such Accumulation Account
that remain on deposit in the Investment Premium Purchase Account will become
part of the Investment Premium Purchase Account Release Amount on such
Distribution Date.
"Investment Reserve Account" means an account designated as such,
established and maintained pursuant to Section 2.3(m) of the Administration
Agreement.
Appendix A-1-23
"Investment Reserve Account Required Amount" means, with respect to
each Distribution Date, immediately following the date when the ratings of any
Eligible Investment in an Accumulation Account has been downgraded by one or
more Rating Agencies, an amount (to the extent of Available Funds), to be set by
each applicable Rating Agency in satisfaction of the Rating Agency Condition
(but not to exceed the amount of the unrealized loss on the related Eligible
Investment).
"Issuer" means the Trust and, for purposes of any provision contained
in the Indenture and required by the TIA, each other obligor on the Notes.
"Issuer Order" and "Issuer Request" means a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee.
"LIBOR" means Three-Month LIBOR, Four-Month LIBOR and Five-Month LIBOR,
as applicable.
"LIBOR Determination Date" means, for each Accrual Period, the second
Business Day before the beginning of that Accrual Period.
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens and any other liens, if any, which
attach to the respective Trust Student Loan by operation of law as a result of
any act or omission by the related Obligor.
"Liquidated Student Loan" means any defaulted Trust Student Loan
liquidated by the Servicer (which shall not include any Trust Student Loan on
which Guarantee Payments are received) or which the Servicer has, after using
all reasonable efforts to realize upon such Trust Student Loan, determined to
charge off.
"Liquidation Proceeds" means, with respect to any Liquidated Student
Loan which became a Liquidated Student Loan during the current Collection Period
in accordance with the Servicer's customary servicing procedures, the moneys
collected in respect of the liquidation thereof from whatever source, other than
Recoveries, net of the sum of any amounts expended by the Servicer in connection
with such liquidation and any amounts required by law to be remitted to the
Obligor on such Liquidated Student Loan.
"Loan" has the meaning set forth in Section 2 of the Purchase
Agreement.
"Lock-In Period" means a period from the first day of such Lock-In
Period (which may be expressed as a number of Business Days prior to a
Distribution Date) to the immediately succeeding Interest Payment Date during
which the interest rate, Index or other calculation in effect on the first day
of such Lock-In Period shall remain in effect for every day in such Lock-In
Period.
"Luxembourg Listing Agent" means, initially, The Bank of New York
(Luxembourg) S.A.
"Luxembourg Paying Agent" means, initially, The Bank of New York
(Luxembourg) S.A.
Appendix A-1-24
"Minimum Purchase Amount" means an amount that would be sufficient to
(i) reduce the Outstanding Amount of each class of Notes, less the amount on
deposit in any Accumulation Accounts with respect to the Reset Rate Notes, on
such Distribution Date to zero and (ii) pay to the respective Noteholders the
Class A Noteholders' Interest Distribution Amount and the Class B Noteholders'
Interest Distribution Amount payable on such Distribution Date.
"Monthly Servicing Payment Date" means the 15th day of each calendar
month or, if such day is not a Business Day, the immediately following Business
Day, commencing on December 15, 2003.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor
rating agency.
"Note" and "Notes" means any of the Floating Rate Notes and the Reset
Rate Notes.
"Note Depository Agreement" means the Letter of Representations, dated
October 30, 2003, among the Trust, the Eligible Lender Trustee and the Indenture
Trustee in favor of DTC.
"Note Final Maturity Date" for a class of Notes means the Class A-1
Maturity Date, the Class A-2 Maturity Date, the Class A-3 Maturity Date, the
Class A-4 Maturity Date, the Class A-5 Maturity Date, the Class A-6 Maturity
Date, the Class A-7 Maturity Date or the Class B Maturity Date, as applicable.
"Note Interest Shortfall" means the Class A Note Interest Shortfall, if
any, and/or the Class B Note Interest Shortfall, as applicable.
"Note Owner" means, with respect to a Book-Entry Note, the Person who
is the owner of such Book-Entry Note, as reflected on the books of the
applicable Clearing Agency, or on the books of a Person maintaining an account
with such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such Clearing
Agency).
"Note Pool Factor" means, as of the close of business on a Distribution
Date, a seven-digit decimal figure equal to the Outstanding Amount of a class of
Notes divided by the original Outstanding Amount of such class of Notes. The
Note Pool Factor for each class will be 1.0000000 as of the Closing Date;
thereafter, the Note Pool Factor for each class will decline to reflect
reductions in the Outstanding Amount of that class of Notes.
"Note Rates" means, with respect to any Accrual Period, the Class A-1
Rate, the Class A-2 Rate, the Class A-3 Rate, the Class A-4 Rate, the Class A-5
Rate, the Class A-6 Rate, the Class A-7 Rate and the Class B Rate for such
Accrual Period, collectively.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.4 of the Indenture.
"Noteholder" means a Floating Rate Noteholder, a Class A Noteholder, a
Reset Rate Noteholder or a Class B Noteholder, as the context requires.
Appendix A-1-25
"Notes" means the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes, the Class A-5 Notes, the Class A-6 Notes, the Class
A-7 Notes and the Class B Notes, collectively.
"Notice Date" means, for each class of Reset Rate Notes, 12:00 p.m.
(noon), New York City time, on the sixth day prior to the related Reset Date.
"Obligor" on a Trust Student Loan means the borrower or co-borrowers of
such Trust Student Loan and any other Person who owes payments in respect of
such Trust Student Loan, including the Guarantor thereof and, with respect to
any Interest Subsidy Payment or Special Allowance Payment, if any, thereon, the
Department.
"Officers' Certificate" means (i) in the case of the Trust, a
certificate signed by any two Authorized Officers of the Eligible Lender
Trustee, under the circumstances described in, and otherwise complying with, the
applicable requirements of Section 11.1 of the Indenture, and delivered to the
Indenture Trustee, and (ii) in the case of the Depositor, the Administrator or
the Servicer, a certificate signed by any two Authorized Officers of the
Depositor, the Administrator or the Servicer, as applicable.
"Opinion of Counsel" means (i) with respect to the Trust, one or more
written opinions of counsel who may, except as otherwise expressly provided in
the Indenture, be employees of or counsel to the Eligible Lender Trustee, the
Trust, the Depositor or an Affiliate of the Depositor and who shall be
satisfactory to the Indenture Trustee, and which opinion or opinions shall be
addressed to the Indenture Trustee as Indenture Trustee, shall comply with any
applicable requirements of Section 11.1 of the Indenture and shall be in form
and substance satisfactory to the Indenture Trustee, and (ii) with respect to
the Depositor, the Administrator or the Servicer, one or more written opinions
of counsel who may be an employee of or counsel to the Depositor, the
Administrator or the Servicer, which counsel shall be acceptable to the
Indenture Trustee and the Eligible Lender Trustee.
"Origination Fee" means the origination fee payable to the Department
by the lender with respect to any Trust Student Loan made on or after October 1,
1993, equal to 0.50% of the initial principal balance of such loan.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under the Indenture except:
(a) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(b) Notes, or portions thereof, for which payment has
been made to the applicable Noteholders in reduction of the outstanding
principal balance thereof or for which money in the necessary amount has been
theretofore deposited with the Indenture Trustee or any Paying Agent in trust
for the Noteholders thereof (excluding for such purpose any amounts on deposit
in any Accumulation Account); provided, however, that if such Notes are to be
redeemed, notice of such redemption has been duly given pursuant to the
Indenture; and
Appendix A-1-26
(c) Notes in exchange for or in lieu of other Notes which
have been authenticated and delivered pursuant to the Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes are held
by a bona fide purchaser; provided that in determining whether the Noteholders
of the requisite Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any other
Basic Document, Notes owned by the Trust, any other obligor upon the Notes, the
Depositor or any Affiliate of any of the foregoing Persons shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Indenture Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that a
Responsible Officer of the Indenture Trustee either actually knows to be so
owned or has received written notice thereof shall be so disregarded. Notes so
owned that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Indenture Trustee the pledgee's
right so to act with respect to such Notes and that the pledgee is not the
Trust, any other obligor upon the Notes, the Depositor or any Affiliate of any
of the foregoing Persons.
"Outstanding Amount" means the aggregate principal balance of all the
Notes or the applicable class or classes of Notes, as the case may be,
Outstanding at the date of determination.
"Paying Agent" means, the Indenture Trustee or any other Person that
meets the eligibility standards for the Indenture Trustee specified in Section
6.11 of the Indenture and is authorized by the Eligible Lender Trustee, on
behalf of the Trust, to make the payments to and distributions from the
Collection Account and payments of principal and interest and any other amounts
owing on the Notes on behalf of the Trust.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization, limited liability company, limited
liability partnership or government or any agency or political subdivision
thereof.
"Physical Property" has the meaning assigned to such terms in the
definition of "Delivery" above.
"Pool Balance" for any date means the aggregate principal balance of
the Trust Student Loans on that date, including accrued interest that is
expected to be capitalized, as reduced by:
(a) all payments received by the Trust through that date
from borrowers, the Guarantors and the Department;
(b) all amounts received by the Trust through that date
from purchases of the Trust Student Loans by Xxxxxx Xxx, the Depositor, or the
Servicer;
(c) all Liquidation Proceeds and Realized Losses on the
Trust Student Loans liquidated through that date;
(d) the amount of any adjustments to balances of the
Trust Student Loans that the Servicer makes under the Servicing Agreement
through that date; and
Appendix A-1-27
(e) the amount by which Guarantor reimbursements of
principal on defaulted Trust Student Loans through that date are reduced from
100% to 98%, or other applicable percentage, as required by the risk sharing
provisions of the Higher Education Act.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.5 of the Indenture and in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Primary Servicing Fee" for any Monthly Servicing Payment Date has the
meaning specified in Attachment A to the Servicing Agreement, and shall include
any such fees from prior Monthly Servicing Payment Dates that remain unpaid.
"Prime Rate" means, for any relevant Interest Rate Determination Date
prior to each related Interest Rate Change Date, the prime rate or base lending
rate on that date, as published in H.15(519), prior to 3:00 p.m., New York City
time, on that Interest Rate Determination Date under the heading "Bank Prime
Loan." The Administrator will observe the following procedures if the Prime Rate
cannot be determined as described above: (i) if the rate described above is not
published in H.15(519) prior to 3:00 p.m., New York City time, on the relevant
Interest Rate Determination Date unless the calculation is made earlier and the
rate was available from that source at that time, then the Prime Rate will be
the rate for that Interest Rate Determination Date, as published in H.15 Daily
Update or another recognized electronic source for displaying such rate opposite
the caption "Bank Prime Loan", (ii) if the above rate is not published in either
H.15(519), H.15 Daily Update or another recognized electronic source for
displaying such rate by 3:00 p.m., New York City time, on the relevant Interest
Rate Determination Date, then the Administrator will determine the Prime Rate to
be the average of the rates of interest publicly announced by each bank that
appears on the Reuters screen designated as "USPRIME1" as that bank's prime rate
or base lending rate as in effect on that Interest Rate Determination Date,
(iii) if fewer than four rates appear on the Reuters screen USPRIME1 page on the
relevant Interest Rate Determination Date, then the Prime Rate will be the
average of the prime rates or base lending rates quoted, on the basis of the
actual number of days in the year divided by a 360-day year, as of the close of
business on that Interest Rate Determination Date by three major banks in New
York City selected by the Administrator, or (iv) if the banks selected by the
Administrator are not quoting as mentioned above, the Prime Rate will remain the
prime rate then in effect on that Interest Rate Determination Date.
"Principal Distribution Amount" means, (i) with respect to the initial
Distribution Date, the amount by which the sum of the Outstanding Amount of the
Notes exceeds the Adjusted Pool Balance for that Distribution Date, and (ii)
with respect to each subsequent Distribution Date, the sum of (a) the amount by
which the Adjusted Pool Balance for the preceding Distribution Date exceeds the
Adjusted Pool Balance for that Distribution Date, and (b) any amounts received
under the Interest Rate Cap Agreement for that Distribution Date.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
Appendix A-1-28
"Purchase Agreement" means the Purchase Agreement Master Securitization
Terms Number 1000 dated as of October 30, 2003, among Xxxxxx Mae, the Interim
Eligible Lender Trustee and the Depositor.
"Purchase Amount" with respect to any Trust Student Loan means the
amount required to prepay in full such Trust Student Loan under the terms
thereof including all accrued interest thereon.
"Purchased Student Loan" means a Trust Student Loan which is, as of the
close of business on the last day of a Collection Period, purchased by the
Servicer pursuant to Section 3.5 of the Servicing Agreement or repurchased by
the Depositor pursuant to Section 6 of the Sale Agreement, purchased by Xxxxxx
Xxx pursuant to Section 6 of the Purchase Agreement.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A
under the Act.
"Quarterly Funding Amount" means, for each class of Reset Rate Notes,
for any Distribution Date that is (1) more than one year before the next Reset
Date, zero and (2) one year or less before the next Reset Date, an amount to be
deposited into the Remarketing Fee Account for that class so that the amount
therein equals the Quarterly Required Amount; provided, however, that if on any
Distribution Date that is not a Reset Date, the amount on deposit in the
Remarketing Fee Account is greater than the Quarterly Required Amount, such
excess will be transferred to the Collection Account and included in Available
Funds for that Distribution Date.
"Quarterly Required Amount" means, for each class of Reset Rate Notes,
(1) on any Reset Date, the Reset Period Target Amount or (2) on a Distribution
Date that is one year or less before the next Reset Date, (x) the Reset Period
Target Amount multiplied by (y) 5 minus the number of Distribution Dates
remaining until the next Reset Date (excluding the current Distribution Date and
including the next Reset Date), divided by (z) five (5).
"Rating Agency" means Xxxxx'x, S&P and Fitch. If any such organization
or successor thereto is no longer in existence, "Rating Agency" with respect to
such organization shall be a nationally recognized statistical rating
organization or other comparable Person designated by the Administrator, notice
of which designation shall be given to the Indenture Trustee, the Eligible
Lender Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any intended action,
that each Rating Agency then rating a class of Notes shall have been given 10
days' prior written notice thereof and that each such Rating Agency shall have
notified the Administrator, the Servicer, the Eligible Lender Trustee, the
Indenture Trustee and the Remarketing Agents, if applicable, in writing that
such proposed action will not result in and of itself in the reduction or
withdrawal of its then-current rating of any class of Notes.
"Realized Loss" means the excess of the principal balance, including
any interest that had been or had been expected to be capitalized, of any
Liquidated Student Loan over Liquidation Proceeds for that Liquidated Student
Loan to the extent allocable to principal, including any interest that had been
or had been expected to be capitalized.
Appendix A-1-29
"Record Date" means, with respect to a Distribution Date or Redemption
Date and for each class of Notes, the close of business on the day preceding
such Distribution Date or Redemption Date.
"Recoveries" means moneys collected from whatever source with respect
to any Liquidated Student Loan which was written off in prior Collection Periods
or during the current Collection Period, net of the sum of any amounts expended
by the Servicer for the account of any Obligor and any amounts required by law
to be remitted to any Obligor.
"Redemption Date" means in the case of a payment to Noteholders
pursuant to Section 10.1 of the Indenture, the Distribution Date specified
pursuant to Section 10.1 of the Indenture.
"Redemption Price" means an amount equal to the Outstanding Amount of
the Notes, plus accrued and unpaid interest thereon at the applicable Note Rates
to but excluding the Redemption Date.
"Reference Banks" means with respect to LIBOR, four major banks in the
London interbank market selected by the Administrator.
"Remarketing Agency Agreement" means the collective reference to an
Initial Remarketing Agency Agreement and the related Supplemental Remarketing
Agency Agreement.
"Remarketing Agent" means, initially, each of Banc of America
Securities LLC, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxx
Xxxxxxx & Co. Incorporated. The Administrator, in its sole discretion, may
change any Remarketing Agent for any class of Reset Rate Notes for any Reset
Period at any time on or before a related Remarketing Terms Determination Date.
"Remarketing Agreement" means the Remarketing Agreement dated as of
October 30, 2003 among the Remarketing Agents, the Administrator and the Trust,
as amended or supplemented from time to time.
"Remarketing Fee Account" means the account designated as such,
established and maintained pursuant to Section 2.3(i) of the Administration
Agreement.
"Remarketing Terms Determination Date" means, for a class of Reset Rate
Notes, not later than 3:00 p.m., New York City time, on the eighth Business Day
prior to the applicable Reset Date.
"Remarketing Terms Notice" means the notice delivered by the
Remarketing Agents to the applicable Noteholders of a class of Reset Rate Notes,
the Indenture Trustee, the Rating Agencies and the applicable Clearing Agencies
on each Remarketing Terms Determination Date containing the information set
forth in the Reset Rate Note Procedures (Appendix A-2 to the Indenture).
"Reserve Account" means the account designated as such, established and
maintained pursuant to Section 2.3(g) of the Administration Agreement.
Appendix A-1-30
"Reserve Account Initial Deposit" means $5,013,374.
"Reset Date" means a Distribution Date on which certain terms for any
class of Reset Rate Notes may be changed in accordance with the Reset Rate Note
Procedures (Appendix A-2 to the Indenture).
"Reset Period" means, with respect to each class of Reset Rate Notes, a
period of at least three months (or any other longer duration that is a multiple
of three months) that will always end on the day before a Distribution Date,
which such Distribution Date will be the next Reset Date for such class of Reset
Rate Notes; provided, that no Reset Period may end after the day before the
Reset Rate Notes Maturity Date.
"Reset Period Target Amount" means, for each class of Reset Rate Notes
and any Distribution Date that is (1) more than one year before the next Reset
Date, zero, and (2) one year or less before the next Reset Date, the highest
remarketing fee payable to the Remarketing Agents for that class of Reset Rate
Notes (not to exceed 0.35% of the maximum principal balance of such class of
Reset Rate Notes that could be remarketed) on the next related Reset Date as
determined by the Administrator based on the assumed weighted average life of
such class and the maximum remarketing fee set forth on a schedule attached to
the Remarketing Agreement, as such schedule may be amended from time to time.
"Reset Rate Note" means any Class A-5 Note, any Class A-6 Note or any
Class A-7 Note.
"Reset Rate Note Procedures" means Appendix A-2 to the Indenture.
"Reset Rate Note Purchase Agreement"
"Reset Rate Noteholder" means the Person in whose name a Reset Rate
Note is registered in the Note Register.
"Reset Rate Notes" means the Class A-5 Notes, the Class A-6 Notes and
the Class A-7 Notes.
"Reset Rate Notes Maturity Date" means the Class A-5 Maturity Date, the
Class A-6 Maturity Date and the Class A-7 Maturity Date, as applicable.
"Responsible Officer" means, with respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee, including
any Vice President, Assistant Vice President, Assistant Treasurer, Assistant
Secretary, or any other officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above designated officers,
with direct responsibility for the administration of the Indenture and the other
Basic Documents on behalf of the Indenture Trustee and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
"Rule 144A" means Rule 144A promulgated under the Act.
Appendix A-1-31
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor rating agency.
"Sale Agreement" means the Sale Agreement dated as of October 30, 2003,
among the Eligible Lender Trustee on behalf of the Trust, the Trust, the Interim
Eligible Lender Trustee and the Depositor.
"Xxxxxx Xxx" means the Student Loan Marketing Association.
"Schedule of Trust Student Loans" means the listing of the Trust
Student Loans set forth in Schedule A to the Indenture and the Xxxx of Sale
(which Schedule may be in the form of microfiche).
"Schedule Replacement Order" means an Issuer Order replacing Schedule A
to the related class of Reset Rate Notes to be delivered with respect to the
related Reset Date.
"Servicer" means Xxxxxx Xxx Servicing L.P., in its capacity as servicer
of the Trust Student Loans, or any successor thereto in such capacity in
accordance with the Servicing Agreement.
"Servicer Default" means an event specified in Section 5.1 of the
Servicing Agreement.
"Servicer Distribution Date" has the meaning specified in the Servicing
Agreement.
"Servicer's Report" means any report of the Servicer delivered pursuant
to Section 3.1(a) of the Administration Agreement, substantially in the form
acceptable to the Administrator.
"Servicing Agreement" means the Servicing Agreement dated as of October
30, 2003, among the Trust, the Eligible Lender Trustee, the Servicer, the
Administrator and the Indenture Trustee.
"Servicing Fee" has the meaning specified in Attachment A to the
Servicing Agreement.
"Special Allowance Payments" means payments, designated as such,
consisting of effective interest subsidies by the Department in respect of the
Trust Student Loans to the Eligible Lender Trustee on behalf of the Trust in
accordance with the Higher Education Act.
"Specified Reserve Account Balance" for any Distribution Date means the
greater of:
(a) 0.25% of the Pool Balance as of the close of business
on the last day of the related Collection Period; and
(b) $3,008,024;
provided that in no event will that balance exceed the Outstanding Amount. For
these purposes, as to any class of Reset Rate Notes then bearing a fixed rate of
interest, the Outstanding Amount of that class of Reset Rate Notes will be
reduced by any amounts (less any Investment Earnings) on deposit in the
Accumulation Account for that class.
Appendix A-1-32
"Spread" means the percentage, determined by the Remarketing Agents on
the related Spread Determination Date, with respect to a class of Reset Rate
Notes that is to bear a floating rate of interest, in excess of or below the
applicable interest rate Index that will be applicable to each class of Reset
Rate Notes during any Reset Period after the initial Reset Period so as to
result in an interest rate that, in the reasonable opinion of the Remarketing
Agents, will enable all of the tendered Reset Rate Notes of the applicable class
to be remarketed by the Remarketing Agents at 100% of the Outstanding Amount of
such Reset Rate Notes.
"Spread Determination Date" means, for each class of Reset Rate Notes,
not later than 3:00 p.m., New York City time, on the third Business Day prior to
the applicable Reset Date.
"Spread Determination Notice" means the notice delivered by the
Remarketing Agents to the Noteholders of a class of Reset Rate Notes, the
Indenture Trustee, the Rating Agencies, the Clearing Agencies and, if that class
of Reset Rate Notes is then listed on the Luxembourg Stock Exchange, the
Luxembourg Stock Exchange on each related Spread Determination Date containing
the information set forth in the Reset Rate Note Procedures (Appendix A-2 to the
Indenture).
"State" means any one of the 00 Xxxxxx xx xxx Xxxxxx Xxxxxx xx Xxxxxxx
or the District of Columbia.
"Stepdown Date" means the earlier to occur of (i) the December 2008
Distribution Date or (2) the first date on which no Class A Notes remain
Outstanding.
"Student Loans" means education loans to students and parents of
students under the Federal Family Education Loan Program.
"Successor Administrator" has the meaning specified in Section 3.7(e)
of the Indenture.
"Successor Servicer" has the meaning specified in Section 3.7(e) of the
Indenture.
"Supplement" means the SLM Student Loan Trust 2003-11 Administration
Agreement Supplement dated October 30, 2003, to Master Administration Agreement
dated as of May 1, 1997, among the Depositor, the Servicer, the Trust, the
Eligible Lender Trustee, the Indenture Trustee and the Administrator.
"Supplemental Interest Account" means each account designated as such,
established and maintained pursuant to Section 2.3(k) of the Administration
Agreement.
"Supplemental Interest Account Deposit Amount" means, with respect to
each class of Reset Rate Notes then in fixed rate mode, and for any Distribution
Date, the lesser of:
(a) the product of:
(1) the difference between (x) the weighted average of
the LIBOR-based rates (as determined for the Accrual Period
commencing on that Distribution Date) that will be payable by
the Trust to the related Swap Counterparty on the next
Appendix A-1-33
Distribution Date, and (y) an assumed rate of Investment
Earnings that satisfies the Rating Agency Condition,
(2) the amount on deposit in the related Accumulation
Account immediately after that Distribution Date, and
(3) the actual number of days from that Distribution Date
to the next related Reset Date for the related class of Reset
Rate Notes, divided by 360; and
(b) an amount that satisfies the Rating Agency Condition.
"Supplemental Remarketing Agency Agreement" means each agreement,
substantially in the form of Appendix C to the Remarketing Agreement to be
entered into on each Spread Determination Date (unless the Call Option has been
exercised or a Failed Remarketing has been declared) among the Remarketing
Agents, the Administrator and the Trust.
"Swap Agreement" means the applicable ISDA master agreement, and each
related swap schedule and/or Swap Confirmation pursuant to the terms and
conditions set forth in the Reset Rate Note Procedures, with respect to (i) each
Interest Rate Swap Agreement to be entered into from time to time by the
Administrator or the Eligible Lender Trustee in either case solely on behalf of
the Trust and an Eligible Swap Counterparty, and (ii) the Interest Rate Cap
Agreement.
"Swap Confirmation" means each swap confirmation relating to a Swap
Agreement.
"Swap Counterparty" means each Eligible Swap Counterparty from time to
time party to a Swap Agreement, each Initial Interest Rate Swap Counterparty
(with respect to the Initial Interest Rate Swap Agreements) and Xxxxxx Mae (with
respect to the Interest Rate Cap Agreement).
"Swap Interest Payments" means, with respect to each Distribution Date,
the amount payable to the related Swap Counterparty by the Trust as a quarterly
premium payment pursuant to the related Swap Agreement.
"Swap Payments" means, with respect to each Distribution Date, the
amount, if any, payable to a Swap Counterparty by the Trust for such date,
including amounts due and unpaid from prior Distribution Dates (other than Swap
Termination Payments), as specified in the applicable Swap Agreement.
"Swap Receipts" means, with respect to each Distribution Date, the
amount required to be received from the related Swap Counterparty by the Trust
for such date (other than Swap Termination Payments), as specified in the
related Swap Agreement.
"Swap Termination Date" means the date on which Swap Agreement
terminates in accordance with its terms, which with respect to any Initial
Interest Rate Swap Agreement is scheduled to be the related Initial Reset Date
for the related class of Reset Rate Notes.
"Swap Termination Payments" shall have the meaning set forth in each
Swap Agreement.
Appendix A-1-34
"Telerate Page 248" means the display page so designated on the
Moneyline Telerate Service (or such other page as may replace that page on that
service for the purpose of displaying comparable rates or prices).
"Telerate Page 3750" means the display page so designated on the
Moneyline Telerate Service (or such other page as may replace that page on that
service for the purpose of displaying comparable rates or prices).
"Telerate Page 7051" means the display page so designated on the
Moneyline Telerate Service (or such other page as may replace that page on that
service for the purpose of displaying comparable rates or prices).
"Telerate Page 7052" means the display page so designated on the
Moneyline Telerate Service (or such other page as may replace that page on that
service for the purpose of displaying comparable rates or prices).
"Three-Month LIBOR", "Four-Month LIBOR" and "Five-Month LIBOR" means,
with respect to any Accrual Period, the London interbank offered rate for
deposits in U.S. Dollars having the Index Maturity which appears on Telerate
Page 3750 as of 11:00 a.m. London time, on the related LIBOR Determination Date.
If this rate does not appear on Telerate Page 3750, the rate for that day will
be determined on the basis of the rates at which deposits in U.S. Dollars,
having the Index Maturity and in a principal amount of not less than U.S.
$1,000,000, are offered at approximately 11:00 a.m., London time, on that LIBOR
Determination Date, to prime banks in the London interbank market by the
Reference Banks. The Administrator will request the principal London office of
each Reference Bank to provide a quotation of its rate. If the Reference Banks
provide at least two quotations, the rate for that day will be the arithmetic
mean of the quotations. If the Reference Banks provide fewer than two
quotations, the rate for that day will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Administrator, at
approximately 11:00 a.m., New York time, on that LIBOR Determination Date, for
loans in U.S. Dollars to leading European banks having the Index Maturity and in
a principal amount of not less than U.S. $1,000,000. If the banks selected as
described above are not providing quotations, LIBOR in effect for the applicable
Accrual Period will be LIBOR, for the specified maturity in effect for the
previous Accrual Period.
"Transfer Date" has the meaning specified in Section 5.2(a) of the
Administration Agreement.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References in any document or
instrument to specific provisions of proposed or temporary regulations shall
include analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"Trigger Event" means, on any Distribution Date while any of the Class
A Notes are outstanding, the Outstanding Amount of the Notes, less any amounts
(other than Investment Earnings) on deposit in any Accumulation Account, after
giving effect to distributions to be made on that Distribution Date, would
exceed the Adjusted Pool Balance as of the end of the related Collection Period.
Appendix A-1-35
"Trust" means SLM Student Loan Trust 2003-11, a Delaware statutory
trust established pursuant to the Trust Agreement.
"Trust Account Property" means the Trust Accounts, all cash and
investments held from time to time in any Trust Account (whether in the form of
deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), including the Reserve Account Initial Deposit and the
Capitalized Interest Account Initial Deposit and all earnings on and proceeds of
the foregoing.
"Trust Accounts" has the meaning specified in Section 2.3(b) of the
Administration Agreement.
"Trust Agreement" means the Trust Agreement, dated as of October 1,
2003 among the Depositor, the Eligible Lender Trustee and the Indenture Trustee.
"Trust Auction Date" has the meaning specified in Section 4.4 of the
Indenture.
"Trust Estate" means all right, title and interest of the Trust (or the
Eligible Lender Trustee on behalf of the Trust) in and to the property and
rights sold, transferred and assigned to the Trust pursuant to the Sale
Agreement, all funds on deposit from time to time in the Trust Accounts and all
other property of the Trust from time to time, including any rights of the
Eligible Lender Trustee and the Trust pursuant to the Trust Agreement, the
Administration Agreement, the Servicing Agreement, any Interest Rate Swap
Agreements and the Interest Rate Cap Agreement.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as
in force on the date hereof, unless otherwise specifically provided.
"Trust Student Loan" means any student loan that is listed on the
Schedule of Trust Student Loans on the Closing Date, plus any student loan that
is permissibly substituted for a Trust Student Loan by the Depositor pursuant to
Sections 6 of the Sale Agreement or by the Servicer pursuant to Section 3.5 of
the Servicing Agreement, but shall not include any Purchased Student Loan
following receipt by or on behalf of the Trust of the Purchase Amount with
respect thereto or any Liquidated Student Loan following receipt by or on behalf
of the Trust of Liquidation Proceeds with respect thereto or following such
Liquidated Student Loan having otherwise been written off by the Servicer.
"Trust Student Loan Files" means the documents specified in Section 2.1
of the Servicing Agreement.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from time
to time.
Appendix X-0-00
XXXXXXXX X-0
RESET RATE NOTE PROCEDURES
Section 1. Definitions: All terms which are defined in Appendix A-1
shall have the same meanings in this Appendix A-2.
Section 2. Interest Rates; Principal Payments: (a) Each class of Reset
Rate Notes will bear interest for each Reset Period at the rate set forth on
Schedule A attached to the related Reset Rate Note as determined in accordance
with Section 2(b) below; provided, that for the initial Reset Period, each class
of the Reset Rate Notes will bear interest from the Closing Date through and
including the related Initial Reset Date at the rate set forth in the first
sentence of the definitions of "Class A-5 Rate," "Class A-6 Rate" and "Class A-7
Rate," respectively. Interest on each class of Reset Rate Notes shall be payable
by the Trust with respect to each Distribution Date at the priority level set
forth in Section 2.8(d) of the Administration Agreement; provided, that if
interest due to a class of Reset Rate Notes is payable through a Swap Agreement,
the related Swap Interest Payments will be payable by the Trust to the related
Swap Counterparty, and by the Swap Counterparty to the Trust (for payment to the
related Reset Rate Noteholders), as described in Section 10 below.
(b) After the initial Reset Period, each class of Reset Rate Notes
may be reset to bear either a fixed or floating rate of interest at the option
of the Remarketing Agents, in consultation with the Administrator. The interest
rate of each class of Reset Rate Notes will be reset as of each related Reset
Date as determined by (i) the Remarketing Agents, in consultation with the
Administrator, with respect to (A) the length of the Reset Period, (B) whether
the rate is fixed or floating and (x) if floating, the applicable Index, or (y)
if fixed, the applicable pricing benchmark, (C) the applicable Day Count Basis,
(D) the applicable Interest Rate Determination Dates within each Accrual Period,
(E) the interval between Interest Rate Change Dates during each Accrual Period
and (F) if applicable, the related All Hold Rate, and (ii) the Remarketing
Agents (in their sole determination) with respect to the setting of the (A)
fixed rate of interest or (B) Spread to the chosen Index, as applicable.
(c) In the event that a class of Reset Rate Notes is reset (i) to
bear (or continue to bear) interest at a fixed rate or (ii) to bear (or continue
to bear) a floating rate of interest, and the Remarketing Agents, in
consultation with the Administrator determine that it would be in the best
interest of the Trust, based on existing market conditions, to enter into one or
more Swap Agreements, the Administrator will be responsible for arranging, on
behalf of the Trust, one or more Swap Agreements to hedge the basis risk and,
together with the Remarketing Agents, for selecting the Swap Counterparties
thereto in accordance with the procedures set forth in Section 10(b) below. No
class of Reset Rate Notes will be reset (or continue) to bear interest at a
floating rate that is not based on LIBOR or a Commercial Paper Rate or a fixed
rate unless one or more Swap Agreements are entered into as of the related Reset
Date that results in the Rating Agency Condition being satisfied. In connection
with each Swap Agreement, the Remarketing Agents shall solicit bids from
Eligible Swap Counterparties in accordance with the procedures set forth in
Section 10(d) below.
Appendix A-2-1
(d) Each class of Reset Rate Notes that bears interest at (i) a
floating rate shall be entitled to receive payments of principal in reduction of
its Outstanding Amount on each Distribution Date at the priority level set forth
in Section 2.8(f) of the Administration Agreement and (ii) a fixed rate shall be
entitled to receive allocations of principal at the priority level set forth in
Section 2.8(f) of the Administration Agreement on each Distribution Date,
provided, however, that such amounts shall not be paid in reduction of the
Outstanding Amount of such class of Reset Rate Notes; instead all such amounts
shall be deposited into the related Accumulation Account for payment to the
related Reset Rate Noteholders or Swap Counterparty, as applicable, on or about
the next related Reset Date as set forth in Section 11(a) below.
Section 3. End of Reset Period Notice: (a) Unless the holder of the
related Call Option has delivered the related Call Option Notice, the
Administrator, not less than fifteen nor more than thirty calendar days prior to
any Remarketing Terms Determination Date, will (i) give written notice
(including facsimile or other electronic transmission, if permitted pursuant to
the recipient's standard procedures) to the applicable Clearing Agencies and the
Luxembourg Stock Exchange (for so long as the related class of Reset Rate Notes
is listed on such exchange), with a copy to the Indenture Trustee, notifying
them of the upcoming Reset Date and stating whether tender is deemed mandatory
or optional for the applicable class of Reset Rate Notes on the related Reset
Date (the Initial Reset Date Notice"), (ii) request that each Clearing Agency
notify its participants of (1) the contents of the Initial Reset Date Notice,
(2) the Remarketing Terms Notice to be given on the Remarketing Terms
Determination Date pursuant to Section 4(d) below, (3) the Spread Determination
Notice to be given on the Spread Determination Date pursuant to Section 9(e)
below, and (4) if applicable, the procedures concerning the timely delivery of a
Hold Notice pursuant to Section 8 below that must be followed if any beneficial
owner of a class of Reset Rate Note wishes to retain its Reset Rate Notes. For
so long as the related class of Reset Rate Notes is listed on the Luxembourg
Stock Exchange, a copy of such notices will be sent to the Luxembourg Stock
Exchange and each of the Remarketing Terms Notice and the Spread Determination
Notice will also be published in a leading newspaper having general circulation
in Luxembourg (which is expected to be The Luxemburger Wort) and (iii) initiate
discussions with representatives of the Luxembourg Stock Exchange regarding an
addendum to the Private Placement Memorandum dated October 21, 2003, as required
by Section 7(f)(i) of the Remarketing Agreement.
(b) The Administrator will also include in the Initial Reset Date
Notice the names and contact information of the Luxembourg listing agent, if
applicable, and any applicable Remarketing Agents confirmed or appointed by the
Administrator, or if no Remarketing Agents have then been so chosen, the
Administrator will provide adequate contact information for Noteholders to
receive information regarding the upcoming Reset Date.
(c) If the related Clearing Agency or its respective nominee, as
applicable, is no longer the holder of record of the related class of Reset Rate
Notes, the Administrator, or the applicable Remarketing Agents on its behalf,
will send the related Reset Rate Noteholders, with a copy to the Indenture
Trustee and the Luxembourg listing agent, as applicable, the required notices
setting forth the information in Sections 3(a) and 3(b) above not less than
fifteen nor more than thirty calendar days prior to any Remarketing Terms
Determination Date. In addition, in the event that Definitive Notes evidencing
an interest in any class of Reset Rate Notes are
Appendix A-2-2
issued, the Administrator shall cause the Note Registrar to provide to the
relevant Reset Rate Noteholders and the Luxembourg listing agent, as applicable,
any additional procedures applicable to such Reset Rate Notes while in
definitive form.
Section 4. Remarketing Terms Determination Date: (a) Subject to the
provisions of the Remarketing Agreement, prior to the Remarketing Terms
Determination Date, and unless the holder of the Call Option has delivered the
related Call Option Notice, the Administrator shall re-affirm the capability of
the initial Remarketing Agents to perform under the Remarketing Agreement,
and/or enter into new remarketing agreements with other or additional
remarketing agents, who shall function as the Remarketing Agents with respect to
the related Reset Date. On each Remarketing Terms Determination Date, the Trust,
the Administrator and the Remarketing Agents will enter into a Remarketing
Agency Agreement for the remarketing of the related class of Reset Rate Notes.
(b) [Reserved].
(c) Unless the holder of the Call Option has delivered the related
Call Option Notice, on or prior to the Remarketing Terms Determination Date the
Remarketing Agents will notify the related Reset Rate Noteholders whether tender
is deemed mandatory or optional and, in consultation with the Administrator,
will establish the following terms for the related class of Reset Rate Notes to
be applicable during the immediately following Reset Period:
(i) the expected weighted average life of that class of
Reset Rate Notes, based on prepayment and other assumptions customary
for comparable securities;
(ii) the name and contact information of the Remarketing
Agents;
(iii) the next Reset Date and length of such Reset Period;
(iv) the interest rate mode (i.e., fixed rate or floating
rate);
(v) if in floating rate mode, the applicable Index;
(vi) if in floating rate mode, the interval between
Interest Rate Change Dates;
(vii) if in floating rate mode, the applicable Interest
Rate Determination Date;
(viii) if in fixed rate mode, the applicable fixed rate
pricing benchmark;
(ix) if in fixed rate mode, the identities of the Eligible
Swap Counterparties from which bids will be solicited;
(x) if in floating rate mode, whether there will be a
related Swap Agreement and, if so, the identities of the Eligible Swap
Counterparties from which bids will be solicited;
(xi) the applicable Day Count Basis;
Appendix A-2-3
(xii) the related All Hold Rate, if applicable;
(xiii) if Definitive Notes are to be issued, the procedures
for delivery and exchange of Definitive Notes and for dealing with lost
or mutilated notes; and
(xiv) any other relevant terms incidental to the foregoing
(other than the related Spread or fixed rate of interest, as
applicable) for the next Reset Period.
provided, that any interest rate mode, other than a floating rate based on LIBOR
or a Commercial Paper Rate, will require that the Rating Agency Condition be
satisfied prior to the delivery of the related Remarketing Terms Notice.
(d) The Remarketing Agents will communicate all of the information
established in Section 4(c) above in the Remarketing Terms Notice required to be
given in writing (including facsimile or other electronic transmission if in
accordance with the respective recipient's standard procedures) to each Clearing
Agency or the related Reset Rate Noteholders, as applicable, the Indenture
Trustee and the Rating Agencies on the related Remarketing Terms Determination
Date.
(e) In addition, prior to the Remarketing Terms Determination
Date, the Administrator shall cause the Schedule Replacement Order with respect
to the related Reset Rate Notes to be delivered to the Indenture Trustee, the
Clearing Agencies and, if the related class of Reset Rate Notes is then listed
on the Luxembourg Stock Exchange, the Luxembourg listing agent.
Section 5. All Hold Rate: (a) On each Remarketing Terms Determination
Date for a class of Reset Rate Notes, the Remarketing Agents, in consultation
with the Administrator, will establish the related All Hold Rate for such class.
(b) The All Hold Rate will only be applicable if 100% of the Reset
Rate Noteholders of a class deliver timely Hold Notices wherein they elect to
hold their Reset Rate Notes for the next Reset Period. If applicable, the
related interest rate for that class of Reset Rate Notes during the immediately
following Reset Period will not be less than the All Hold Rate. If the rate of
interest using the Spread or fixed rate of interest established on the Spread
Determination Date is higher than the All Hold Rate, then upon a successful
remarketing of the related class of Reset Rate Notes, all related Reset Rate
Noteholders who delivered a Hold Notice agreeing to be subject to the All Hold
Rate instead will be entitled to the higher rate of interest during the
immediately following Reset Period.
Section 6. Failed Remarketing: (a) With respect to each Reset Date for
which the holder of the Call Option does not deliver the related Call Option
Notice, a Failed Remarketing will be declared by the Remarketing Agents and the
provisions of this Section 6 will apply if any of the conditions set forth in
the definition of "Failed Remarketing" are applicable. In order to prevent the
declaration of a Failed Remarketing, the Remarketing Agents will have the
option, but not the obligation, to purchase any Reset Rate Notes tendered that
they are not otherwise able to remarket or with respect to which a committed
purchaser defaults on their purchase obligations.
Appendix A-2-4
(b) At any time a Failed Remarketing is declared: (i) all related
Reset Rate Notes will be retained by the applicable Noteholders on the related
Reset Date, regardless of any deemed mandatory or voluntary tenders made to the
Remarketing Agents, (ii) the Failed Remarketing Rate for such class of Reset
Rate Notes will apply for the related Reset Period and (iii) a Reset Period of
three months will be established.
(c) If there is a Failed Remarketing of a class of Reset Rate
Notes, the related Reset Rate Noteholders shall not be entitled to exercise any
remedies as a result of the failure of their class of Reset Rate Notes to be
remarketed on the related Reset Date.
Section 7. Call Option: (a) With respect to each Reset Date, the
Depositor, as the initial holder of the Excess Distribution Certificate, is
hereby granted the Call Option for the purchase of not less than 100% of that
class of Reset Rate Notes, exercisable at a price equal to 100% of the
Outstanding Amount of that class, less all amounts distributed to the related
Reset Rate Noteholders as a payment of principal with respect to the related
Distribution Date, plus any accrued and unpaid interest not paid by the Trust
with respect to the applicable Reset Date.
(b) The Depositor, as the initial holder of the Excess
Distribution Certificate, effective as of the Closing Date, hereby transfers all
of its right title and interest in and to the Call Option to SLM Education
Credit Management Corporation, which upon receipt thereof will dividend all of
its right, title and interest in and to the Call Option to SLM Corporation, and
in acceptance of such transfer SLM Corporation also hereby agrees to abide by
all terms and conditions hereunder with respect to the Call Option as set forth
in these Reset Rate Note Procedures.
(c) SLM Corporation may further transfer ownership of the Call
Option at any time to one of its subsidiaries, provided that such permitted
transferee has at no time in the past owned, and is not obligated under either
the Purchase Agreement or the Sale Agreement to transfer, an interest in any of
the Trust Student Loans.
(d) The Call Option may be exercised with respect to each class of
Reset Rate Notes at any time on or prior to the determination of the related
Spread or fixed rate or the declaration of a Failed Remarketing, as applicable,
on the related Spread Determination Date by delivery of a Call Option Notice;
provided that the Call Option may not be exercised before the day following the
last Distribution Date immediately preceding the next applicable Reset Date. In
addition, for so long as the related Class of Reset Rate Notes is listed on the
Luxembourg Stock Exchange, the holder of the Call Option shall cause a notice of
the exercise of the Call Option to be published in a leading newspaper having
general circulation in Luxembourg (which is expected to be The Luxemburger
Wort). Once written notice of the exercise of the Call Option is given, such
exercise may not be rescinded.
(e) All amounts due and owing to the related Reset Rate
Noteholders shall be remitted on or before the related Reset Date by the holder
of the Call Option in accordance with the standard procedures established by the
Clearing Agencies for transfer of securities to ensure timely payment of
principal to the Reset Rate Noteholders on the Reset Date.
Appendix A-2-5
(f) If the Call Option is exercised with respect to any class of
Reset Rate Notes, (i) the interest rate on that class will be the Call Rate, and
(ii) a Reset Period of three months will be established. At the end of such
three month Reset Period, the holder of the Call Option may either remarket the
related class of Reset Rate Notes pursuant to the remarketing procedures set
forth herein and in the Remarketing Agreement, or retain that class for one or
more successive three-month Reset Periods at the then-current Call Rate. In the
event the holder of the Call Option chooses to remarket any class of Reset Rate
Notes, such holder shall be solely responsible for all costs and expenses
relating to the preparation of any new offering document and any other related
costs and expenses associated with such remarketing, other than the fees of the
Remarketing Agents, as more fully set forth in Section 3 of the Remarketing
Agreement.
(g) Other than in connection with the exercise of a Call Option,
neither SLM Corporation, Xxxxxx Xxx, the Trust or any of their affiliates shall
have the ability to purchase any Reset Rate Notes tendered to the Remarketing
Agents.
Section 8. Hold Notice: The related Reset Rate Noteholders will have
the option to deliver a Hold Notice to any Remarketing Agent setting forth their
desire to hold their Reset Rate Notes for the next Reset Period at a rate of
interest not less than the All Hold Rate and on the terms set forth in the
related Remarketing Terms Notice, at any time on or after the Remarketing Terms
Determination Date until the Notice Date. Such Hold Notice may be delivered as
an oral statement to a Remarketing Agent, if subsequently confirmed in writing
within 24 hours, which confirmation may be in the form of an e-mail if timely
received by the applicable Remarketing Agent. If a Reset Rate Noteholder does
not timely deliver a Hold Notice to a Remarketing Agent (such Hold Notice not to
be considered delivered until actually received by such Remarketing Agent), that
Reset Rate Noteholder will be deemed to have tendered for remarketing 100% of
the Outstanding Amount of its related class of Reset Rate Notes. Any duly
delivered Hold Notice will be irrevocable, but will be subject to a mandatory
tender of the applicable Reset Rate Notes pursuant to any exercise of the
related Call Option. All of the Reset Rate Notes of an applicable class, whether
tendered or not, will bear interest during any Reset Period on the same terms.
Section 9. Spread Determination Date: (a) On each Spread Determination
Date, unless a Failed Remarketing has been declared or the holder of the Call
Option has delivered the Call Option Notice, the Administrator, the Trust and
the Remarketing Agents will enter into a Supplemental Remarketing Agency
Agreement.
(b) If pursuant to the Remarketing Terms Notice, the Remarketing
Agents, in consultation with the Administrator, have determined that a class of
Reset Rate Notes is to be reset to bear a fixed rate of interest, then the
applicable fixed rate of interest for the corresponding Reset Period will be
determined on the Spread Determination Date by adding (i) the applicable spread
as determined by the Remarketing Agents on the Spread Determination Date and
(ii) the yield to maturity on the Spread Determination Date of the applicable
fixed rate pricing benchmark, selected by the Remarketing Agents, as having an
expected weighted average life based on a scheduled maturity at the next Reset
Date, which would be used in accordance with customary financial practice in
pricing new issues of asset-backed securities of comparable average life;
provided that such fixed rate of interest will in no event be lower than the
related All Hold Rate, if applicable. The Remarketing Agents shall determine the
applicable
Appendix A-2-6
fixed rate of interest for such class of Reset Rate Notes (by reference to the
applicable fixed rate pricing benchmark plus or minus the spread determined on
the Remarketing Terms Determination Date) on each Spread Determination Date
irrespective of whether no remarketing will occur as the result of the
application of the All Hold Rate, if applicable. In addition, on the related
Spread Determination Date, the Remarketing Agents, in consultation with the
Administrator, shall determine the Supplemental Interest Account Deposit Amount,
if any, for that class.
(c) If pursuant to the Remarketing Terms Notice, the Remarketing
Agents, in consultation with the Administrator, have determined that a class of
Reset Rate Notes is to be reset to bear a floating rate of interest, then, on
the related Spread Determination Date, the Remarketing Agents will establish the
applicable Spread to be added or subtracted from the applicable Index; provided
that such floating rate of interest will in no event be lower than the related
All Hold Rate, if applicable.
(d) If required pursuant to Section 2(c) above, on the related
Reset Date the Trust shall enter into one or additional Swap Agreements, each
with an Eligible Swap Counterparty selected pursuant to the procedures set forth
in Section 10(b) below.
(e) On or immediately following the Spread Determination Date, the
Remarketing Agents will communicate in writing (including facsimile or other
electronic transmission if in accordance with each Clearing Agency's standard
procedures) the contents of the Spread Determination Notice to each Clearing
Agency (and the Luxembourg Stock Exchange if the related class of Reset Rate
Notes are then listed on such exchange) or the related Reset Rate Noteholders if
Definitive Notes have been issued, as applicable, with instructions to
distribute such notices to its related participants, or to the related Reset
Rate Noteholders, as applicable, the Indenture Trustee and the Rating Agencies.
The Spread Determination Notice will contain: (i) the determined Spread or fixed
rate of interest, as the case may be, or, if applicable, a statement that the
All Hold Rate or the Failed Remarketing Rate will be in effect for the
immediately following Reset Period, (ii) if applicable, the identity of any
selected Swap Counterparty or Counterparties, (iii) if applicable, the floating
rate (or rates) of interest to be due to each selected Swap Counterparty with
respect to each Distribution Date during the immediately following Reset Period
and (iv) any other information that the Administrator or the Remarketing Agents
deem applicable. In addition, if required for the immediately following Reset
Period, on or before the related Spread Determination Date the Administrator
will arrange for new or additional securities identification codes to be
obtained as required.
Section 10. Swap Agreements:
(a) If a Swap Agreement is to be entered into for a class of Reset
Rate Notes pursuant to Sections 2(c) and 9(d) above, then the Administrator will
enter into (not in its individual capacity, but solely as Administrator on
behalf of the Trust) or will instruct the Eligible Lender Trustee to enter into
(not in its individual capacity, but solely as Eligible Lender Trustee), an
Interest Swap Agreement for the next Reset Period to facilitate the Trust's
ability to pay applicable interest at the related interest rate.
Appendix A-2-7
(i) Each Swap Counterparty which is party to the related
Interest Swap Agreement will be entitled to receive on each
Distribution Date, an interest rate of Three-Month LIBOR, plus or minus
a spread, as determined from the bidding process described in Section
10(b) below, multiplied by the Outstanding Amount of the related class
of Reset Rate Notes and multiplied by a fraction determined by the
number of days in the applicable Accrual Period and the applicable Day
Count Basis.
(ii) In addition, each related Swap Counterparty which is
a party to the related Interest Swap Agreement will be obligated to pay
to the Trust on each Distribution Date, the applicable rate of interest
on the related class of Reset Rate Notes multiplied by the Outstanding
Amount of the related class of Reset Rate Notes and multiplied by a
fraction determined by the number of days in the applicable Accrual
Period and the applicable Day Count Basis.
(b) Other than with respect to any Initial Swap Agreements, the
applicable Remarketing Agents, in consultation with the Administrator, in
determining the Swap Counterparty to the required Swap Agreement, will solicit
bids from at least three Eligible Swap Counterparties and will select the lowest
of these bids to provide the interest rate swap. If the lowest bidder specifies
a notional amount that is less than the Outstanding Amount of the related class
of Reset Rate Notes, the applicable Remarketing Agents, in consultation with the
Administrator, may select more than one Eligible Swap Counterparty, but only to
the extent that such additional Eligible Swap Counterparties have provided the
next lowest received bid or bids, and enter into more than one Swap Agreement
that result in the Rating Agency Condition being satisfied. On or before the
Spread Determination Date, the Remarketing Agents, in consultation with the
Administrator, will select the Swap Counterparty or Counterparties for the
upcoming Reset Period.
(c) Other than with respect to the Initial Swap Agreements, it is
a condition precedent to the entering into of any Swap Agreement and the setting
of the amount to be paid to the related Swap Counterparty that the Rating Agency
Condition is satisfied. No Swap Agreement will be entered into or caused to be
entered into by the Trust, the Administrator on its behalf, the Remarketing
Agents, for any Reset Period where either the related Call Option has been
exercised or a Failed Remarketing has been declared.
(d) Each such Swap Agreement, will terminate at the earliest to
occur of (i) the next succeeding Reset Date (ii) the Distribution Date on which
the Outstanding Amount of the Reset Rate Notes is reduced to zero (including as
the result of the optional purchase of the remaining Trust Student Loans by the
Servicer or an auction of the Trust Student Loans by the Indenture Trustee) or
(iii) the Maturity Date of the related class of Reset Rate Notes.
Section 11. Accumulation Account; Supplemental Interest Account: (a)
If, on any Distribution Date, principal would be payable to a class of Reset
Rate Notes then bearing interest at a fixed rate (including without limitation
any Class of Reset Rate Notes that bears interest at a fixed rate during the
initial Reset Period), that principal (subject to sufficient Available Funds
therefor) will be allocated to that class of Reset Rate Notes and deposited into
the related Accumulation Account, where it will remain until the next Reset Date
for that class, unless an
Appendix A-2-8
Event of Default under the Indenture or a sale of the Trust Estate pursuant to
Section 6.1 of the Administration Agreement has occurred (in which case the
Indenture Trustee will distribute all sums on deposit therein (exclusive of
Investment Earnings) to the related Reset Rate Noteholders in accordance with
the provisions of Section 5.4(b) of the Indenture or Section 6.1 of the
Administration Agreement, as applicable).
(b) On each Reset Date for a class of Reset Rate Notes that bore
interest at a fixed rate during the preceding Reset Period (including without
limitation, on the related Initial Reset Date for any Class of Reset Rate Notes
that bore interest at a fixed rate on the Closing Date), all sums, if any, then
on deposit in the related Accumulation Account, including any allocation of
principal made on the same date, but less any Investment Earnings, will be
distributed by the Indenture Trustee, at the direction of the Administrator, as
set forth in Section 2.8 of the Administration Agreement, to the holders of that
class of Reset Rate Notes, as of the related Record Date; provided, that, in the
event on any Distribution Date the amount on deposit in the related Accumulation
Account (excluding any Investment Earnings) would equal the Outstanding Amount
of that class, no additional amounts will be deposited into the related
Accumulation Account and all amounts therein, less any Investment Earnings, will
be distributed by the Indenture Trustee, at the direction of the Administrator,
as set forth in Section 2.8 of the Administration Agreement, on the next related
Reset Date to the related Reset Rate Noteholders, and on such Reset Date that
class of Reset Rate Notes will no longer be Outstanding. Amounts on deposit in
an Accumulation Account (exclusive of Investment Earnings) may be used only to
pay principal on the related class of Reset Rate Notes and for no other purpose.
On each Distribution Date, all Investment Earnings on deposit in each
Accumulation Account will be withdrawn by the Indenture Trustee, at the
direction of the Administrator, as set forth in Section 2.10(c)(iv) of the
Administration Agreement, and deposited into the Collection Account.
(c) The Indenture Trustee, subject to sufficient available funds
therefor, at the direction of the Administrator and pursuant to Section
2.10(d)(ii) of the Administration Agreement, will deposit into any Supplemental
Interest Account, the related Supplemental Interest Account Deposit Amount. On
each Distribution Date, all sums (which shall include Investment Earnings) on
deposit in each Supplemental Interest Account will be withdrawn by the Indenture
Trustee, at the direction of the Administrator, as set forth in Section
2.10(d)(iii) of the Administration Agreement, and deposited into the Collection
Account.
Section 12. Remarketing Agents; Remarketing Fee Account: (a) The
initial Remarketing Agents, appointed pursuant to the terms of the Remarketing
Agreement, are Banc of America Securities LLC, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated and Xxxxxx Xxxxxxx & Co. Incorporated. The terms and
conditions of the Remarketing Agreement will govern the duties and obligations
of the Remarketing Agents. The Administrator, the Trust and the Remarketing
Agents will enter into on each related (A) Remarketing Terms Determination Date,
a Remarketing Agency Agreement, in form and substance substantially the same as
Appendix B to the Remarketing Agreement, unless (i) a Failed Remarketing is
declared, or (ii) the holder of the Call Option has delivered the related Call
Option Notice on or prior to such date; and (B) Spread Determination Date, a
Supplemental Remarketing Agency Agreement, in form and substance substantially
the same as Appendix C to the Remarketing Agreement, unless (i) a Failed
Remarketing is declared, (ii) the holder of the Call Option has delivered the
related
Appendix A-2-9
Call Option Notice on or prior to such date or (iii) if applicable, 100% of the
related Reset Rate Noteholders have timely delivered a Hold Notice and the All
Hold Rate will apply for the next related Reset Period.
(b) Excluding all Reset Rate Notes of a class for which a
Remarketing Agent has received a timely delivered Hold Notice, if applicable (or
if the holder of the Call Option has delivered the related Call Option Notice),
on the Reset Date that commences each Reset Period, each related Reset Rate Note
will be automatically tendered, or deemed tendered, to the relevant Remarketing
Agent for remarketing by such Remarketing Agent on the Reset Date at 100% of its
Outstanding Amount. If the related class of Reset Rate Notes is held in
book-entry form, 100% of the Outstanding Amount of such Reset Rate Notes will be
paid by the Remarketing Agents in accordance with the standard procedures of the
applicable Clearing Agencies.
(c) The Remarketing Agents will attempt, on a reasonable efforts
basis and in accordance with the terms and conditions of the Remarketing
Agreement and the related Remarketing Agency Agreement, to remarket the tendered
Reset Rate Notes of the applicable class at a price equal to 100% of the
Outstanding Amount of the related class of Reset Rate Notes so tendered.
(d) Each of the Remarketing Agents, in its individual or any other
capacity, may buy, sell, hold and deal in any class of the Reset Rate Notes,
including, but not limited to, purchasing any tendered Reset Rate Notes as part
of the remarketing process. Any Remarketing Agent that owns a Reset Rate Note
may exercise any vote or join in any action which any beneficial owner of such
class may be entitled to exercise or take with like effect as if it did not act
in any capacity under the Remarketing Agreement or Remarketing Agency Agreement.
Any Remarketing Agent, in its individual capacity, either as principal or agent,
may also engage in or have an interest in any financial or other transaction
with the Trust, the Depositor, the Servicer, the Indenture Trustee (in its
individual capacity), the Eligible Lender Trustee (in its individual capacity)
or the Administrator as freely as if it did not act in any capacity under the
Remarketing Agreement or any Remarketing Agency Agreement. No Reset Rate
Noteholder or beneficial owner of any Reset Rate Note will have any rights or
claims against any Remarketing Agent as a result of such Remarketing Agent's not
purchasing any tendered Reset Rate Note, which results in the declaration of a
Failed Remarketing.
(e) Each of the Remarketing Agents will be entitled to receive a
fee in connection with their services rendered for each successful remarketing
of a class of Reset Rate Notes in the amount set forth in the Remarketing
Agreement and the related Remarketing Agency Agreement. Subject to the terms and
conditions set forth in the Remarketing Agreement, the Administrator, in its
sole discretion, may change the Remarketing Agents for any class of Reset Rate
Notes for any Reset Period at any time on or before the related Remarketing
Terms Determination Date. Furthermore, a Remarketing Agent may resign at any
time provided that no resignation may become effective on a date that is later
than 15 Business Days prior to a Remarketing Terms Determination Date.
(f) In accordance with Section 2.3(i) of the Administration
Agreement, on the Closing Date, the Trust will establish the Remarketing Fee
Account as an asset of the Trust in the
Appendix A-2-10
name of the Indenture Trustee for the benefit of the Remarketing Agents and
the related Reset Rate Noteholders. The fees associated with each successful
remarketing will be payable directly to the Remarketing Agents from amounts on
deposit from time to time in the Remarketing Fee Account. On each applicable
Distribution Date, Available Funds will be deposited into the Remarketing Fee
Account, in the priority set forth in Section 2.8(c) of the Administration
Agreement, in an amount up to the Quarterly Funding Amount; provided, that if
the amount on deposit in the Remarketing Fee Account, after the payment of any
remarketing fees therefrom, exceeds the sum of the Reset Period Target Amount
for all classes of Reset Rate Notes, such excess will be withdrawn on the
related Distribution Date, deposited into the Collection Account and included in
Available Funds for that Distribution Date. All Investments Earnings on deposit
in the Remarketing Fee Account will be withdrawn on the next Distribution Date,
deposited into the Collection Account and included in Available Funds for that
Distribution Date. In the event that the fees owed to any Remarketing Agent on a
Reset Date exceeds the amount then on deposit in the Remarketing Fee Account,
such shortfall shall be paid from Available Funds on future Distribution Dates
in the priority set forth in Section 2.8(n) of the Administration Agreement. The
Trust shall also be responsible for certain remarketing costs and expenses to
the extent set forth in Section 3 of the Remarketing Agreement, which shall be
paid on each Distribution Date, to the extent of Available Funds, at the
priority set forth in Section 2.8(o) of the Administration Agreement.
Section 13. Eligible Lender Trustee: The Eligible Lender Trustee is
hereby authorized and directed to execute and deliver, not in its individual
capacity, but solely as Eligible Lender Trustee on behalf of the Trust, the
Remarketing Agreement, any Swap Agreements, and all Remarketing Agency
Agreements as the Administrator, in writing and from time to time, shall
instruct the Eligible Lender Trustee to execute. The Eligible Lender Trustee
shall not be liable to any party, any third party or any Noteholder for any such
actions taken at the written instruction of the Administrator. Notwithstanding
the foregoing, in the event that the Eligible Lender Trustee declines or fails
to execute or deliver any such document, instrument, certificate or agreement as
instructed by the Administrator, the Administrator is hereby authorized, in its
sole discretion, to execute and deliver, not in its individual capacity but
solely as Administrator on behalf of the Trust, all such required documents,
instruments, certificates and agreements. The foregoing authorization shall
represent a limited power of attorney granted by the Trust to the Administrator
to act on its behalf and the Administrator shall not be liable to any party, any
third party or any Noteholder for any such actions taken in good faith and in
accordance with these Reset Rate Note Procedures.
Appendix X-0-00
XXXXXXXX X-0
TRANSFER RESTRICTIONS FOR
THE RESET RATE NOTES
1. Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined in this Appendix A-3
(this "Appendix") are defined in Xxxxxxxx X-0, which also contains rules as to
usage that shall be applicable herein.
2. The Indenture Trustee, as Note Registrar, shall provide for the
registration of Reset Rate Notes and of transfers and exchanges of Reset Rate
Notes pursuant to Section 2.4 of the Indenture.
3. Each class of Reset Rate Notes will be initially represented by
registered notes of such class in global form and shall be issued in the manner
set forth in Sections 2.1, 2.2 and 2.10 of the Indenture. The global notes may
be reissued and represented by Reset Rate Notes of such class in definitive form
pursuant to Section 2.12 of the Indenture.
4. Each purchaser of a class of Reset Rate Notes that represent a
beneficial interest in a global note will be deemed to have represented and
agreed, and each purchaser of a Definitive Note will be required to certify in
writing, that:
(i) the purchaser is a QIB and is acquiring such Reset Rate Notes
for its own account or as a fiduciary or agent for others
(which others also must be QIBs), for investment purposes and
not for distribution in violation of the Act, and it is able
to bear the economic risk of an investment in the Reset Rate
Notes and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of purchasing the Reset Rate Notes;
(ii) the purchaser understands that the Reset Rate Notes are being
offered only in a transaction that does not require
registration under the Act and, if such purchaser decides to
resell or otherwise transfer such Reset Rate Notes, then it
agrees that it will resell or transfer such Reset Rate Notes
only (A) so long as such Reset Rate Notes are eligible for
resale pursuant to Rule 144A, to a person whom the seller
reasonably believes is a QIB acquiring the Reset Rate Notes
for its own account or as a fiduciary or agent for others
(which others must also be QIBs) to whom notice is given that
the resale or other transfer is being made in reliance on Rule
144A, (B) pursuant to an effective registration statement
under the Act or (C) pursuant to another exemption from
registration available under the Act, in each case in
accordance with any applicable United States state securities
or "blue sky" laws; provided, that the agreement of such
purchaser is subject to any requirement of law that the
disposition of the purchaser's property shall at all times be
and remain within the purchaser's control;
(iii) unless the relevant legend set out below has been removed from
the relevant Reset Rate Notes such purchaser shall notify each
transferee of the Reset Rate
Appendix A-3-1
Notes that (A) such Reset Rate Notes have not been registered
under the Act, (B) the holder of such Reset Rate Notes is
subject to the restrictions on the resale or other transfer
thereof described in paragraph (ii) above, (C) such transferee
shall be deemed to have represented (1) as to its status as a
QIB, and that such transferee is acquiring the Reset Rate
Notes for its own account or as a fiduciary or agent for
others (which others also must be QIBs) (or that it is
acquiring such Reset Rate Notes in reliance on an exemption to
the Act other than Rule 144A or pursuant to an effective
registration statement under the Act), (2) that such
transferee is not an underwriter within the meaning of Section
2(11) of the Act, and (3) that such transferee shall be deemed
to have agreed to notify its subsequent transferees as to the
foregoing;
(iv) the acquisition or purchase by an employee benefit plan or
other retirement arrangements ("Plan") of a Reset Rate Note
will not constitute or otherwise result in: (A) in the case of
a Plan subject to Section 406 of Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or Section 4975 of
the Internal Revenue Code of 1986, as amended ("Code"), a
non-exempt prohibited transaction in violation of Section 406
of ERISA or Section 4975 of the Code which is not covered by a
class or other applicable exemption and (B) in the case of a
Plan subject to a substantially similar federal, state, local
or foreign law ("Similar Law"), a non-exempt violation of such
substantially Similar Law.
5. By acceptance of a Reset Rate Note, whether upon original
issuance or subsequent transfer, each Reset Rate Noteholder or Note Owner, as
applicable, of such Reset Rate Note or a beneficial interest therein, as
applicable, acknowledges or is deemed to acknowledge, as the case may be, the
restrictions on the transfer of such Reset Rate Note as set forth in the
following securities legend (the "Securities Legend"), which shall be affixed to
each Reset Rate Note unless determined otherwise in accordance with applicable
law:
"THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY UNITED STATES STATE
SECURITIES OR "BLUE SKY" LAWS OR ANY SECURITIES LAWS OF ANY OTHER
JURISDICTION, AND MAY NOT BE OFFERED OR SOLD IN VIOLATION OF THE
SECURITIES ACT OR SUCH OTHER LAWS. THIS NOTE MAY BE TRANSFERRED ONLY IN
MINIMUM DENOMINATIONS OF NOT LESS THAN $250,000. THE HOLDER HEREOF, BY
PURCHASING OR ACCEPTING THIS NOTE IS HEREBY DEEMED TO HAVE AGREED FOR
THE BENEFIT OF THE TRUST AND THE INITIAL PURCHASERS THAT IT WILL
RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE ONLY (A) (1) SO LONG AS
THIS NOTE IS ELIGIBLE FOR RESALE, PURSUANT TO RULE 144A PROMULGATED
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN
RULE 144A (A "QUALIFIED INSTITUTIONAL BUYER"), THAT IT IS ACQUIRING
THIS NOTE FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR
Appendix A-3-2
AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE QUALIFIED INSTITUTIONAL
BUYERS) TO WHOM NOTICE IS GIVEN THAT THE RESALE OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO ANOTHER EXEMPTION
FROM REGISTRATION AVAILABLE UNDER THE SECURITIES ACT OR (3) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH
CASE IN ACCORDANCE WITH ANY UNITED STATES STATE SECURITIES OR "BLUE
SKY" LAWS. UPON ACQUISITION OR TRANSFER OF A RESET RATE NOTE OR A
BENEFICIAL INTEREST IN A RESET RATE NOTE, AS THE CASE MAY BE, BY, FOR
OR WITH THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (A "PLAN"), SUCH RESET RATE NOTE OWNER SHALL BE DEEMED TO
HAVE REPRESENTED THAT SUCH ACQUISITION OR PURCHASE WILL NOT CONSTITUTE
OR OTHERWISE RESULT IN: (I) IN THE CASE OF A PLAN SUBJECT TO SECTION
406 OF EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), A NON-EXEMPT PROHIBITED TRANSACTION IN VIOLATION
OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WHICH IS NOT
COVERED BY A CLASS OR OTHER APPLICABLE EXEMPTION AND (II) IN THE CASE
OF A PLAN SUBJECT TO A SUBSTANTIALLY SIMILAR FEDERAL, STATE, LOCAL OR
FOREIGN LAW ("SIMILAR LAW"), A NON-EXEMPT VIOLATION OF SUCH
SUBSTANTIALLY SIMILAR LAW. ANY TRANSFER FOUND TO HAVE BEEN MADE IN
VIOLATION OF SUCH DEEMED REPRESENTATION SHALL BE NULL AND VOID AND OF
NO EFFECT.
THIS NOTE AND RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM
TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES UNDERTAKEN OR
REPRESENTED BY THE HOLDER, FOR RESALES AND OTHER TRANSFERS OF THIS
NOTE, TO REFLECT ANY CHANGE IN APPLICABLE LAWS OR REGULATIONS (OR THE
INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO RESALES OR OTHER
TRANSFERS OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS NOTE
AND ANY BENEFICIAL OWNER OF ANY INTEREST THEREIN SHALL BE DEEMED, BY
ITS ACCEPTANCE OR PURCHASE HEREOF, TO HAVE AGREED TO ANY SUCH AMENDMENT
OR SUPPLEMENT (EACH OF WHICH SHALL BE CONCLUSIVE AND BINDING ON THE
HOLDER HEREOF AND ALL FUTURE HOLDERS OF THIS NOTE AND ANY RESET RATE
NOTES ISSUED IN EXCHANGE OR SUBSTITUTION HEREFOR, WHETHER OR NOT ANY
NOTATION THEREOF IS MADE HEREON) AND AGREES TO TRANSFER THIS NOTE ONLY
IN ACCORDANCE WITH
Appendix A-3-3
ANY SUCH AMENDMENT OR SUPPLEMENT IN ACCORDANCE WITH APPLICABLE LAW IN
EFFECT ON THE DATE OF SUCH TRANSFER."
Whenever a global note is to be exchanged for Definitive Notes, such
Definitive Notes will be issued within five business days of delivery to the
Registrar of the information and any required certification described in the
preceding paragraph against the surrender of the relevant global note at the
specified office of the Registrar. Such exchange shall be effected in accordance
with the regulations concerning the transfer and registration from time to time
relating to the Reset Rate Notes and shall be effected without charge, but
against such indemnity as the Registrar may require in respect of any tax or
other duty of whatsoever nature which may be levied or imposed in connection
with such exchange.
Each Reset Rate Noteholder or Note Owner, as applicable, of such Reset
Rate Note, by its acceptance of a Reset Rate Note or a beneficial interest
therein, respectively, also agrees that it will transfer such Reset Rate Note or
beneficial interest therein, as the case may be, only as provided herein and in
accordance with the Indenture. In addition, by acceptance of any Reset Rate Note
or beneficial interest therein, as applicable, each proposed transferee thereof
is hereby deemed to have agreed with the conditions set forth in the Securities
Legend and agreed, by virtue of its acceptance of such Reset Rate Note or
beneficial interest therein, as the case may be, to indemnify the Administrator,
the Depositor, the Servicer, the Indenture Trustee the Eligible Lender Trustee,
the Remarketing Agents (in the event such transfer is made pursuant to a
successful remarketing on a related Reset Date) and the Issuer against any and
all liability that may result if such transfer is not made in a manner
consistent with the restrictions set forth in the Securities Legend. In addition
to any applicable restrictions in the Indenture, with respect to the transfer
and registration of transfer of any Reset Rate Note registered in the name of a
Reset Rate Noteholder other than DTC or its nominee to a transferee that takes
delivery in the form of a Definitive Note, in a transaction other than pursuant
to an effective registration statement under the Act, the Indenture Trustee
shall register the transfer of such Definitive Note if (i) the requested
transfer is being made to a transferee who has provided the Indenture Trustee
and the Administrator with a Rule 144A and Related Matters Certificate,
substantially in the form attached as Annex 1 hereto, or comparable evidence as
to its QIB status (or as to its acquisition of such Reset Rate Notes in reliance
on an exemption from registration under the Act other than Rule 144A), and (ii)
the applicable transferor has provided the Indenture Trustee and the
Administrator with a Transferor Letter, substantially in the form of Annex 2
hereto.
6. Each class of the Reset Rate Notes will be issued initially only in
minimum denominations of $250,000 and integral multiples of $1 in excess
thereof. The Reset Rate Notes are exchangeable at any time into an equal
aggregate principal amount of Reset Rate Notes of the same class of different
authorized denominations pursuant to Section 2.4 of the Indenture.
7. Reset Rate Notes may be presented or surrendered pursuant to Section
2.4 of the Indenture.
8. No service charge shall be made to a Noteholder for any registration of
transfer or exchange of Reset Rate Notes, but the Indenture Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge
pursuant to Section 2.4 of the Indenture.
Appendix A-3-4
9. The Indenture Trustee shall cancel all Reset Rate Notes surrendered for
transfer or exchange pursuant to Section 2.8 of the Indenture.
10. For so long as any class of Reset Rate Notes are "restricted
securities" within the meaning of Rule 144(a)(3) of the Act, (1) the
Administrator will provide or cause to be provided to any holder of such Reset
Rate Notes and any prospective purchaser thereof designated by such a holder,
upon the request of such holder or prospective purchaser, the information
required to be provided to such holder or prospective purchaser by Rule
144A(d)(4) under the Act; and (2) the Administrator shall update such
information from time to time in order to prevent such information from becoming
false and misleading and will take such other actions as are necessary to ensure
that the safe harbor exemption from the registration requirements of the Act
under Rule 144A is and will be available for resales of such Reset Rate Notes
conducted in accordance with Rule 144A.
Appendix X-0-0
XXXXX 0 XX
XXXXXXXX X-0
FORM OF RULE 144A AND RELATED MATTERS CERTIFICATE
[Date]
[SELLER]
The Bank of New York, as Indenture Trustee
0 Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
The Student Loan Marketing Association, as Administrator
00000 Xxxxxx Xxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Re: SLM Student Loan Trust 2003-11, Student Loan-Backed Class A-5,
Class A-6 and Class A-7 Reset Rate Notes (the "Reset Rate Notes")
Dear Sirs:
In connection with our purchase of the Class [A-5] [A-6] [A-7]
Reset Rate Notes of the above-referenced series, the undersigned certifies to
each of the parties to whom this letter is addressed that it is a qualified
institutional buyer (as defined in Rule 144A under the Securities Act of 1933,
as amended (the "Act")) as follows:
ARTICLE XII It owned and/or invested on a discretionary basis eligible
securities (excluding affiliate's securities, bank deposit notes and CD's, loan
participations, repurchase agreements, securities owned but subject to a
repurchase agreement and swaps), as described below:
Date: ______________, 20__ (must be on or after the close of
its most recent fiscal year)
Amount: $_________________; and
ARTICLE XIII The dollar amount set forth above is:
1. greater than $100 million and the undersigned is one
of the following entities:
an insurance company as defined in Section
2(13) of the Act; or
an investment company registered under the
Investment Company Act or any business
development company as defined in Section
2(a)(48) of the Investment Company Act
Appendix A-3-6
of 1940; or
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; or
a plan (i) established and maintained by a
state, its political subdivisions, or any
agency or instrumentality of a state or its
political subdivisions, the laws of which
permit the purchase of securities of this
type, for the benefit of its employees and
(ii) the governing investment guidelines of
which permit the purchase of securities of
this type; or
a business development company as defined
in Section 202(a)(22) of the Investment
Advisers Act of 1940; or
a corporation (other than a U.S. bank,
savings and loan association or equivalent
foreign institution), partnership,
Massachusetts or similar business trust, or
an organization described in Section
501(c)(3) of the Internal Revenue Code; or
a U.S. bank, savings and loan association
or equivalent foreign institution, which
has an audited net worth of at least $25
million as demonstrated in its latest
annual financial statements; or
an investment adviser registered under the
Investment Advisers Act; or
2. greater than $10 million, and the undersigned is a
broker-dealer registered with the SEC; or
3. less than $10 million, and the undersigned is a
broker-dealer registered with the SEC and will only
purchase Rule 144A securities in transactions in
which it acts as a riskless principal (as defined in
Rule 144A); or
4. less than $100 million, and the undersigned is an
investment company registered under the Investment
Company Act of 1940, which, together with one or more
registered investment companies having the same or an
affiliated investment adviser, owns at least $100
million of eligible securities; or
5. less than $100 million, and the undersigned is an
entity, all the equity owners of which are qualified
institutional buyers.
Appendix A-3-7
The undersigned further certifies that it is purchasing the
Reset Rate Notes for its own account or for the account of others that
independently qualify as "Qualified Institutional Buyers" as defined in Rule
144A (a "QIB"). It is aware that the sale of the Reset Rate Notes is being made
in reliance on its continued compliance with Rule 144A. It is aware that the
transferor may rely on the exemption from the provisions of Section 5 of the Act
provided by Rule 144A. The undersigned understands that the Reset Rate Notes may
be resold, pledged or transferred only to a person reasonably believed to be a
QIB that purchases for its own account or for the account of a QIB to whom
notice is given that the resale, pledge or transfer is being made in reliance on
Rule 144A, or any entity in which all the equity owners come within paragraph
(i), in a transaction that otherwise does not constitute a public offering.
The undersigned agrees that if at some future time it wishes
to dispose of or exchange any of the Reset Rate Notes, it will not transfer or
exchange any of the Reset Rate Notes unless: (1) the sale is to an Eligible
Purchaser (as defined below), (2) all offers or solicitations in connection with
the sale, whether directly or through any agent acting on our behalf, are
limited only to Eligible Purchasers and are not made by means of any form of
general solicitation or general advertising whatsoever, and (3) such transferee
shall deliver a Rule 144A Certificate to substantially the same effect as this
letter to the addressees hereof or such other evidence as may be acceptable to
the Administrator and the Indenture Trustee as to its status as a QIB (or as to
its acquisition of such Reset Rate Notes in reliance on an exemption from
registration under the Act other than Rule 144A).
The undersigned hereby represents and warrants that the
undersigned is accepting ownership of the Reset Rate Notes in compliance with
the restrictions set forth in Section 4. of Appendix A-3 to the Indenture, dated
as of October 1, 2003 (the "Indenture"), among the Trust, Chase Manhattan Bank
USA, National Association, as eligible lender trustee, and The Bank of New York,
as indenture trustee, and acknowledges that the Reset Rate Notes will be issued
with the legends set forth in Section 5. to Appendix A-3 to the Indenture.
"Eligible Purchaser" means a corporation, partnership or other
entity which we have reasonable grounds to believe and do believe (i) can make
representations with respect to itself to substantially the same effect as the
representations set forth herein, and (ii) is (A) a QIB as defined under Rule
144A of the Act or any entity in which all of the equity owners come within such
paragraphs or (B) acquiring such Reset Rate Notes in reliance on an exemption to
the Act other than Rule 144A or pursuant to an effective registration statement
under the Act.
If the Purchaser proposes that its Reset Rate Notes be
registered in the name of a nominee on its behalf, the Purchaser has identified
such nominee below, and has caused such nominee to complete the Nominee
Acknowledgment at the end of this letter.
Name of Nominee (if any): _____________________
Appendix A-3-8
IN WITNESS WHEREOF, this document has been executed by the
undersigned who is duly authorized to do so on behalf of the undersigned
Qualified Institutional Buyer on the ____ day of ___________, 20__.
Name of Institution
____________________________________
Signature
____________________________________
Name
____________________________________
Title
NOMINEE ACKNOWLEDGMENT
The undersigned hereby acknowledges and agrees that as to the
Reset Rate Notes being registered in its name, the sole beneficial owner thereof
is and shall be the Purchaser identified above, for whom the undersigned is
acting as nominee.
By: ____________________________________
Duly Authorized
Appendix A-3-9
ANNEX 2 TO
APPENDIX A-3
FORM OF TRANSFEROR LETTER
[Date]
The Bank of New York, as Indenture Trustee
0 Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx, 00000
The Student Loan Marketing Association, as Administrator
00000 Xxxxxx Xxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Re: SLM Student Loan Trust 2003-11, Student Loan-Backed Class A-5,
Class A-6 and Class A-7 Reset Rate Notes (the "Reset Rate Notes")
Ladies and Gentlemen:
In connection with our disposition of the Class [A-5] [A-6] [A-7] Reset Rate
Notes of the above-referenced series owned by us, we certify that (a) we
understand that the Reset Rate Notes have not been registered under the
Securities Act of 1933, as amended (the "Act"), and are being disposed by us in
a transaction that is exempt from the registration requirements of the Act, and
(b) we have not offered or sold any Reset Rate Notes to, or solicited offers to
buy any Reset Rate Notes 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 Act.
Very truly yours,
_____________________________________
Print Name of Transferor
By:__________________________________
Authorized Officer
Appendix A-3-10
SCHEDULE A
Schedule of Trust Student Loans
[See Schedule A to the Xxxx of Sale
(Attachment B to the Sale Agreement)]
Schedule A-1
SCHEDULE B
Location of Trust Student Loan Files
[See Attachment B to the Servicing Agreement]
Schedule B-1
EXHIBIT A-1
[FORM OF CLASS A-1 NOTE]
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer (as
defined below) or its agent for registration of transfer, exchange or payment,
and any Note issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS NOTE IS NOT
GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
NUMBER $[Note Face Xxxxxx]
X-0 CUSIP NO.: 00000XXX0
ISIN No.: US78442GJU13
EUROPEAN COMMON
CODE: 17942387
Exhibit A-1-1
SLM STUDENT LOAN TRUST 2003-11
FLOATING RATE CLASS A-1 STUDENT LOAN-BACKED NOTES
SLM Student Loan Trust 2003-11, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of [Note Face Amount] payable on each
Distribution Date in an amount equal to the aggregate amount, if any, payable to
Class A-1 Noteholders on such Distribution Date in respect of principal of the
Notes pursuant to Section 3.1 of the Indenture dated as of October 1, 2003,
among the Issuer, Chase Manhattan Bank USA, National Association, a Delaware
banking corporation, as Eligible Lender Trustee on behalf of the Issuer, and The
Bank of New York, a New York banking corporation, as Indenture Trustee (the
"Indenture Trustee") (capitalized terms used but not defined herein being
defined in Appendix A-1 to the Indenture, which also contains rules as to usage
that shall be applicable herein); provided, however, that the entire unpaid
principal amount of this Note shall be due and payable on the September 2009
Distribution Date (the "Class A-1 Maturity Date").
The Issuer shall pay interest on this Note at the rate per annum equal
to the Class A-1 Rate (as defined on the reverse hereof), on each Distribution
Date until the principal of this Note is paid or made available for payment, on
the principal amount of this Note outstanding on the preceding Distribution Date
(after giving effect to all payments of principal made on the preceding
Distribution Date), subject to certain limitations contained in Section 3.1 of
the Indenture. Interest on this Note shall accrue from and including the
preceding Distribution Date (or, in the case of the first Accrual Period, the
Closing Date) to but excluding the following Distribution Date (each an "Accrual
Period"). Interest shall be calculated on the basis of the actual number of days
elapsed in each Accrual Period divided by 360. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
Exhibit A-1-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed, manually or in facsimile, 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 under the Trust
Agreement,
By: _____________________________________________
Authorized Signatory
Date: October 30, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
not in its individual capacity but solely as
Indenture Trustee,
By: ___________________________________________
Authorized Signatory
Date: October 30, 2003
Exhibit A-1-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Floating Rate Class A-1 Student Loan-Backed Notes (the "Class
A-1 Notes"), which, together with the Issuer's Floating Rate Class A-2 Student
Loan-Backed Notes (the "Class A-2 Notes"), Floating Rate Class A-3 Student
Loan-Backed Notes (the "Class A-3 Notes"), Floating Rate Class A-4 Student
Loan-Backed Notes (the "Class A-4 Notes"), Reset Rate Class A-5 Student
Loan-Backed Notes (the "Class A-5 Notes"), Reset Rate Class A-6 Student
Loan-Backed Notes (the "Class A-6 Notes"), Reset Rate Class A-7 Student
Loan-Backed Notes (the "Class A-7 Notes" and, together with the Class A-5 and
Class A-6 Notes, the "Reset Rate Notes" and, the Reset Rate Notes together with
the Class A-1, Class A-2, Class A-3 and Class A-4 Notes, the "Class A Notes"),
and Floating Rate Class B Student Loan-Backed Notes (the "Class B Notes" and,
together with the Class A Notes, the "Notes"), are issued under and secured by
the Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Noteholders.
The Notes are subject to all terms of the Indenture.
The Class A-1 Notes are and will be equally and ratably secured by the
Collateral pledged as security therefor as provided in the Indenture. On any
Distribution Date interest on the Class A-1 Notes will be paid pari passu with
the other Class A Notes, and the Class A-1 Notes will be prior in order of
principal payment to the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Reset Rate Notes, and, up to the applicable Class A Noteholders' Principal
Distribution Amount, the Class B Notes. The Class A Notes are senior to the
Class B Notes, as and to the extent provided in the Indenture.
Principal of the Class A-1 Notes shall be payable on each Distribution
Date in an amount described on the face hereof. "Distribution Date" means the
15th day of each March, June, September and December or, if any such date is not
a Business Day, the next succeeding Business Day, commencing March 2004.
As described on the face hereof, the entire unpaid principal amount of
this Note shall be due and payable on the Class A-1 Maturity Date.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which (i) an Event of Default shall have
occurred and be continuing and (ii) the Indenture Trustee or the Noteholders
representing not less than a majority of the Outstanding Amount of the Notes
shall have declared the Notes to be immediately due and payable in the manner
provided in Section 5.2 of the Indenture. All principal payments on the Class
A-1 Notes shall be made pro rata to the Noteholders entitled thereto.
Interest on the Class A-1 Notes shall be payable on each Distribution
Date on the principal amount outstanding of the Class A-1 Notes until the
principal amount thereof is paid in full, at a rate per annum equal to the Class
A-1 Rate. The "Class A-1 Rate" for each Accrual Period, other than the initial
Accrual Period, shall be equal to Three-Month LIBOR as determined on the second
Business Day before the beginning of that Accrual Period plus 0.00%. The
interest for the initial Accrual Period shall be as set forth in the definition
of Class A-1 Rate contained in Appendix A-1 to the Indenture.
Exhibit A-1-4
If Definitive Notes have been issued as of the applicable Reset Date,
then payments of interest on this Note on each Distribution Date, together with
the installment of principal, if any, to the extent not in full payment of this
Note, shall be made by check mailed to the Person whose name appears as the
Registered Holder of this Note (or one or more Predecessor Notes) on the Note
Register on the Record Date. Such checks shall be mailed to the Person entitled
thereto at the address of such Person as it appears on the Note Register as of
the applicable Record Date without requiring that this Note be submitted for
notation of payment, and the mailing of such check shall constitute payment of
the amount thereof regardless of whether such check is returned undelivered.
With respect to Notes registered on the Record Date in the name of the nominee
of the Clearing Agency, unless Definitive Notes have been issued (initially,
such nominee to be Cede & Co.), payments shall be made by wire transfer in
immediately available funds to the account designated by such nominee. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) effected by any payments made on any Distribution Date shall be binding
upon all future Noteholders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Distribution Date, then the Indenture Trustee, in the name of and
on behalf of the Issuer, shall notify the Person who was the Noteholder hereof
as of the preceding Record Date by notice mailed no later than five days prior
to such Distribution Date and the amount then due and payable shall be payable
only upon presentation and surrender of this Note at the Indenture Trustee's
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in the Borough of Manhattan, The City of New
York.
The Issuer shall pay interest on overdue installments of interest on
this Note at the Class A-1 Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which requirements
include membership or participation in Securities Transfer Agent's Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP
(all in accordance with the Exchange Act), and such other documents as the
Indenture Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount shall be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith,
Exhibit A-1-5
against (i) the Indenture Trustee or the Eligible Lender Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Eligible Lender Trustee in its individual capacity,
any holder or owner of a beneficial interest in the Issuer, the Eligible Lender
Trustee or the Indenture Trustee or of any successor or assign thereof in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Eligible Lender Trustee have
no such obligations in their individual capacity) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Upon acquisition or transfer a Note or a beneficial interest in a Note,
as the case may be, by, for or with the assets of, an employee benefit plan or
other retirement arrangement ("Plan"), such Note Owner shall be deemed to have
represented that such acquisition or purchase will not constitute or otherwise
result in: (i) in the case of a Plan subject to Section 406 of Employee
Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of
the Internal Revenue Code of 1986, as amended ("Code"), a non-exempt prohibited
transaction in violation of Section 406 of ERISA or Section 4975 of the Code
which is not covered by a class or other applicable exemption and (ii) in the
case of a Plan subject to a substantially similar federal, state, local or
foreign law ("Similar Law"), a non-exempt violation of such substantially
Similar Law. Any transfer found to have been made in violation of such deemed
representation shall be null and void and of no effect.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder or Note Owner will not
at any time institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer 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, the
Indenture or the other Basic Documents.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Noteholders representing a majority of the
Outstanding Amount of all Notes at the time outstanding. The Indenture also
contains provisions permitting the Noteholders representing specified
percentages of the Outstanding Amount of the Notes, on behalf of all the
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the holder of this Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such
Exhibit A-1-6
holder and upon all future holders of this Note and of any Note issued upon
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note shall be construed in accordance with the laws of the State
of New York, without reference to its conflict of law provisions, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither The Bank of New York, in its individual
capacity, Chase Manhattan Bank USA, National Association in its individual
capacity, any owner of a beneficial interest in the Issuer, nor any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on, or performance
of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture; it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Eligible Lender Trustee for the sole purposes of binding the interests of
the Eligible Lender Trustee in the assets of the Issuer. The Noteholder of this
Note by the acceptance hereof agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Noteholder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained in
the Indenture or in this Note.
Exhibit A-1-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
______________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _______________________________________________________________
attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: _______________
____________________________ */
Signature Guaranteed:
______________________________*/
------------------
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
Exhibit X-0-0
XXXXXXX X-0
[FORM OF CLASS A-2 NOTE]
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
(as defined below) or its agent for registration of transfer, exchange or
payment, and any Note issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS NOTE IS NOT
GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
NUMBER $[Note Face Xxxxxx]
X-0 CUSIP NO.: 00000XXX0
ISIN No.: US78442GJV95
EUROPEAN COMMON
CODE: 17942433
Exhibit A-2-1
SLM STUDENT LOAN TRUST 2003-11
FLOATING RATE CLASS A-2 STUDENT LOAN-BACKED NOTES
SLM Student Loan Trust 2003-11, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of [Note Face Amount] payable on each
Distribution Date in an amount equal to the aggregate amount, if any, payable to
Class A-2 Noteholders on such Distribution Date in respect of principal of the
Notes pursuant to Section 3.1 of the Indenture dated as of October 1, 2003,
among the Issuer, Chase Manhattan Bank USA, National Association, a Delaware
banking corporation, as Eligible Lender Trustee on behalf of the Issuer, and The
Bank of New York, a New York banking corporation, as Indenture Trustee (the
"Indenture Trustee") (capitalized terms used but not defined herein being
defined in Appendix A-1 to the Indenture, which also contains rules as to usage
that shall be applicable herein); provided, however, that the entire unpaid
principal amount of this Note shall be due and payable on the March 2013
Distribution Date (the "Class A-2 Maturity Date").
The Issuer shall pay interest on this Note at the rate per
annum equal to the Class A-2 Rate (as defined on the reverse hereof), on each
Distribution Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Distribution Date (after giving effect to all payments of principal made on the
preceding Distribution Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note shall accrue from and
including the preceding Distribution Date (or, in the case of the first Accrual
Period, the Closing Date) to but excluding the following Distribution Date (each
an "Accrual Period"). Interest shall be calculated on the basis of the actual
number of days elapsed in each Accrual Period divided by 360. Such principal of
and interest on this Note shall be paid in the manner specified on the reverse
hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
Exhibit A-2-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed, manually or in facsimile, 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 under the Trust Agreement,
By: ______________________________________
Authorized Signatory
Date: October 30, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
not in its individual capacity but solely
as Indenture Trustee,
By: ______________________________________
Authorized Signatory
Date: October 30, 2003
Exhibit A-2-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Floating Rate Class A-2 Student Loan-Backed Notes (the
"Class A-2 Notes"), which, together with the Issuer's Floating Rate Class A-1
Student Loan-Backed Notes (the "Class A-1 Notes"), Floating Rate Class A-3
Student Loan-Backed Notes (the "Class A-3 Notes"), Floating Rate Class A-4
Student Loan-Backed Notes (the "Class A-4 Notes"), Reset Rate Class A-5 Student
Loan-Backed Notes (the "Class A-5 Notes"), Reset Rate Class A-6 Student
Loan-Backed Notes (the "Class A-6 Notes"), Reset Rate Class A-7 Student
Loan-Backed Notes (the "Class A-7 Notes" and, together with the Class A-5 and
Class A-6 Notes, the "Reset Rate Notes" and, the Reset Rate Notes together with
the Class A-1, Class A-2, Class A-3 and Class A-4 Notes, the "Class A Notes"),
and Floating Rate Class B Student Loan-Backed Notes (the "Class B Notes" and,
together with the Class A Notes, the "Notes"), are issued under and secured by
the Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Noteholders.
The Notes are subject to all terms of the Indenture.
The Class A-2 Notes are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture. On any Distribution Date interest on the Class A-2 Notes will be paid
pari passu with the other Class A Notes and the Class A-1 Notes will be prior in
order of principal payment to the Class A-2 Notes, and the Class A-2 Notes will
be prior in order of principal payment to the Class A-3 Notes, Class A-4 Notes,
the Reset Rate Notes and, up to the applicable Class A Noteholders' Principal
Distribution Amount, the Class B Notes. The Class A Notes are senior to the
Class B Notes, as and to the extent provided in the Indenture.
Principal of the Class A-2 Notes shall be payable on each
Distribution Date in an amount described on the face hereof. "Distribution Date"
means the 15th day of each March, June, September and December or, if any such
date is not a Business Day, the next succeeding Business Day, commencing March
2004.
As described on the face hereof, the entire unpaid principal
amount of this Note shall be due and payable on the Class A-2 Maturity Date.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which (i) an Event of Default shall have
occurred and be continuing and (ii) the Indenture Trustee or the Noteholders
representing not less than a majority of the Outstanding Amount of the Notes
shall have declared the Notes to be immediately due and payable in the manner
provided in Section 5.2 of the Indenture. All principal payments on the Class
A-2 Notes shall be made pro rata to the Noteholders entitled thereto.
Interest on the Class A-2 Notes shall be payable on each
Distribution Date on the principal amount outstanding of the Class A-2 Notes
until the principal amount thereof is paid in full, at a rate per annum equal to
the Class A-2 Rate. The "Class A-2 Rate" for each Accrual Period, other than the
initial Accrual Period, shall be equal to Three-Month LIBOR as determined on the
second Business Day before the beginning of that Accrual Period plus 0.05%. The
interest for the initial Accrual Period shall be as set forth in the definition
of Class A-2 Rate contained in Appendix A-1 to the Indenture.
Exhibit A-2-4
If Definitive Notes have been issued as of the applicable
Reset Date, then payments of interest on this Note on each Distribution Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register on the Record Date. Such checks shall be mailed to the
Person entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment, and the mailing of such check shall
constitute payment of the amount thereof regardless of whether such check is
returned undelivered. With respect to Notes registered on the Record Date in the
name of the nominee of the Clearing Agency, unless Definitive Notes have been
issued (initially, such nominee to be Cede & Co.), payments shall be made by
wire transfer in immediately available funds to the account designated by such
nominee. Any reduction in the principal amount of this Note (or any one or more
Predecessor Notes) effected by any payments made on any Distribution Date shall
be binding upon all future Noteholders of this Note and of any Note issued upon
the registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as provided
in the Indenture, for payment in full of the then remaining unpaid principal
amount of this Note on a Distribution Date, then the Indenture Trustee, in the
name of and on behalf of the Issuer, shall notify the Person who was the
Noteholder hereof as of the preceding Record Date by notice mailed no later than
five days prior to such Distribution Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in the Borough of Manhattan,
The City of New York.
The Issuer shall pay interest on overdue installments of
interest on this Note at the Class A-2 Rate to the extent lawful.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Noteholder hereof or
his attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP (all in accordance with the Exchange Act), and such other documents
as the Indenture Trustee may require, and thereupon one or more new Notes of
authorized denominations and in the same aggregate principal amount shall be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
Exhibit A-2-5
against (i) the Indenture Trustee or the Eligible Lender Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Eligible Lender Trustee in its individual capacity,
any holder or owner of a beneficial interest in the Issuer, the Eligible Lender
Trustee or the Indenture Trustee or of any successor or assign thereof in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Eligible Lender Trustee have
no such obligations in their individual capacity) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Upon acquisition or transfer a Note or a beneficial interest
in a Note, as the case may be, by, for or with the assets of, an employee
benefit plan or other retirement arrangement ("Plan"), such Note Owner shall be
deemed to have represented that such acquisition or purchase will not constitute
or otherwise result in: (i) in the case of a Plan subject to Section 406 of
Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section
4975 of the Internal Revenue Code of 1986, as amended ("Code"), a non-exempt
prohibited transaction in violation of Section 406 of ERISA or Section 4975 of
the Code which is not covered by a class or other applicable exemption and (ii)
in the case of a Plan subject to a substantially similar federal, state, local
or foreign law ("Similar Law"), a non-exempt violation of such substantially
Similar Law. Any transfer found to have been made in violation of such deemed
representation shall be null and void and of no effect.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture such Noteholder or Note Owner
will not at any time institute against the Depositor or the Issuer, or join in
any institution against the Depositor or the Issuer 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, the
Indenture or the other Basic Documents.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with the consent of the Noteholders representing a
majority of the Outstanding Amount of all Notes at the time outstanding. The
Indenture also contains provisions permitting the Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of all
the Noteholders, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note (or any one
of more Predecessor Notes) shall be conclusive and binding upon such
Exhibit A-2-6
holder and upon all future holders of this Note and of any Note issued upon
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note shall be construed in accordance with the laws of
the State of New York, without reference to its conflict of law provisions, and
the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency, herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither The Bank of New York, in its
individual capacity, Chase Manhattan Bank USA, National Association in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture; it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Eligible Lender Trustee for the sole purposes of binding the interests of
the Eligible Lender Trustee in the assets of the Issuer. The Noteholder of this
Note by the acceptance hereof agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Noteholder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained in
the Indenture or in this Note.
Exhibit A-2-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
________________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
________________________________________________________________________________
attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: ___________________
_______________________________*/
Signature Guaranteed:
_______________________________*/
__________________________
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
Exhibit X-0-0
XXXXXXX X-0
[FORM OF CLASS A-3 NOTE]
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
(as defined below) or its agent for registration of transfer, exchange or
payment, and any Note issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS NOTE IS NOT
GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
NUMBER $[Note Face Xxxxxx]
X-0 CUSIP NO.: 00000XXX0
ISIN No.: US78442GJW78
EUROPEAN COMMON
CODE: 17942620
Exhibit A-3-1
SLM STUDENT LOAN TRUST 2003-11
FLOATING RATE CLASS A-3 STUDENT LOAN-BACKED NOTES
SLM Student Loan Trust 2003-11, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of [Note Face Amount] payable on each
Distribution Date in an amount equal to the aggregate amount, if any, payable to
Class A-3 Noteholders on such Distribution Date in respect of principal of the
Notes pursuant to Section 3.1 of the Indenture dated as of October 1, 2003,
among the Issuer, Chase Manhattan Bank USA, National Association, a Delaware
banking corporation, as Eligible Lender Trustee on behalf of the Issuer, and The
Bank of New York, a New York banking corporation, as Indenture Trustee (the
"Indenture Trustee") (capitalized terms used but not defined herein being
defined in Appendix A-1 to the Indenture, which also contains rules as to usage
that shall be applicable herein); provided, however, that the entire unpaid
principal amount of this Note shall be due and payable on the March 2016
Distribution Date (the "Class A-3 Maturity Date").
The Issuer shall pay interest on this Note at the rate per
annum equal to the Class A-3 Rate (as defined on the reverse hereof), on each
Distribution Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Distribution Date (after giving effect to all payments of principal made on the
preceding Distribution Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note shall accrue from and
including the preceding Distribution Date (or, in the case of the first Accrual
Period, the Closing Date) to but excluding the following Distribution Date (each
an "Accrual Period"). Interest shall be calculated on the basis of the actual
number of days elapsed in each Accrual Period divided by 360. Such principal of
and interest on this Note shall be paid in the manner specified on the reverse
hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
Exhibit A-3-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed, manually or in facsimile, 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 under the Trust Agreement,
By: __________________________________
Authorized Signatory
Date: October 30, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Indenture Trustee,
By: __________________________________
Authorized Signatory
Date: October 30, 2003
Exhibit A-3-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Floating Rate Class A-3 Student Loan-Backed Notes (the
"Class A-3 Notes"), which, together with the Issuer's Floating Rate Class A-1
Student Loan-Backed Notes (the "Class A-1 Notes"), Floating Rate Class A-2
Student Loan-Backed Notes (the "Class A-2 Notes"), Floating Rate Class A-4
Student Loan-Backed Notes (the "Class A-4 Notes"), Reset Rate Class A-5 Student
Loan-Backed Notes (the "Class A-5 Notes"), Reset Rate Class A-6 Student
Loan-Backed Notes (the "Class A-6 Notes"), Reset Rate Class A-7 Student
Loan-Backed Notes (the "Class A-7 Notes" and, together with the Class A-5 and
Class A-6 Notes, the "Reset Rate Notes" and, the Reset Rate Notes together with
the Class A-1, Class A-2, Class A-3 and Class A-4 Notes, the "Class A Notes"),
and Floating Rate Class B Student Loan-Backed Notes (the "Class B Notes" and,
together with the Class A Notes, the "Notes"), are issued under and secured by
the Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Noteholders.
The Notes are subject to all terms of the Indenture.
The Class A-3 Notes are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture. On any Distribution Date interest on the Class A-3 Notes will be paid
pari passu with the other Class A Notes, and the Class A-1 Notes and the Class
A-2 Notes will be prior in order of principal payment to the Class A-3 Notes,
and the Class A-3 Notes will be prior in order of principal payment to the Class
A-4 Notes, the Reset Rate Notes and, up to the applicable Class A Noteholders'
Principal Distribution Amount, the Class B Notes. The Class A Notes are senior
to the Class B Notes, as and to the extent provided in the Indenture.
Principal of the Class A-3 Notes shall be payable on each
Distribution Date in an amount described on the face hereof. "Distribution Date"
means the 15th day of each March, June, September and December or, if any such
date is not a Business Day, the next succeeding Business Day, commencing March
2004.
As described on the face hereof, the entire unpaid principal
amount of this Note shall be due and payable on the Class A-3 Maturity Date.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which (i) an Event of Default shall have
occurred and be continuing and (ii) the Indenture Trustee or the Noteholders
representing not less than a majority of the Outstanding Amount of the Notes
shall have declared the Notes to be immediately due and payable in the manner
provided in Section 5.2 of the Indenture. All principal payments on the Class
A-3 Notes shall be made pro rata to the Noteholders entitled thereto.
Interest on the Class A-3 Notes shall be payable on each
Distribution Date on the principal amount outstanding of the Class A-3 Notes
until the principal amount thereof is paid in full, at a rate per annum equal to
the Class A-3 Rate. The "Class A-3 Rate" for each Accrual Period, other than the
initial Accrual Period, shall be equal to Three-Month LIBOR as determined on the
second Business Day before the beginning of that Accrual Period plus 0.12%. The
interest for the initial Accrual Period shall be as set forth in the definition
of Class A-3 Rate contained in Appendix A-1 to the Indenture.
Exhibit A-3-4
If Definitive Notes have been issued as of the applicable
Reset Date, then payments of interest on this Note on each Distribution Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register on the Record Date. Such checks shall be mailed to the
Person entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment, and the mailing of such check shall
constitute payment of the amount thereof regardless of whether such check is
returned undelivered. With respect to Notes registered on the Record Date in the
name of the nominee of the Clearing Agency, unless Definitive Notes have been
issued (initially, such nominee to be Cede & Co.), payments shall be made by
wire transfer in immediately available funds to the account designated by such
nominee. Any reduction in the principal amount of this Note (or any one or more
Predecessor Notes) effected by any payments made on any Distribution Date shall
be binding upon all future Noteholders of this Note and of any Note issued upon
the registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as provided
in the Indenture, for payment in full of the then remaining unpaid principal
amount of this Note on a Distribution Date, then the Indenture Trustee, in the
name of and on behalf of the Issuer, shall notify the Person who was the
Noteholder hereof as of the preceding Record Date by notice mailed no later than
five days prior to such Distribution Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in the Borough of Manhattan,
The City of New York.
The Issuer shall pay interest on overdue installments of
interest on this Note at the Class A-3 Rate to the extent lawful.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Noteholder hereof or
his attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP (all in accordance with the Exchange Act), and such other documents
as the Indenture Trustee may require, and thereupon one or more new Notes of
authorized denominations and in the same aggregate principal amount shall be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
Exhibit A-3-5
against (i) the Indenture Trustee or the Eligible Lender Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Eligible Lender Trustee in its individual capacity,
any holder or owner of a beneficial interest in the Issuer, the Eligible Lender
Trustee or the Indenture Trustee or of any successor or assign thereof in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Eligible Lender Trustee have
no such obligations in their individual capacity) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Upon acquisition or transfer a Note or a beneficial interest
in a Note, as the case may be, by, for or with the assets of, an employee
benefit plan or other retirement arrangement ("Plan"), such Note Owner shall be
deemed to have represented that such acquisition or purchase will not constitute
or otherwise result in: (i) in the case of a Plan subject to Section 406 of
Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section
4975 of the Internal Revenue Code of 1986, as amended ("Code"), a non-exempt
prohibited transaction in violation of Section 406 of ERISA or Section 4975 of
the Code which is not covered by a class or other applicable exemption and (ii)
in the case of a Plan subject to a substantially similar federal, state, local
or foreign law ("Similar Law"), a non-exempt violation of such substantially
Similar Law. Any transfer found to have been made in violation of such deemed
representation shall be null and void and of no effect.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture such Noteholder or Note Owner
will not at any time institute against the Depositor or the Issuer, or join in
any institution against the Depositor or the Issuer 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, the
Indenture or the other Basic Documents.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with the consent of the Noteholders representing a
majority of the Outstanding Amount of all Notes at the time outstanding. The
Indenture also contains provisions permitting the Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of all
the Noteholders, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note (or any one
of more Predecessor Notes) shall be conclusive and binding upon such
Exhibit A-3-6
holder and upon all future holders of this Note and of any Note issued upon
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note shall be construed in accordance with the laws of
the State of New York, without reference to its conflict of law provisions, and
the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency, herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither The Bank of New York, in its
individual capacity, Chase Manhattan Bank USA, National Association in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture; it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Eligible Lender Trustee for the sole purposes of binding the interests of
the Eligible Lender Trustee in the assets of the Issuer. The Noteholder of this
Note by the acceptance hereof agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Noteholder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained in
the Indenture or in this Note.
Exhibit A-3-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
________________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
________________________________________________________________________________
attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: __________________
_________________________*/
Signature Guaranteed:
_________________________*/
__________________________
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
Exhibit X-0-0
XXXXXXX X-0
[FORM OF CLASS A-4 NOTE]
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
(as defined below) or its agent for registration of transfer, exchange or
payment, and any Note issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS NOTE IS NOT
GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
NUMBER $[Note Face Xxxxxx]
X-0 CUSIP NO.: 00000XXX0
ISIN No.: US78442GJX51
EUROPEAN COMMON
CODE: 17942662
Exhibit A-4-1
SLM STUDENT LOAN TRUST 2003-11
FLOATING RATE CLASS A-4 STUDENT LOAN-BACKED NOTES
SLM Student Loan Trust 2003-11, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of [Note Face Amount] payable on each
Distribution Date in an amount equal to the aggregate amount, if any, payable to
Class A-4 Noteholders on such Distribution Date in respect of principal of the
Notes pursuant to Section 3.1 of the Indenture dated as of October 1, 2003,
among the Issuer, Chase Manhattan Bank USA, National Association, a Delaware
banking corporation, as Eligible Lender Trustee on behalf of the Issuer, and The
Bank of New York, a New York banking corporation, as Indenture Trustee (the
"Indenture Trustee") (capitalized terms used but not defined herein being
defined in Appendix A-1 to the Indenture, which also contains rules as to usage
that shall be applicable herein); provided, however, that the entire unpaid
principal amount of this Note shall be due and payable on the June 2020
Distribution Date (the "Class A-4 Maturity Date").
The Issuer shall pay interest on this Note at the rate per
annum equal to the Class A-4 Rate (as defined on the reverse hereof), on each
Distribution Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Distribution Date (after giving effect to all payments of principal made on the
preceding Distribution Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note shall accrue from and
including the preceding Distribution Date (or, in the case of the first Accrual
Period, the Closing Date) to but excluding the following Distribution Date (each
an "Accrual Period"). Interest shall be calculated on the basis of the actual
number of days elapsed in each Accrual Period divided by 360. Such principal of
and interest on this Note shall be paid in the manner specified on the reverse
hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
Exhibit A-4-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed, manually or in facsimile, 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 under the Trust
Agreement,
By: ___________________________
Authorized Signatory
Date: October 30, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Indenture
Trustee,
By: ___________________________
Authorized Signatory
Date: October 30, 2003
Exhibit A-4-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Floating Rate Class A-4 Student Loan-Backed Notes (the
"Class A-4 Notes"), which, together with the Issuer's Floating Rate Class A-1
Student Loan-Backed Notes (the "Class A-1 Notes"), Floating Rate Class A-2
Student Loan-Backed Notes (the "Class A-2 Notes"), Floating Rate Class A-3
Student Loan-Backed Notes (the "Class A-3 Notes"), Reset Rate Class A-5 Student
Loan-Backed Notes (the "Class A-5 Notes"), Reset Rate Class A-6 Student
Loan-Backed Notes (the "Class A-6 Notes"), Reset Rate Class A-7 Student
Loan-Backed Notes (the "Class A-7 Notes" and, together with the Class A-5, and
Class A-6 Notes, the "Reset Rate Notes" and, the Reset Rate Notes together with
the Class A-1, Class A-2, Class A-3 and Class A-4 Notes, the "Class A Notes"),
and Floating Rate Class B Student Loan-Backed Notes (the "Class B Notes" and,
together with the Class A Notes, the "Notes"), are issued under and secured by
the Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Noteholders.
The Notes are subject to all terms of the Indenture.
The Class A-4 Notes are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture. On any Distribution Date interest on the Class A-4 Notes will be paid
pari passu with the other Class A Notes, and the Class A-1 Notes, Class A-2
Notes and Class A-3 Notes will be prior in order of principal payment to the
Class A-4 Notes, and the Class A-4 Notes will be prior in order of principal
payment to the Reset Rate Notes and, up to the applicable Class A Noteholders'
Principal Distribution Amount. The Class A Notes are senior to the Class B
Notes, as and to the extent provided in the Indenture.
Principal of the Class A-4 Notes shall be payable on each
Distribution Date in an amount described on the face hereof. "Distribution Date"
means the 15th day of each March, June, September and December or, if any such
date is not a Business Day, the next succeeding Business Day, commencing March
2004.
As described on the face hereof, the entire unpaid principal
amount of this Note shall be due and payable on the Class A-4 Maturity Date.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which (i) an Event of Default shall have
occurred and be continuing and (ii) the Indenture Trustee or the Noteholders
representing not less than a majority of the Outstanding Amount of the Notes
shall have declared the Notes to be immediately due and payable in the manner
provided in Section 5.2 of the Indenture. All principal payments on the Class
A-4 Notes shall be made pro rata to the Noteholders entitled thereto.
Interest on the Class A-4 Notes shall be payable on each
Distribution Date on the principal amount outstanding of the Class A-4 Notes
until the principal amount thereof is paid in full, at a rate per annum equal to
the Class A-4 Rate. The "Class A-4 Rate" for each Accrual Period, other than the
initial Accrual Period, shall be equal to Three-Month LIBOR as determined on the
second Business Day before the beginning of that Accrual Period plus 0.19%. The
interest rate for the initial Accrual Period shall be as set forth in the
definition of Class A-4 Rate contained in Appendix A-1 to the Indenture.
Exhibit A-4-4
If Definitive Notes have been issued as of the applicable
Reset Date, then payments of interest on this Note on each Distribution Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register on the Record Date. Such checks shall be mailed to the
Person entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment, and the mailing of such check shall
constitute payment of the amount thereof regardless of whether such check is
returned undelivered. With respect to Notes registered on the Record Date in the
name of the nominee of the Clearing Agency, unless Definitive Notes have been
issued (initially, such nominee to be Cede & Co.), payments shall be made by
wire transfer in immediately available funds to the account designated by such
nominee. Any reduction in the principal amount of this Note (or any one or more
Predecessor Notes) effected by any payments made on any Distribution Date shall
be binding upon all future Noteholders of this Note and of any Note issued upon
the registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as provided
in the Indenture, for payment in full of the then remaining unpaid principal
amount of this Note on a Distribution Date, then the Indenture Trustee, in the
name of and on behalf of the Issuer, shall notify the Person who was the
Noteholder hereof as of the preceding Record Date by notice mailed no later than
five days prior to such Distribution Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in the Borough of Manhattan,
The City of New York.
The Issuer shall pay interest on overdue installments of
interest on this Note at the Class A-4 Rate to the extent lawful.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Noteholder hereof or
his attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP (all in accordance with the Exchange Act), and such other documents
as the Indenture Trustee may require, and thereupon one or more new Notes of
authorized denominations and in the same aggregate principal amount shall be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
Exhibit A-4-5
against (i) the Indenture Trustee or the Eligible Lender Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Eligible Lender Trustee in its individual capacity,
any holder or owner of a beneficial interest in the Issuer, the Eligible Lender
Trustee or the Indenture Trustee or of any successor or assign thereof in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Eligible Lender Trustee have
no such obligations in their individual capacity) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Upon acquisition or transfer a Note or a beneficial interest
in a Note, as the case may be, by, for or with the assets of, an employee
benefit plan or other retirement arrangement ("Plan"), such Note Owner shall be
deemed to have represented that such acquisition or purchase will not constitute
or otherwise result in: (i) in the case of a Plan subject to Section 406 of
Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section
4975 of the Internal Revenue Code of 1986, as amended ("Code"), a non-exempt
prohibited transaction in violation of Section 406 of ERISA or Section 4975 of
the Code which is not covered by a class or other applicable exemption and (ii)
in the case of a Plan subject to a substantially similar federal, state, local
or foreign law ("Similar Law"), a non-exempt violation of such substantially
Similar Law. Any transfer found to have been made in violation of such deemed
representation shall be null and void and of no effect.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture such Noteholder or Note Owner
will not at any time institute against the Depositor or the Issuer, or join in
any institution against the Depositor or the Issuer 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, the
Indenture or the other Basic Documents.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with the consent of the Noteholders representing a
majority of the Outstanding Amount of all Notes at the time outstanding. The
Indenture also contains provisions permitting the Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of all
the Noteholders, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note (or any one
of more Predecessor Notes) shall be conclusive and binding upon such
Exhibit A-4-6
holder and upon all future holders of this Note and of any Note issued upon
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note shall be construed in accordance with the laws of
the State of New York, without reference to its conflict of law provisions, and
the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency, herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither The Bank of New York, in its
individual capacity, Chase Manhattan Bank USA, National Association in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture; it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Eligible Lender Trustee for the sole purposes of binding the interests of
the Eligible Lender Trustee in the assets of the Issuer. The Noteholder of this
Note by the acceptance hereof agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Noteholder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained in
the Indenture or in this Note.
Exhibit A-4-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
________________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
________________________________________________________________________________
attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: ____________________
_____________________________*/
Signature Guaranteed:
_____________________________*/
___________________________
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
Exhibit X-0-0
XXXXXXX X-0
[FORM OF CLASS A-5 NOTE]
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY UNITED STATES
STATE SECURITIES OR "BLUE SKY" LAWS OR ANY SECURITIES LAWS OF ANY OTHER
JURISDICTION, AND MAY NOT BE OFFERED OR SOLD IN VIOLATION OF THE SECURITIES ACT
OR SUCH OTHER LAWS. THIS NOTE MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS
OF NOT LESS THAN $250,000. THE HOLDER HEREOF, BY PURCHASING OR ACCEPTING THIS
NOTE IS HEREBY DEEMED TO HAVE AGREED FOR THE BENEFIT OF THE TRUST AND THE
INITIAL PURCHASERS THAT IT WILL RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE
ONLY (A) (1) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE, PURSUANT TO RULE 144A
PROMULGATED UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN RULE 144A
(A "QUALIFIED INSTITUTIONAL BUYER"), THAT IT IS ACQUIRING THIS NOTE FOR ITS OWN
ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE
QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE RESALE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO ANOTHER
EXEMPTION FROM REGISTRATION AVAILABLE UNDER THE SECURITIES ACT OR (3) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY UNITED STATES STATE SECURITIES OR "BLUE SKY" LAWS. UPON
ACQUISITION OR TRANSFER OF A RESET RATE NOTE OR A BENEFICIAL INTEREST IN A RESET
RATE NOTE, AS THE CASE MAY BE, BY, FOR OR WITH THE ASSETS OF, AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (A "PLAN"), SUCH RESET RATE NOTE
OWNER SHALL BE DEEMED TO HAVE REPRESENTED THAT SUCH ACQUISITION OR PURCHASE WILL
NOT CONSTITUTE OR OTHERWISE RESULT IN: (I) IN THE CASE OF A PLAN SUBJECT TO
SECTION 406 OF EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), A NON-EXEMPT PROHIBITED TRANSACTION IN VIOLATION OF SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE WHICH IS NOT COVERED BY A CLASS OR OTHER
APPLICABLE EXEMPTION AND (II) IN THE CASE OF A PLAN SUBJECT TO A SUBSTANTIALLY
SIMILAR FEDERAL, STATE, LOCAL OR FOREIGN LAW ("SIMILAR LAW"), A NON-EXEMPT
VIOLATION OF SUCH SUBSTANTIALLY SIMILAR LAW. ANY TRANSFER FOUND TO HAVE BEEN
MADE IN VIOLATION OF SUCH DEEMED REPRESENTATION SHALL BE NULL AND VOID AND OF NO
EFFECT.
Exhibit A-5-1
THIS NOTE AND RELATED DOCUMENTATION MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES
UNDERTAKEN OR REPRESENTED BY THE HOLDER, FOR RESALES AND OTHER TRANSFERS OF THIS
NOTE, TO REFLECT ANY CHANGE IN APPLICABLE LAWS OR REGULATIONS (OR THE
INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO RESALES OR OTHER TRANSFERS
OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS NOTE AND ANY BENEFICIAL
OWNER OF ANY INTEREST THEREIN SHALL BE DEEMED, BY ITS ACCEPTANCE OR PURCHASE
HEREOF, TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT (EACH OF WHICH SHALL
BE CONCLUSIVE AND BINDING ON THE HOLDER HEREOF AND ALL FUTURE HOLDERS OF THIS
NOTE AND ANY RESET RATE NOTES ISSUED IN EXCHANGE OR SUBSTITUTION HEREFOR,
WHETHER OR NOT ANY NOTATION THEREOF IS MADE HEREON) AND AGREES TO TRANSFER THIS
NOTE ONLY IN ACCORDANCE WITH ANY SUCH AMENDMENT OR SUPPLEMENT IN ACCORDANCE WITH
APPLICABLE LAW IN EFFECT ON THE DATE OF SUCH TRANSFER.
Exhibit A-5-2
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
(as defined below) or its agent for registration of transfer, exchange or
payment, and any Note issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS NOTE IS NOT
GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
THE INTEREST RATE OF THIS NOTE IS SUBJECT TO CHANGE ON EACH
RESET DATE AND MAY BE SIGNIFICANTLY DIFFERENT ON SUBSEQUENT RESET PERIODS FROM
THAT APPLICABLE DURING THE INITIAL RESET PERIOD.
NUMBER $[Note Face Amount]
R-1 CUSIP NO.: 00000XXX0
ISIN No.: US78442GJR83
EUROPEAN COMMON CODE: 17942204
Exhibit A-5-3
SLM STUDENT LOAN TRUST 2003-11
RESET RATE CLASS A-5 STUDENT LOAN-BACKED NOTES
SLM Student Loan Trust 2003-11, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of [Note Face Amount] payable on each
Distribution Date in an amount equal to the aggregate amount, if any, payable or
allocable to Class A-5 Noteholders on such Distribution Date in respect of
principal of the Notes pursuant to Section 3.1 of the Indenture, dated as of
October 1, 2003, among the Issuer, Chase Manhattan Bank USA, National
Association, a national banking association, as Eligible Lender Trustee on
behalf of the Issuer, and The Bank of New York, a New York banking corporation,
as Indenture Trustee (the "Indenture Trustee"), including the Reset Rate Note
Procedures set forth in Appendix A-2 to the Indenture (the "Reset Rate Note
Procedures") (capitalized terms used but not defined herein are defined in
Appendix A-1 to the Indenture, which also contains rules as to usage that shall
be applicable herein, and in the Reset Rate Note Procedures); provided, however,
that the entire unpaid principal amount of this Note shall be due and payable on
the December 2022 Distribution Date (the "Class A-5 Maturity Date").
The Issuer shall pay interest on this Note at the rate per
annum equal to the Class A-5 Rate (as defined on the reverse hereof), on each
Distribution Date until the principal of this Note is paid or allocated for
payment, on the principal amount of this Note outstanding on the preceding
Distribution Date (after giving effect to all payments and allocations of
principal made on the preceding Distribution Date), subject to certain
limitations contained in Section 3.1 of the Indenture and in the Reset Rate Note
Procedures. Interest on this Note, if it is in floating rate mode, shall accrue
from and including the preceding Distribution Date (or, in the case of the first
Accrual Period (as defined below), the Closing Date) to but excluding the
following Distribution Date (each an "Accrual Period"), or if this Note is in
fixed rate mode, each Accrual Period will commence from and including the 15th
day of the month of the immediately preceding Distribution Date (or, in the case
of the first Accrual Period, the Closing Date) to and including the 14th day of
the month of the current Distribution Date. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The rate of interest on the Class A-5 Notes will be reset on
each Reset Date in accordance with the procedures set forth in the Reset Rate
Note Procedures.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
Exhibit A-5-4
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed, manually or in facsimile, 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 under the Trust
Agreement,
By: ___________________________
Authorized Signatory
Date: October 30, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Indenture
Trustee,
By: ___________________________
Authorized Signatory
Date: October 30, 2003
Exhibit A-5-5
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Reset Rate Class A-5 Student Loan-Backed Notes (the
"Class A-5 Notes"), which, together with the Floating Rate Class A-1 Student
Loan-Backed Notes (the "Class A-1 Notes"), the Floating Rate Class A-2 Student
Loan-Backed Notes (the "Class A-2 Notes"), the Floating Rate Class A-3 Student
Loan-Backed Notes (the "Class A-3 Notes"), the Floating Rate Class A-4 Student
Loan-Backed Notes (the "Class A-4 Notes" and together with the Class A-1 Notes,
Class A-2 Notes and Class A-3 Notes, the "Floating Rate Class A Notes"), the
Reset Rate Class A-6 Student Loan-Backed Notes (the "Class A-6 Notes"), the
Reset Rate Class A-7 Student Loan-Backed Notes (the "Class A-7 Notes," and
together with the Class A-5 Notes and Class A-6 Notes, the "Reset Rate Notes,"
and the Reset Rate Notes together with the Floating Rate Class A Notes, the
"Class A Notes") and the Floating Rate Class B Student Loan-Backed Notes (the
"Class B Notes" and, together with the Class A Notes, the "Notes") are issued
under and secured by the Indenture, to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee, the
Eligible Lender Trustee and the Noteholders. The Notes are subject to all terms
of the Indenture.
The Class A-5 Notes are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture. On any Distribution Date applicable to the Class A-5 Notes, interest
will be paid pari passu with the Class A Notes, and principal will be paid (or
allocated) only after the Floating Rate Class A Notes have been paid in full,
and prior to any principal paid (or allocated) to the Class A-6 Notes, the Class
A-7 Notes or the Class B Notes, except as set forth in the Indenture, up to the
applicable Class A Noteholders' Principal Distribution Amount. The Class A Notes
are senior to the Class B Notes, as and to the extent provided in the Indenture.
Principal of the Class A-5 Notes shall be payable on each
Distribution Date in an amount described on the face hereof. "Distribution Date"
means the 15th day of each March, June, September and December or, if any such
date is not a Business Day, the next succeeding Business Day, commencing March
2004. Notwithstanding the foregoing, if, during any Reset Period (including the
initial Reset Period), the Class A-5 Rate is a fixed rate of interest, the Class
A-5 Noteholders will not be paid principal on any related Distribution Date when
principal is allocated to the Class A-5 Notes. All such allocated principal will
be deposited into the related Accumulation Account for payment to the Class A-5
Noteholders, generally, on the next related Reset Date in accordance with the
Reset Rate Note Procedures.
As described on the face hereof, the entire outstanding
principal amount of this Note shall be due and payable on the Class A-5 Maturity
Date. Notwithstanding the foregoing, the entire outstanding principal amount of
the Notes shall be due and payable on the date on which (i) an Event of Default
shall have occurred and be continuing and (ii) the Indenture Trustee or the
Noteholders representing not less than a majority of the Outstanding Amount of
the Notes shall have declared the Notes to be immediately due and payable in the
manner provided in Section 5.2 of the Indenture. All principal payments on the
Class A-5 Notes shall be made pro rata to the Noteholders entitled thereto.
Interest on the Class A-5 Notes shall be payable on each
Distribution Date on the outstanding principal amount of the Class A-5 Notes
until the principal amount thereof is paid in
Exhibit A-5-6
full, at a rate per annum equal to the Class A-5 Rate. The Class A-5 Rate will
be reset on each related Reset Date in accordance with the Reset Rate Note
Procedures. The initial Reset Date for the Class A-5 Notes is the Distribution
Date in December 2006. The "Class A-5 Rate" for each Accrual Period during the
initial Reset Period, shall be equal to an annual rate of 2.99%, calculated on
the basis of 30 day months and a 360 day year.
On each Reset Date for the Class A-5 Notes, the Indenture
Trustee, in its capacity as DTC custodian, will attach (or will send to the
Class A-5 Noteholders if this Note is not then held in book-entry form) copies
of the related Remarketing Terms Notice and Spread Determination Notice as Annex
1 to this Note, which shall be considered an integral part of this Note
applicable during the related Reset Period.
If Definitive Notes have been issued as of the applicable
Reset Date, then payments of interest on this Note on each Distribution Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register on the Record Date. Such checks shall be mailed to the
Person entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment, and the mailing of such check shall
constitute payment of the amount thereof regardless of whether such check is
returned undelivered. With respect to Notes registered on the Record Date in the
name of the nominee of the Clearing Agency (initially, such nominee to be Cede &
Co.), payments shall be made by wire transfer in immediately available funds to
the account designated by such nominee. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Distribution Date shall be binding upon all future Noteholders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not noted hereon. If funds are
expected to be available, as provided in the Indenture, for payment in full of
the then remaining outstanding principal amount of this Note on a Distribution
Date, then the Indenture Trustee, in the name of and on behalf of the Issuer,
shall notify the Person who was the Noteholder hereof as of the preceding Record
Date by notice mailed no later than five days prior to such Distribution Date
and the amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's Corporate Trust Office or at
the office of the Indenture Trustee's agent appointed for such purposes located
in the Borough of Manhattan, The City of New York.
The Issuer shall pay interest on overdue installments of
interest on this Note at the Class A-5 Rate to the extent lawful.
The Class A-5 Notes have not been and will not be registered
or qualified under the Act, any United States state securities or "blue sky"
laws or any securities laws of any other jurisdiction. No offer, sale, pledge,
transfer or other disposition (each, a "Transfer") of any Class A-5 Note, or any
interest therein, shall be made unless the Transfer is made pursuant to an
effective registration statement under the Act 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 made without
registration or qualification, the Indenture Trustee shall require, in order to
assure compliance with such laws, that the prospective transferor and transferee
each certify to the Administrator and the Indenture Trustee in writing the facts
surrounding the Transfer. Such certifications shall be substantially in the
forms of Annex 1 and
Exhibit A-5-7
Annex 2 to Appendix A-3 to the Indenture. Such certifications shall be deemed to
have been made by the transferor and transferee with respect to any Transfer of
an interest in a Class A-5 Note that is in book-entry form. None of the Issuer,
the Depositor, the Administrator, the Eligible Lender Trustee or the Indenture
Trustee is obligated to register or qualify the Class A-5 Notes under the Act or
any other securities law or the laws of any other jurisdiction or to take any
action not otherwise required under the Indenture to permit the Transfer of
Class A-5 Notes, or interests therein, without registration or qualification.
Any Class A-5 Noteholder desiring to effect such Transfer is hereby deemed to
have indemnified the Issuer, the Depositor, the Administrator, the Eligible
Lender Trustee, the Remarketing Agents and the Indenture Trustee against any
liability that may result if the Transfer is not so exempt or is not made in
accordance with such applicable federal or state laws or the laws of any other
jurisdiction.
Each Noteholder or Note Owner, by acceptance of this Note or,
in the case of a Note Owner, a beneficial interest in this Note, will be
required, as applicable, to make certain representations and warranties as set
forth in Annex 1 and Annex 2 to Appendix A-3 to the Indenture. All such required
representations and warranties shall be deemed to have been made by the
Noteholder or Note Owner, as applicable, prior to the Transfer of any interest
in this Note if in book-entry form.
Upon acquisition or Transfer of this Note or a beneficial
interest in this Note, as the case may be, by, for or with the assets of, an
employee benefit plan or other retirement arrangement (a "Plan"), the Note Owner
shall be deemed to have represented that such acquisition or purchase will not
constitute or otherwise result in: (i) in the case of a Plan subject to Section
406 of Employee Retirement Income Security Act of 1974, as amended ("ERISA") or
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), a
non-exempt prohibited transaction in violation of Section 406 of ERISA or
Section 4975 of the Code which is not covered by a class or other applicable
exemption and (ii) in the case of a Plan subject to a substantially similar
federal, state, local or foreign law ("Similar Law"), a non-exempt violation of
such substantially Similar Law. Any Transfer found to have been made in
violation of such deemed representation shall be null and void and of no effect.
As provided in the Indenture and subject to certain
limitations set forth therein, the Transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Noteholder hereof or
his attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP (all in accordance with the Exchange Act), and such other documents
as the Indenture Trustee may require, and thereupon one or more new Notes of
authorized denominations and in the same aggregate principal amount shall be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken,
Exhibit A-5-8
directly or indirectly, with respect to the obligations of the Issuer or the
Indenture Trustee on the Notes or under the Indenture or any certificate or
other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Eligible Lender Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Indenture Trustee or
the Eligible Lender Trustee in its individual capacity, any holder or owner of a
beneficial interest in the Issuer, the Eligible Lender Trustee or the Indenture
Trustee or of any successor or assign thereof in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
Indenture Trustee and the Eligible Lender Trustee have no such obligations in
their individual capacity) and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture such Noteholder or Note Owner
will not at any time institute against the Depositor or the Issuer, or join in
any institution against the Depositor or the Issuer 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, the
Indenture or the other Basic Documents.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with the consent of the Noteholders representing a
majority of the Outstanding Amount of all Notes at the time outstanding. The
Indenture also contains provisions permitting the Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of all
the Noteholders, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder (or any one of more
Predecessor Notes) shall be conclusive and binding upon such holder and upon all
future holders of this Note and of any Note issued upon registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
Exhibit A-5-9
The Notes are issuable only in registered form in minimum
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note shall be construed in accordance with the laws of
the State of New York, without reference to its conflict of law provisions, and
the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency, herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither The Bank of New York, in its
individual capacity, Chase Manhattan Bank USA, National Association in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the allocation or payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture; it
being expressly understood that said covenants, obligations and indemnifications
have been made by the Eligible Lender Trustee for the sole purposes of binding
the interests of the Eligible Lender Trustee in the assets of the Issuer. The
Noteholder of this Note by the acceptance hereof agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Noteholder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and enforcement
against, the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
Exhibit A-5-10
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
________________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
________________________________________________________________________________
attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: ____________________
_____________________________*/
Signature Guaranteed:
_____________________________*/
___________________________
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
Exhibit X-0-00
XXXXXXX X-0
[FORM OF CLASS A-6 NOTE]
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY UNITED STATES
STATE SECURITIES OR "BLUE SKY" LAWS OR ANY SECURITIES LAWS OF ANY OTHER
JURISDICTION, AND MAY NOT BE OFFERED OR SOLD IN VIOLATION OF THE SECURITIES ACT
OR SUCH OTHER LAWS. THIS NOTE MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS
OF NOT LESS THAN $250,000. THE HOLDER HEREOF, BY PURCHASING OR ACCEPTING THIS
NOTE IS HEREBY DEEMED TO HAVE AGREED FOR THE BENEFIT OF THE TRUST AND THE
INITIAL PURCHASERS THAT IT WILL RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE
ONLY (A) (1) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE, PURSUANT TO RULE 144A
PROMULGATED UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN RULE 144A
(A "QUALIFIED INSTITUTIONAL BUYER"), THAT IT IS ACQUIRING THIS NOTE FOR ITS OWN
ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE
QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE RESALE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO ANOTHER
EXEMPTION FROM REGISTRATION AVAILABLE UNDER THE SECURITIES ACT OR (3) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY UNITED STATES STATE SECURITIES OR "BLUE SKY" LAWS. UPON
ACQUISITION OR TRANSFER OF A RESET RATE NOTE OR A BENEFICIAL INTEREST IN A RESET
RATE NOTE, AS THE CASE MAY BE, BY, FOR OR WITH THE ASSETS OF, AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (A "PLAN"), SUCH RESET RATE NOTE
OWNER SHALL BE DEEMED TO HAVE REPRESENTED THAT SUCH ACQUISITION OR PURCHASE WILL
NOT CONSTITUTE OR OTHERWISE RESULT IN: (I) IN THE CASE OF A PLAN SUBJECT TO
SECTION 406 OF EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), A NON-EXEMPT PROHIBITED TRANSACTION IN VIOLATION OF SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE WHICH IS NOT COVERED BY A CLASS OR OTHER
APPLICABLE EXEMPTION AND (II) IN THE CASE OF A PLAN SUBJECT TO A SUBSTANTIALLY
SIMILAR FEDERAL, STATE, LOCAL OR FOREIGN LAW ("SIMILAR LAW"), A NON-EXEMPT
VIOLATION OF SUCH SUBSTANTIALLY SIMILAR LAW. ANY TRANSFER FOUND TO HAVE BEEN
MADE IN VIOLATION OF SUCH DEEMED REPRESENTATION SHALL BE NULL AND VOID AND OF NO
EFFECT.
Exhibit A-6-1
THIS NOTE AND RELATED DOCUMENTATION MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES
UNDERTAKEN OR REPRESENTED BY THE HOLDER, FOR RESALES AND OTHER TRANSFERS OF THIS
NOTE, TO REFLECT ANY CHANGE IN APPLICABLE LAWS OR REGULATIONS (OR THE
INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO RESALES OR OTHER TRANSFERS
OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS NOTE AND ANY BENEFICIAL
OWNER OF ANY INTEREST THEREIN SHALL BE DEEMED, BY ITS ACCEPTANCE OR PURCHASE
HEREOF, TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT (EACH OF WHICH SHALL
BE CONCLUSIVE AND BINDING ON THE HOLDER HEREOF AND ALL FUTURE HOLDERS OF THIS
NOTE AND ANY RESET RATE NOTES ISSUED IN EXCHANGE OR SUBSTITUTION HEREFOR,
WHETHER OR NOT ANY NOTATION THEREOF IS MADE HEREON) AND AGREES TO TRANSFER THIS
NOTE ONLY IN ACCORDANCE WITH ANY SUCH AMENDMENT OR SUPPLEMENT IN ACCORDANCE WITH
APPLICABLE LAW IN EFFECT ON THE DATE OF SUCH TRANSFER.
Exhibit A-6-2
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
(as defined below) or its agent for registration of transfer, exchange or
payment, and any Note issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS NOTE IS NOT
GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
THE INTEREST RATE OF THIS NOTE IS SUBJECT TO CHANGE ON EACH
RESET DATE AND MAY BE SIGNIFICANTLY DIFFERENT ON SUBSEQUENT RESET PERIODS FROM
THAT APPLICABLE DURING THE INITIAL RESET PERIOD.
NUMBER $[Note Face Amount]
R-1 CUSIP NO.: 00000XXX0
ISIN No.: US78442GJS66
EUROPEAN COMMON CODE: 17942735
Exhibit A-6-3
SLM STUDENT LOAN TRUST 2003-11
RESET RATE CLASS A-6 STUDENT LOAN-BACKED NOTES
SLM Student Loan Trust 2003-11, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of [Note Face Amount] payable on each
Distribution Date in an amount equal to the aggregate amount, if any, payable or
allocable to Class A-6 Noteholders on such Distribution Date in respect of
principal of the Notes pursuant to Section 3.1 of the Indenture, dated as of
October 1, 2003, among the Issuer, Chase Manhattan Bank USA, National
Association, a national banking association, as Eligible Lender Trustee on
behalf of the Issuer, and The Bank of New York, a New York banking corporation,
as Indenture Trustee (the "Indenture Trustee"), including the Reset Rate Note
Procedures set forth in Appendix A-2 to the Indenture (the "Reset Rate Note
Procedures") (capitalized terms used but not defined herein are defined in
Appendix A-1 to the Indenture, which also contains rules as to usage that shall
be applicable herein, and in the Reset Rate Note Procedures); provided, however,
that the entire unpaid principal amount of this Note shall be due and payable on
the December 2025 Distribution Date (the "Class A-6 Maturity Date").
The Issuer shall pay interest on this Note at the rate per
annum equal to the Class A-6 Rate (as defined on the reverse hereof), on each
Distribution Date until the principal of this Note is paid or allocated for
payment, on the principal amount of this Note outstanding on the preceding
Distribution Date (after giving effect to all payments and allocations of
principal made on the preceding Distribution Date), subject to certain
limitations contained in Section 3.1 of the Indenture and in the Reset Rate Note
Procedures. Interest on this Note, if it is in floating rate mode, shall accrue
from and including the preceding Distribution Date (or, in the case of the first
Accrual Period (as defined below), the Closing Date) to but excluding the
following Distribution Date (each an "Accrual Period"), or if this Note is in
fixed rate mode, each Accrual Period will commence from and including the 15th
day of the month of the immediately preceding Distribution Date (or, in the case
of the first Accrual Period, the Closing Date) to and including the 14th day of
the month of the current Distribution Date. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The rate of interest on the Class A-6 Notes will be reset on
each Reset Date in accordance with the procedures set forth in the Reset Rate
Note Procedures.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
Exhibit A-6-4
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed, manually or in facsimile, 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 under the Trust
Agreement,
By: ___________________________
Authorized Signatory
Date: October 30, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Indenture
Trustee,
By: ___________________________
Authorized Signatory
Date: October 30, 2003
Exhibit A-6-5
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Reset Rate Class A-6 Student Loan-Backed Notes (the
"Class A-6 Notes"), which, together with the Floating Rate Class A-1 Student
Loan-Backed Notes (the "Class A-1 Notes"), the Floating Rate Class A-2 Student
Loan-Backed Notes (the "Class A-2 Notes"), the Floating Rate Class A-3 Student
Loan-Backed Notes (the "Class A-3 Notes"), the Floating Rate Class A-4 Student
Loan-Backed Notes (the "Class A-4 Notes" and together with the Class A-1 Notes,
Class A-2 Notes and Class A-3 Notes, the "Floating Rate Class A Notes"), the
Reset Rate Class A-5 Student Loan-Backed Notes (the "Class A-5 Notes"), the
Reset Rate Class A-7 Student Loan-Backed Notes (the "Class A-7 Notes," and
together with the Class A-5 Notes and Class A-6 Notes, the "Reset Rate Notes,"
and the Reset Rate Notes together with the Floating Rate Class A Notes, the
"Class A Notes") and the Floating Rate Class B Student Loan-Backed Notes (the
"Class B Notes" and, together with the Class A Notes, the "Notes") are issued
under and secured by the Indenture, to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee, the
Eligible Lender Trustee and the Noteholders. The Notes are subject to all terms
of the Indenture.
The Class A-6 Notes are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture. On any Distribution Date applicable to the Class A-6 Notes, interest
will be paid pari passu with the Class A Notes, and principal will be paid (or
allocated) only after the Floating Rate Class A Notes and Class A-5 Notes have
been paid in full, and prior to any principal paid (or allocated) to the Class
A-7 Notes or the Class B Notes, except as set forth in the Indenture, up to the
applicable Class A Noteholders' Principal Distribution Amount. The Class A Notes
are senior to the Class B Notes, as and to the extent provided in the Indenture.
Principal of the Class A-6 Notes shall be payable on each
Distribution Date in an amount described on the face hereof. "Distribution Date"
means the 15th day of each March, June, September and December or, if any such
date is not a Business Day, the next succeeding Business Day, commencing March
2004.
Notwithstanding the foregoing, if, during any Reset Period
(including the initial Reset Period), the Class A-6 Rate is a fixed rate of
interest, the Class A-6 Noteholders will not be paid principal on any related
Distribution Date when principal is allocated to the Class A-6 Notes. All such
allocated principal will be deposited into the related Accumulation Account for
payment to the Class A-6 Noteholders, generally, on the next related Reset Date
in accordance with the Reset Rate Note Procedures.
As described on the face hereof, the entire outstanding
principal amount of this Note shall be due and payable on the Class A-6 Maturity
Date. Notwithstanding the foregoing, the entire outstanding principal amount of
the Notes shall be due and payable on the date on which (i) an Event of Default
shall have occurred and be continuing and (ii) the Indenture Trustee or the
Noteholders representing not less than a majority of the Outstanding Amount of
the Notes shall have declared the Notes to be immediately due and payable in the
manner provided in Section 5.2 of the Indenture. All principal payments on the
Class A-6 Notes shall be made pro rata to the Noteholders entitled thereto.
Exhibit A-6-6
Interest on the Class A-6 Notes shall be payable on each
Distribution Date on the outstanding principal amount of the Class A-6 Notes
until the principal amount thereof is paid in full, at a rate per annum equal to
the Class A-6 Rate. The Class A-6 Rate will be reset on each related Reset Date
in accordance with the Reset Rate Note Procedures. The initial Reset Date for
the Class A-6 Notes is the Distribution Date in December 2013. The "Class A-6
Rate" for each Accrual Period, other than the Initial Accrual Period during the
initial Reset Period, shall be equal to an annual rate of Three-Month LIBOR plus
0.29%, calculated on the basis of the actual number of days elapsed in each
Accrual Period and a 360 day year. During the Initial Accrual Period, the Class
A-6 Rate shall be equal to the Initial Accrual Rate plus 0.29%.
On each Reset Date for the Class A-6 Notes, the Indenture
Trustee, in its capacity as DTC custodian, will attach (or will send to the
Class A-6 Noteholders if this Note is not then held in book-entry form) copies
of the related Remarketing Terms Notice and Spread Determination Notice as Annex
1 to this Note, which shall be considered an integral part of this Note
applicable during the related Reset Period.
If Definitive Notes have been issued as of the applicable
Reset Date, then payments of interest on this Note on each Distribution Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register on the Record Date. Such checks shall be mailed to the
Person entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment, and the mailing of such check shall
constitute payment of the amount thereof regardless of whether such check is
returned undelivered. With respect to Notes registered on the Record Date in the
name of the nominee of the Clearing Agency (initially, such nominee to be Cede &
Co.), payments shall be made by wire transfer in immediately available funds to
the account designated by such nominee. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Distribution Date shall be binding upon all future Noteholders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not noted hereon. If funds are
expected to be available, as provided in the Indenture, for payment in full of
the then remaining outstanding principal amount of this Note on a Distribution
Date, then the Indenture Trustee, in the name of and on behalf of the Issuer,
shall notify the Person who was the Noteholder hereof as of the preceding Record
Date by notice mailed no later than five days prior to such Distribution Date
and the amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's Corporate Trust Office or at
the office of the Indenture Trustee's agent appointed for such purposes located
in the Borough of Manhattan, The City of New York.
The Issuer shall pay interest on overdue installments of
interest on this Note at the Class A-6 Rate to the extent lawful.
The Class A-6 Notes have not been and will not be registered
or qualified under the Act, any United States state securities or "blue sky"
laws or any securities laws of any other jurisdiction. No offer, sale, pledge,
transfer or other disposition (each, a "Transfer") of any Class A-6 Note, or any
interest therein, shall be made unless the Transfer is made pursuant to an
effective registration statement under the Act or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. In the
Exhibit A-6-7
event that a Transfer is made without registration or qualification, the
Indenture Trustee shall require, in order to assure compliance with such laws,
that the prospective transferor and transferee each certify to the Administrator
and the Indenture Trustee in writing the facts surrounding the Transfer. Such
certifications shall be substantially in the forms of Annex 1 and Annex 2 to
Appendix A-3 to the Indenture. Such certifications shall be deemed to have been
made by the transferor and transferee with respect to any Transfer of an
interest in a Class A-6 Note that is in book-entry form. None of the Issuer, the
Depositor, the Administrator, the Eligible Lender Trustee or the Indenture
Trustee is obligated to register or qualify the Class A-6 Notes under the Act or
any other securities law or the laws of any other jurisdiction or to take any
action not otherwise required under the Indenture to permit the Transfer of
Class A-6 Notes, or interests therein, without registration or qualification.
Any Class A-6 Noteholder desiring to effect such Transfer is hereby deemed to
have indemnified the Issuer, the Depositor, the Administrator, the Eligible
Lender Trustee, the Remarketing Agents and the Indenture Trustee against any
liability that may result if the Transfer is not so exempt or is not made in
accordance with such applicable federal or state laws or the laws of any other
jurisdiction.
Each Noteholder or Note Owner, by acceptance of this Note or,
in the case of a Note Owner, a beneficial interest in this Note, will be
required, as applicable, to make certain representations and warranties as set
forth in Annex 1 and Annex 2 to Appendix A-3 to the Indenture. All such required
representations and warranties shall be deemed to have been made by the
Noteholder or Note Owner, as applicable, prior to the Transfer of any interest
in this Note if in book-entry form.
Upon acquisition or Transfer of this Note or a beneficial
interest in this Note, as the case may be, by, for or with the assets of, an
employee benefit plan or other retirement arrangement (a "Plan"), the Note Owner
shall be deemed to have represented that such acquisition or purchase will not
constitute or otherwise result in: (i) in the case of a Plan subject to Section
406 of Employee Retirement Income Security Act of 1974, as amended ("ERISA") or
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), a
non-exempt prohibited transaction in violation of Section 406 of ERISA or
Section 4975 of the Code which is not covered by a class or other applicable
exemption and (ii) in the case of a Plan subject to a substantially similar
federal, state, local or foreign law ("Similar Law"), a non-exempt violation of
such substantially Similar Law. Any Transfer found to have been made in
violation of such deemed representation shall be null and void and of no effect.
As provided in the Indenture and subject to certain
limitations set forth therein, the Transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Noteholder hereof or
his attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP (all in accordance with the Exchange Act), and such other documents
as the Indenture Trustee may require, and thereupon one or more new Notes of
authorized denominations and in the same aggregate principal amount shall be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but
Exhibit A-6-8
the transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Indenture Trustee or the Eligible Lender Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Eligible Lender Trustee in its individual capacity,
any holder or owner of a beneficial interest in the Issuer, the Eligible Lender
Trustee or the Indenture Trustee or of any successor or assign thereof in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Eligible Lender Trustee have
no such obligations in their individual capacity) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture such Noteholder or Note Owner
will not at any time institute against the Depositor or the Issuer, or join in
any institution against the Depositor or the Issuer 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, the
Indenture or the other Basic Documents.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with the consent of the Noteholders representing a
majority of the Outstanding Amount of all Notes at the time outstanding. The
Indenture also contains provisions permitting the Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of all
the Noteholders, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder (or any one of more
Predecessor Notes) shall be conclusive and binding upon such holder and upon all
future holders of this Note and of any Note issued upon registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
Exhibit A-6-9
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in minimum
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note shall be construed in accordance with the laws of
the State of New York, without reference to its conflict of law provisions, and
the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency, herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither The Bank of New York, in its
individual capacity, Chase Manhattan Bank USA, National Association in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the allocation or payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture; it
being expressly understood that said covenants, obligations and indemnifications
have been made by the Eligible Lender Trustee for the sole purposes of binding
the interests of the Eligible Lender Trustee in the assets of the Issuer. The
Noteholder of this Note by the acceptance hereof agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Noteholder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and enforcement
against, the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
Exhibit A-6-10
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
________________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
________________________________________________________________________________
attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: ___________________
____________________________*/
Signature Guaranteed:
____________________________*/
________________________
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
Exhibit X-0-00
XXXXXXX X-0
[FORM OF CLASS A-7 NOTE]
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY UNITED STATES
STATE SECURITIES OR "BLUE SKY" LAWS OR ANY SECURITIES LAWS OF ANY OTHER
JURISDICTION, AND MAY NOT BE OFFERED OR SOLD IN VIOLATION OF THE SECURITIES ACT
OR SUCH OTHER LAWS. THIS NOTE MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS
OF NOT LESS THAN $250,000. THE HOLDER HEREOF, BY PURCHASING OR ACCEPTING THIS
NOTE IS HEREBY DEEMED TO HAVE AGREED FOR THE BENEFIT OF THE TRUST AND THE
INITIAL PURCHASERS THAT IT WILL RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE
ONLY (A) (1) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE, PURSUANT TO RULE 144A
PROMULGATED UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN RULE 144A
(A "QUALIFIED INSTITUTIONAL BUYER"), THAT IT IS ACQUIRING THIS NOTE FOR ITS OWN
ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE
QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE RESALE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO ANOTHER
EXEMPTION FROM REGISTRATION AVAILABLE UNDER THE SECURITIES ACT OR (3) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY UNITED STATES STATE SECURITIES OR "BLUE SKY" LAWS. UPON
ACQUISITION OR TRANSFER OF A RESET RATE NOTE OR A BENEFICIAL INTEREST IN A RESET
RATE NOTE, AS THE CASE MAY BE, BY, FOR OR WITH THE ASSETS OF, AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (A "PLAN"), SUCH RESET RATE NOTE
OWNER SHALL BE DEEMED TO HAVE REPRESENTED THAT SUCH ACQUISITION OR PURCHASE WILL
NOT CONSTITUTE OR OTHERWISE RESULT IN: (I) IN THE CASE OF A PLAN SUBJECT TO
SECTION 406 OF EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), A NON-EXEMPT PROHIBITED TRANSACTION IN VIOLATION OF SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE WHICH IS NOT COVERED BY A CLASS OR OTHER
APPLICABLE EXEMPTION AND (II) IN THE CASE OF A PLAN SUBJECT TO A SUBSTANTIALLY
SIMILAR FEDERAL, STATE, LOCAL OR FOREIGN LAW ("SIMILAR LAW"), A NON-EXEMPT
VIOLATION OF SUCH SUBSTANTIALLY SIMILAR LAW. ANY TRANSFER FOUND TO HAVE BEEN
MADE IN VIOLATION OF SUCH DEEMED REPRESENTATION SHALL BE NULL AND VOID AND OF NO
EFFECT.
Exhibit A-7-1
THIS NOTE AND RELATED DOCUMENTATION MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES
UNDERTAKEN OR REPRESENTED BY THE HOLDER, FOR RESALES AND OTHER TRANSFERS OF THIS
NOTE, TO REFLECT ANY CHANGE IN APPLICABLE LAWS OR REGULATIONS (OR THE
INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO RESALES OR OTHER TRANSFERS
OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS NOTE AND ANY BENEFICIAL
OWNER OF ANY INTEREST THEREIN SHALL BE DEEMED, BY ITS ACCEPTANCE OR PURCHASE
HEREOF, TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT (EACH OF WHICH SHALL
BE CONCLUSIVE AND BINDING ON THE HOLDER HEREOF AND ALL FUTURE HOLDERS OF THIS
NOTE AND ANY RESET RATE NOTES ISSUED IN EXCHANGE OR SUBSTITUTION HEREFOR,
WHETHER OR NOT ANY NOTATION THEREOF IS MADE HEREON) AND AGREES TO TRANSFER THIS
NOTE ONLY IN ACCORDANCE WITH ANY SUCH AMENDMENT OR SUPPLEMENT IN ACCORDANCE WITH
APPLICABLE LAW IN EFFECT ON THE DATE OF SUCH TRANSFER.
Exhibit A-7-2
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
(as defined below) or its agent for registration of transfer, exchange or
payment, and any Note issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS NOTE IS NOT
GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
THE INTEREST RATE OF THIS NOTE IS SUBJECT TO CHANGE ON EACH
RESET DATE AND MAY BE SIGNIFICANTLY DIFFERENT ON SUBSEQUENT RESET PERIODS FROM
THAT APPLICABLE DURING THE INITIAL RESET PERIOD.
NUMBER $[Note Face Amount]
R-1 CUSIP NO.: 00000XXX0
ISIN No.: US78442GJT40
EUROPEAN COMMON CODE: 17942786
Exhibit A-7-3
SLM STUDENT LOAN TRUST 2003-11
RESET RATE CLASS A-7 STUDENT LOAN-BACKED NOTES
SLM Student Loan Trust 2003-11, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of [Note Face Amount] payable on each
Distribution Date in an amount equal to the aggregate amount, if any, payable or
allocable to Class A-7 Noteholders on such Distribution Date in respect of
principal of the Notes pursuant to Section 3.1 of the Indenture, dated as of
October 1, 2003, among the Issuer, Chase Manhattan Bank USA, National
Association, a national banking association, as Eligible Lender Trustee on
behalf of the Issuer, and The Bank of New York, a New York banking corporation,
as Indenture Trustee (the "Indenture Trustee"), including the Reset Rate Note
Procedures set forth in Appendix A-2 to the Indenture (the "Reset Rate Note
Procedures") (capitalized terms used but not defined herein are defined in
Appendix A-1 to the Indenture, which also contains rules as to usage that shall
be applicable herein, and in the Reset Rate Note Procedures); provided, however,
that the entire unpaid principal amount of this Note shall be due and payable on
the December 2038 Distribution Date (the "Class A-7 Maturity Date").
The Issuer shall pay interest on this Note at the rate per
annum equal to the Class A-7 Rate (as defined on the reverse hereof), on each
Distribution Date until the principal of this Note is paid or allocated for
payment, on the principal amount of this Note outstanding on the preceding
Distribution Date (after giving effect to all payments and allocations of
principal made on the preceding Distribution Date), subject to certain
limitations contained in Section 3.1 of the Indenture and in the Reset Rate Note
Procedures. Interest on this Note, if it is in floating rate mode, shall accrue
from and including the preceding Distribution Date (or, in the case of the first
Accrual Period (as defined below), the Closing Date) to but excluding the
following Distribution Date (each an "Accrual Period"), or if this Note is in
fixed rate mode, each Accrual Period will commence from and including the 15th
day of the month of the immediately preceding Distribution Date (or, in the case
of the first Accrual Period, the Closing Date) to and including the 14th day of
the month of the current Distribution Date. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The rate of interest on the Class A-7 Notes will be reset on
each Reset Date in accordance with the procedures set forth in the Reset Rate
Note Procedures.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
Exhibit A-7-4
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed, manually or in facsimile, 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 under the Trust
Agreement,
By: ___________________________
Authorized Signatory
Date: October 30, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Indenture
Trustee,
By: ___________________________
Authorized Signatory
Date: October 30, 2003
Exhibit A-7-5
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Reset Rate Class A-7 Student Loan-Backed Notes (the
"Class A-7 Notes"), which, together with the Floating Rate Class A-1 Student
Loan-Backed Notes (the "Class A-1 Notes"), the Floating Rate Class A-2 Student
Loan-Backed Notes (the "Class A-2 Notes"), the Floating Rate Class A-3 Student
Loan-Backed Notes (the "Class A-3 Notes"), the Floating Rate Class A-4 Student
Loan-Backed Notes (the "Class A-4 Notes" and together with the Class A-1 Notes,
Class A-2 Notes and Class A-3 Notes, the "Floating Rate Class A Notes"), the
Reset Rate Class A-5 Student Loan-Backed Notes (the "Class A-5 Notes"), the
Reset Rate Class A-6 Student Loan-Backed Notes (the "Class A-6 Notes," and
together with the Class A-5 Notes and Class A-7 Notes, the "Reset Rate Notes,"
and the Reset Rate Notes together with the Floating Rate Class A Notes, the
"Class A Notes") and the Floating Rate Class B Student Loan-Backed Notes (the
"Class B Notes" and, together with the Class A Notes, the "Notes") are issued
under and secured by the Indenture, to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee, the
Eligible Lender Trustee and the Noteholders. The Notes are subject to all terms
of the Indenture.
The Class A-7 Notes are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture. On any Distribution Date applicable to the Class A-7 Notes, interest
will be paid pari passu with the Class A Notes, and principal will be paid (or
allocated) only after the Floating Rate Class A Notes, the Class A-5 Notes and
the Class A-6 Notes have been paid in full, and prior to any principal paid (or
allocated) to the Class B Notes, except as set forth in the Indenture, up to the
applicable Class A Noteholders' Principal Distribution Amount. The Class A Notes
are senior to the Class B Notes, as and to the extent provided in the Indenture.
Principal of the Class A-7 Notes shall be payable on each
Distribution Date in an amount described on the face hereof. "Distribution Date"
means the 15th day of each March, June, September and December or, if any such
date is not a Business Day, the next succeeding Business Day, commencing March
2004.
Notwithstanding the foregoing, if, during any Reset Period
(including the initial Reset Period), the Class A-7 Rate is a fixed rate of
interest, the Class A-7 Noteholders will not be paid principal on any related
Distribution Date when principal is allocated to the Class A-7 Notes. All such
allocated principal will be deposited into the related Accumulation Account for
payment to the Class A-7 Noteholders, generally, on the next related Reset Date
in accordance with the Reset Rate Note Procedures.
As described on the face hereof, the entire outstanding
principal amount of this Note shall be due and payable on the Class A-7 Maturity
Date. Notwithstanding the foregoing, the entire outstanding principal amount of
the Notes shall be due and payable on the date on which (i) an Event of Default
shall have occurred and be continuing and (ii) the Indenture Trustee or the
Noteholders representing not less than a majority of the Outstanding Amount of
the Notes shall have declared the Notes to be immediately due and payable in the
manner provided in Section 5.2 of the Indenture. All principal payments on the
Class A-7 Notes shall be made pro rata to the Noteholders entitled thereto.
Exhibit A-7-6
Interest on the Class A-7 Notes shall be payable on each
Distribution Date on the outstanding principal amount of the Class A-7 Notes
until the principal amount thereof is paid in full, at a rate per annum equal to
the Class A-7 Rate. The Class A-7 Rate will be reset on each related Reset Date
in accordance with the Reset Rate Note Procedures. The initial Reset Date for
the Class A-7 Notes is the Distribution Date in September 2008. The "Class A-7
Rate" for each Accrual Period during the initial Reset Period, shall be equal to
an annual rate of 3.80%, calculated on the basis of 30 day months and a 360 day
year.
On each Reset Date for the Class A-7 Notes, the Indenture
Trustee, in its capacity as DTC custodian, will attach (or will send to the
Class A-7 Noteholders if this Note is not then held in book-entry form) copies
of the related Remarketing Terms Notice and Spread Determination Notice as Annex
1 to this Note, which shall be considered an integral part of this Note
applicable during the related Reset Period.
If Definitive Notes have been issued as of the applicable
Reset Date, then payments of interest on this Note on each Distribution Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register on the Record Date. Such checks shall be mailed to the
Person entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment, and the mailing of such check shall
constitute payment of the amount thereof regardless of whether such check is
returned undelivered. With respect to Notes registered on the Record Date in the
name of the nominee of the Clearing Agency (initially, such nominee to be Cede &
Co.), payments shall be made by wire transfer in immediately available funds to
the account designated by such nominee. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Distribution Date shall be binding upon all future Noteholders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not noted hereon. If funds are
expected to be available, as provided in the Indenture, for payment in full of
the then remaining outstanding principal amount of this Note on a Distribution
Date, then the Indenture Trustee, in the name of and on behalf of the Issuer,
shall notify the Person who was the Noteholder hereof as of the preceding Record
Date by notice mailed no later than five days prior to such Distribution Date
and the amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's Corporate Trust Office or at
the office of the Indenture Trustee's agent appointed for such purposes located
in the Borough of Manhattan, The City of New York.
The Issuer shall pay interest on overdue installments of
interest on this Note at the Class A-7 Rate to the extent lawful.
The Class A-7 Notes have not been and will not be registered
or qualified under the Act, any United States state securities or "blue sky"
laws or any securities laws of any other jurisdiction. No offer, sale, pledge,
transfer or other disposition (each, a "Transfer") of any Class A-7 Note, or any
interest therein, shall be made unless the Transfer is made pursuant to an
effective registration statement under the Act 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 made without
registration or qualification, the Indenture Trustee shall require, in order to
assure compliance with such laws, that the prospective transferor and
Exhibit A-7-7
transferee each certify to the Administrator and the Indenture Trustee in
writing the facts surrounding the Transfer. Such certifications shall be
substantially in the forms of Annex 1 and Annex 2 to Appendix A-3 to the
Indenture. Such certifications shall be deemed to have been made by the
transferor and transferee with respect to any Transfer of an interest in a Class
A-7 Note that is in book-entry form. None of the Issuer, the Depositor, the
Administrator, the Eligible Lender Trustee or the Indenture Trustee is obligated
to register or qualify the Class A-7 Notes under the Act or any other securities
law or the laws of any other jurisdiction or to take any action not otherwise
required under the Indenture to permit the Transfer of Class A-7 Notes, or
interests therein, without registration or qualification. Any Class A-7
Noteholder desiring to effect such Transfer is hereby deemed to have indemnified
the Issuer, the Depositor, the Administrator, the Eligible Lender Trustee, the
Remarketing Agents and the Indenture Trustee against any liability that may
result if the Transfer is not so exempt or is not made in accordance with such
applicable federal or state laws or the laws of any other jurisdiction.
Each Noteholder or Note Owner, by acceptance of this Note or,
in the case of a Note Owner, a beneficial interest in this Note, will be
required, as applicable, to make certain representations and warranties as set
forth in Annex 1 and Annex 2 to Appendix A-3 to the Indenture. All such required
representations and warranties shall be deemed to have been made by the
Noteholder or Note Owner, as applicable, prior to the Transfer of any interest
in this Note if in book-entry form.
Upon acquisition or Transfer of this Note or a beneficial
interest in this Note, as the case may be, by, for or with the assets of, an
employee benefit plan or other retirement arrangement (a "Plan"), the Note Owner
shall be deemed to have represented that such acquisition or purchase will not
constitute or otherwise result in: (i) in the case of a Plan subject to Section
406 of Employee Retirement Income Security Act of 1974, as amended ("ERISA") or
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), a
non-exempt prohibited transaction in violation of Section 406 of ERISA or
Section 4975 of the Code which is not covered by a class or other applicable
exemption and (ii) in the case of a Plan subject to a substantially similar
federal, state, local or foreign law ("Similar Law"), a non-exempt violation of
such substantially Similar Law. Any Transfer found to have been made in
violation of such deemed representation shall be null and void and of no effect.
As provided in the Indenture and subject to certain
limitations set forth therein, the Transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Noteholder hereof or
his attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP (all in accordance with the Exchange Act), and such other documents
as the Indenture Trustee may require, and thereupon one or more new Notes of
authorized denominations and in the same aggregate principal amount shall be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Exhibit A-7-8
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Indenture Trustee or the Eligible Lender Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Eligible Lender Trustee in its individual capacity,
any holder or owner of a beneficial interest in the Issuer, the Eligible Lender
Trustee or the Indenture Trustee or of any successor or assign thereof in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Eligible Lender Trustee have
no such obligations in their individual capacity) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture such Noteholder or Note Owner
will not at any time institute against the Depositor or the Issuer, or join in
any institution against the Depositor or the Issuer 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, the
Indenture or the other Basic Documents.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with the consent of the Noteholders representing a
majority of the Outstanding Amount of all Notes at the time outstanding. The
Indenture also contains provisions permitting the Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of all
the Noteholders, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder (or any one of more
Predecessor Notes) shall be conclusive and binding upon such holder and upon all
future holders of this Note and of any Note issued upon registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
Exhibit A-7-9
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in minimum
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note shall be construed in accordance with the laws of
the State of New York, without reference to its conflict of law provisions, and
the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency, herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither The Bank of New York, in its
individual capacity, Chase Manhattan Bank USA, National Association in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the allocation or payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture; it
being expressly understood that said covenants, obligations and indemnifications
have been made by the Eligible Lender Trustee for the sole purposes of binding
the interests of the Eligible Lender Trustee in the assets of the Issuer. The
Noteholder of this Note by the acceptance hereof agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Noteholder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and enforcement
against, the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
Exhibit A-7-10
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
________________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
________________________________________________________________________________
attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: ___________________
_____________________________*/
Signature Guaranteed:
_____________________________*/
__________________________
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
Exhibit X-0-00
XXXXXXX X-0
[FORM OF CLASS B NOTE]
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
(as defined below) or its agent for registration of transfer, exchange or
payment, and any Note issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS NOTE IS NOT
GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
NUMBER $[Note Face Xxxxxx]
X-0 CUSIP NO.: 00000XXX0
ISIN No.: US78442GJY35
EUROPEAN COMMON
CODE: 17943014
Exhibit A-8-1
SLM STUDENT LOAN TRUST 2003-11
FLOATING RATE CLASS B STUDENT LOAN-BACKED NOTES
SLM Student Loan Trust 2003-11, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of [Note Face Amount] payable on each
Distribution Date in an amount equal to the aggregate amount, if any, payable to
Class B Noteholders on such Distribution Date in respect of principal of the
Notes pursuant to Section 3.1 of the Indenture dated as of October 1, 2003,
among the Issuer, Chase Manhattan Bank USA, National Association, a Delaware
banking corporation, as Eligible Lender Trustee on behalf of the Issuer, and The
Bank of New York, a New York banking corporation, as Indenture Trustee (the
"Indenture Trustee") (capitalized terms used but not defined herein being
defined in Appendix A-1 to the Indenture, which also contains rules as to usage
that shall be applicable herein); provided, however, that the entire unpaid
principal amount of this Note shall be due and payable on the December 2038
Distribution Date (the "Class B Maturity Date").
The Issuer shall pay interest on this Note at the rate per
annum equal to the Class B Rate (as defined on the reverse hereof), on each
Distribution Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Distribution Date (after giving effect to all payments of principal made on the
preceding Distribution Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note shall accrue from and
including the preceding Distribution Date (or, in the case of the first Accrual
Period, the Closing Date) to but excluding the following Distribution Date (each
an "Accrual Period"). Interest shall be calculated on the basis of the actual
number of days elapsed in each Accrual Period divided by 360. Such principal of
and interest on this Note shall be paid in the manner specified on the reverse
hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
Exhibit A-8-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed, manually or in facsimile, 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 under the Trust
Agreement,
By: ___________________________
Authorized Signatory
Date: October 30, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Indenture
Trustee,
By: ___________________________
Authorized Signatory
Date: October 30, 2003
Exhibit A-8-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Floating Rate Class B Student Loan-Backed Notes (the
"Class B Notes"), which, together with the Issuer's Floating Rate Class A-1
Student Loan-Backed Notes (the "Class A-1 Notes"), Floating Rate Class A-2
Student Loan-Backed Notes (the "Class A-2 Notes"), Floating Rate Class A-3
Student Loan-Backed Notes (the "Class A-3 Notes") and the Issuer's Floating Rate
Class A-4 Student Loan-Backed Notes (the "Class A-4 Notes"), Reset Rate Class
A-5 Student Loan-Backed Notes (the "Class A-5 Notes"), Reset Rate Class A-6
Student Loan-Backed Notes (the "Class A-6 Notes") Reset Rate Class A-7 Student
Loan-Backed Notes (the "Class A-7 Notes" and, together with the Class A-5 and
Class A-6 Notes, the "Reset Rate Notes" and, the Reset Rate Notes together with
the Class A-1, Class A-2, Class A-3 and Class A-4 Notes, the "Class A Notes"
and, the Class A Notes together with the Class B Notes, the "Notes"), are issued
under and secured by the Indenture, to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the Indenture.
The Class B Notes are and will be equally and ratably secured
by the Collateral pledged as security therefor as provided in the Indenture. On
any Distribution Date, the Class A Notes are prior in order of principal payment
to the Class B Notes, up to the applicable Class A Noteholders' Principal
Distribution Amount. The Class B Notes are subordinate to the Class A Notes as
and to the extent provided in the Indenture.
Principal of the Class B Notes shall be payable on each
Distribution Date in an amount described on the face hereof. "Distribution Date"
means the 15th day of each March, June, September and December or, if any such
date is not a Business Day, the next succeeding Business Day, commencing March
2004.
As described on the face hereof, the entire unpaid principal
amount of this Note shall be due and payable on the Class B Maturity Date.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which (i) an Event of Default shall have
occurred and be continuing and (ii) the Indenture Trustee or the Noteholders
representing not less than a majority of the Outstanding Amount of the Notes
shall have declared the Notes to be immediately due and payable in the manner
provided in Section 5.2 of the Indenture. All principal payments on the Class B
Notes shall be made pro rata to the Noteholders entitled thereto.
Interest on the Class B Notes shall be payable on each
Distribution Date on the principal amount outstanding of the Class B Notes until
the principal amount thereof is paid in full, at a rate per annum equal to the
Class B Rate. The "Class B Rate" for each Accrual Period, other than the initial
Accrual Period, shall be equal to Three-Month LIBOR as determined on the second
Business Day before the beginning of that Accrual Period plus 0.65%. The
interest rate for the initial Accrual Period shall be as set forth in the
definition of Class B Rate contained in Appendix A-1 to the Indenture.
Exhibit A-8-4
If Definitive Notes have been issued as of the applicable
Reset Date, then payments of interest on this Note on each Distribution Date,
together with the installment of principal, if any, to the extent not in full
payment of this Note, shall be made by check mailed to the Person whose name
appears as the Registered Holder of this Note (or one or more Predecessor Notes)
on the Note Register on the Record Date. Such checks shall be mailed to the
Person entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment, and the mailing of such check shall
constitute payment of the amount thereof regardless of whether such check is
returned undelivered. With respect to Notes registered on the Record Date in the
name of the nominee of the Clearing Agency, unless Definitive Notes have been
issued (initially, such nominee to be Cede & Co.), payments shall be made by
wire transfer in immediately available funds to the account designated by such
nominee. Any reduction in the principal amount of this Note (or any one or more
Predecessor Notes) effected by any payments made on any Distribution Date shall
be binding upon all future Noteholders of this Note and of any Note issued upon
the registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as provided
in the Indenture, for payment in full of the then remaining unpaid principal
amount of this Note on a Distribution Date, then the Indenture Trustee, in the
name of and on behalf of the Issuer, shall notify the Person who was the
Noteholder hereof as of the preceding Record Date by notice mailed no later than
five days prior to such Distribution Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in the Borough of Manhattan,
The City of New York.
The Issuer shall pay interest on overdue installments of
interest on this Note at the Class B Rate to the extent lawful.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Noteholder hereof or
his attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note Registrar,
which requirements include membership or participation in Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP (all in accordance with the Exchange Act), and such other documents
as the Indenture Trustee may require, and thereupon one or more new Notes of
authorized denominations and in the same aggregate principal amount shall be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
Exhibit A-8-5
against (i) the Indenture Trustee or the Eligible Lender Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Eligible Lender Trustee in its individual capacity,
any holder or owner of a beneficial interest in the Issuer, the Eligible Lender
Trustee or the Indenture Trustee or of any successor or assign thereof in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Eligible Lender Trustee have
no such obligations in their individual capacity) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Upon acquisition or transfer a Note or a beneficial interest
in a Note, as the case may be, by, for or with the assets of, an employee
benefit plan or other retirement arrangement ("Plan"), such Note Owner shall be
deemed to have represented that such acquisition or purchase will not constitute
or otherwise result in: (i) in the case of a Plan subject to Section 406 of
Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section
4975 of the Internal Revenue Code of 1986, as amended ("Code"), a non-exempt
prohibited transaction in violation of Section 406 of ERISA or Section 4975 of
the Code which is not covered by a class or other applicable exemption and (ii)
in the case of a Plan subject to a substantially similar federal, state, local
or foreign law ("Similar Law"), a non-exempt violation of such substantially
Similar Law. Any transfer found to have been made in violation of such deemed
representation shall be null and void and of no effect.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture such Noteholder or Note Owner
will not at any time institute against the Depositor or the Issuer, or join in
any institution against the Depositor or the Issuer 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, the
Indenture or the other Basic Documents.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with the consent of the Noteholders representing a
majority of the Outstanding Amount of all Notes at the time outstanding. The
Indenture also contains provisions permitting the Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of all
the Noteholders, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note (or any one
of more Predecessor Notes) shall be conclusive and binding upon such
Exhibit A-8-6
holder and upon all future holders of this Note and of any Note issued upon
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note shall be construed in accordance with the laws of
the State of New York, without reference to its conflict of law provisions, and
the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency, herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither The Bank of New York, in its
individual capacity, Chase Manhattan Bank USA, National Association in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture; it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Eligible Lender Trustee for the sole purposes of binding the interests of
the Eligible Lender Trustee in the assets of the Issuer. The Noteholder of this
Note by the acceptance hereof agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Noteholder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained in
the Indenture or in this Note.
Exhibit A-8-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
________________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
________________________________________________________________________________
attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: ____________________
_____________________________*/
Signature Guaranteed:
_____________________________*/
___________________________
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
Exhibit A-8-8
EXHIBIT B
Form of Note Depository Agreement
[See Tab 19-Letter of Representation to DTC]
Exhibit B-1
