EXHIBIT 4.3
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INDENTURE
among
SLM STUDENT LOAN TRUST 2003-7
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 July 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...................................................4
SECTION 2.3 Temporary Notes..........................................................................5
SECTION 2.4 Registration; Registration of Transfer and Exchange......................................5
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes...............................................6
SECTION 2.6 Persons Deemed Owner.....................................................................7
SECTION 2.7 Payment of Principal and Interest; Note Interest Shortfall...............................7
SECTION 2.8 Cancellation.............................................................................8
SECTION 2.9 Release of Collateral....................................................................9
SECTION 2.10 Book-Entry Notes.........................................................................9
SECTION 2.11 Notices to Clearing Agency..............................................................10
SECTION 2.12 Definitive Notes........................................................................10
SECTION 2.13 Transfer Restrictions...................................................................11
ARTICLE III
Covenants
SECTION 3.1 Payment to Noteholders and each Swap Counterparty.......................................11
SECTION 3.2 Maintenance of Office or Agency.........................................................11
SECTION 3.3 Money for Payments to be Held in Trust..................................................11
SECTION 3.4 Existence...............................................................................13
SECTION 3.5 Protection of Indenture Trust Estate....................................................13
SECTION 3.6 Opinions as to Indenture Trust Estate...................................................13
SECTION 3.7 Performance of Obligations; Servicing of Trust Student Loans............................14
SECTION 3.8 Negative Covenants......................................................................16
SECTION 3.9 Annual Statement as to Compliance.......................................................17
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms.....................................17
SECTION 3.11 Successor or Transferee.................................................................19
SECTION 3.12 No Other Business.......................................................................19
SECTION 3.13 No Borrowing............................................................................19
SECTION 3.14 Obligations of Servicer and Administrator...............................................19
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities.......................................19
SECTION 3.16 Capital Expenditures....................................................................20
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SECTION 3.17 Restricted Payments.....................................................................20
SECTION 3.18 Notice of Events of Default.............................................................20
SECTION 3.19 Further Instruments and Acts............................................................20
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1 Satisfaction and Discharge of
Indenture.................................................20
SECTION 4.2 Application of Trust Money..............................................................21
SECTION 4.3 Repayment of Moneys Held by Paying Agent................................................22
SECTION 4.4 Auction of Trust Student Loans..........................................................22
ARTICLE V
Remedies
SECTION 5.1 Events of Default.......................................................................23
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment......................................24
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee...............24
SECTION 5.4 Remedies; Priorities....................................................................26
SECTION 5.5 Optional Preservation of the Trust Student Loans........................................29
SECTION 5.6 Limitation of Suits.....................................................................30
SECTION 5.7 Unconditional Rights of Noteholders to Receive Principal and Interest...................30
SECTION 5.8 Restoration of Rights and Remedies......................................................30
SECTION 5.9 Rights and Remedies Cumulative..........................................................31
SECTION 5.10 Delay or Omission Not a Waiver..........................................................31
SECTION 5.11 Control by Noteholders..................................................................31
SECTION 5.12 Waiver of Past Defaults.................................................................32
SECTION 5.13 Undertaking for Costs...................................................................32
SECTION 5.14 Waiver of Stay or Extension Laws........................................................32
SECTION 5.15 Action on Notes.........................................................................32
SECTION 5.16 Performance and Enforcement of Certain Obligations......................................33
ARTICLE VI
The
Indenture Trustee
SECTION 6.1 Duties of
Indenture Trustee.............................................................33
SECTION 6.2 Rights of
Indenture Trustee.............................................................34
SECTION 6.3 Individual Rights of Indenture Trustee..................................................35
SECTION 6.4 Indenture Trustee's Disclaimer..........................................................35
SECTION 6.5 Notice of Defaults......................................................................35
SECTION 6.6 Reports by Indenture Trustee to Noteholders.............................................36
SECTION 6.7 Compensation and Indemnity..............................................................36
SECTION 6.8 Replacement of Indenture Trustee........................................................36
SECTION 6.9 Successor Indenture Trustee by Merger...................................................37
SECTION 6.10 Appointment of Co-Trustee or Separate Trustee...........................................38
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SECTION 6.11 Eligibility; Disqualification...........................................................39
SECTION 6.12 Preferential Collection of Claims Against the Issuer....................................39
ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.1 Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders..................39
SECTION 7.2 Preservation of Information; Communications to Noteholders..............................40
SECTION 7.3 Reports by Issuer.......................................................................40
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1 Collection of Money.....................................................................41
SECTION 8.2 Trust Accounts..........................................................................41
SECTION 8.3 General Provisions Regarding Accounts...................................................41
SECTION 8.4 Release of Indenture Trust Estate.......................................................42
SECTION 8.5 Opinion of Counsel......................................................................43
ARTICLE IX
Supplemental Indentures
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders..................................43
SECTION 9.2 Supplemental Indentures with Consent of Noteholders.....................................44
SECTION 9.3 Execution of Supplemental Indentures....................................................45
SECTION 9.4 Effect of Supplemental Indenture........................................................46
SECTION 9.5 Conformity with Trust Indenture Act.....................................................46
SECTION 9.6 Reference in Notes to Supplemental Indentures...........................................46
ARTICLE X
Redemption of Notes
SECTION 10.1 Redemption..............................................................................46
SECTION 10.2 Form of Redemption Notice...............................................................46
SECTION 10.3 Notes Payable on Redemption Date........................................................47
ARTICLE XI
Miscellaneous
SECTION 11.1 Compliance Certificates and Opinions, etc...............................................47
SECTION 11.2 Form of Documents Delivered to Indenture Trustee........................................49
SECTION 11.3 Acts of Noteholders....................................................................49
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies.........................50
SECTION 11.5 Notices to Noteholders; Waiver..........................................................51
SECTION 11.6 Alternate Payment and Notice Provisions.................................................51
SECTION 11.7 Conflict with Trust Indenture Act.......................................................51
SECTION 11.8 Effect of Headings and Table of Contents................................................52
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SECTION 11.9 Successors and Assigns..................................................................52
SECTION 11.10 Separability............................................................................52
SECTION 11.11 Benefits of Indenture...................................................................52
SECTION 11.12 Legal Holidays..........................................................................52
SECTION 11.13 GOVERNING LAW...........................................................................52
SECTION 11.14 Counterparts............................................................................53
SECTION 11.15 Recording of Indenture..................................................................53
SECTION 11.16 Trust Obligations.......................................................................53
SECTION 11.17 No Petition.............................................................................53
SECTION 11.18 Inspection..............................................................................53
SECTION 11.19 Subordination...........................................................................54
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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 July 1, 2003, among SLM STUDENT LOAN TRUST
2003-7, 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, for
the equal and ratable benefit of the holders of the Issuer's Student Loan-Backed
Notes (the "Notes") and, after the Notes have been paid in full, for the benefit
of any Cross-Currency Swap Counterparty:
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 and, subject to the provisions of Section 11.19, each
Cross-Currency Swap Counterparty; 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 ▇▇▇▇▇▇ ▇▇▇ 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, the Supplemental
Interest Account Initial Deposit and the Capitalized Interest Account Initial
Deposit and all investments and proceeds thereof (including all income thereon);
and
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(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 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, to secure
compliance with the provisions of this Indenture and to secure amounts owing to
any Cross-Currency Swap Counterparty under the related Swap Agreement after the
Notes have been paid in full, all as provided in this Indenture.
The Indenture Trustee, as indenture trustee on behalf of the
Noteholders and each Cross-Currency Swap Counterparty, 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 and
each Cross-Currency Swap Counterparty 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 hereto, 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.
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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.
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.
Each Floating Rate Note (including the Class A-5A Notes during the
initial Reset Period) initially will be represented by interests in a global
registered note certificate deposited with The Bank of
New York, as custodian
for DTC (the "DTC Custodian"), and registered in the name of a nominee for DTC.
Each class of Reset Rate Notes denominated in U.S. Dollars (including
the Class A-5A Notes during the initial Reset Period) may be offered and sold
only in the United States of America to a QIB, and initially will be represented
by interests in a global registered note certificate (each a "U.S. Rule 144A
Global Note Certificate"), deposited on the Closing Date with the DTC Custodian,
and registered in the name of a nominee for DTC. At all times, the entire
Outstanding Amount of any Class of Reset Rate Notes then denominated in U.S.
Dollars will be allocated to the corresponding U.S. Rule 144A Global Note
Certificate. On the Closing Date, a corresponding Non-U.S. Rule 144A Global Note
Certificate (as defined below) and Regulation S Global Note Certificate (as
defined below) for such class of Reset Rate Notes will be deposited with the
Regulation S Custodian (as defined below), registered in the name of a joint
nominee for Euroclear and Clearstream, Luxembourg and each such global
registered note certificate will have an outstanding principal balance of zero
for so long as such class of Reset Rate Notes is denominated in U.S. Dollars.
Each class of Reset Rate Notes denominated in a currency other than
U.S. Dollars (including the Class A-5B Notes during the initial Reset Period)
may be offered and sold only to QIB's or a non-U.S. Person, (as defined in
Regulation S) outside the United States of America in reliance on Rule 144A or
Regulation S, as applicable, and will be represented by interests in
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either a Rule 144A global registered note certificate (each a "Non-U.S. Rule
144A Global Note Certificate") or a Regulation S global registered note
certificate (each a "Regulation S Global Note Certificate," and collectively
with the Non-U.S. Rule 144A Global Note Certificate, the "Non-U.S. Global Note
Certificates"). Each Non-U.S. Global Note Certificate will be registered in the
name of a joint nominee for Euroclear and Clearstream, Luxembourg, and will be
deposited on the Closing Date with The Bank of
New York, acting through its
London branch, as common depositary for Euroclear and Clearstream, Luxembourg
(the "Regulation S Custodian"). At all times, there will be only one Non-U.S.
Rule 144A Global Note Certificate and one Regulation S Global Note Certificate
for each Class of Reset Rate Notes. At all times, the entire Outstanding Amount
of any class of Reset Rate Notes denominated in a currency other than U.S.
Dollars will be allocated between the corresponding Non-U.S. Rule 144A Global
Note Certificate and Regulation S Global Note Certificate for that class. On the
Closing Date, a corresponding U.S. Rule 144A Global Note Certificate will be
deposited with the DTC Custodian and will have an outstanding principal balance
of zero for so long as such Class of Reset Rate Notes is denominated in a
currency other than U.S. Dollars.
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 $2,532,844,000,
using an exchange rate of $1.1330 = EURO 1.00 with respect to the aggregate
principal amount of EURO 750,000,000 of the Class A-5B Notes). The aggregate
principal amount of Notes outstanding at any time may not exceed such amount
except as provided in Section 2.5. On each Spread Determination Date, upon
receipt of an Issuer Order, the Indenture Trustee shall deliver a revised
Schedule A for the related class of Reset Rate Notes to the Custodians.
Each Note shall be dated the date of its authentication. The Floating
Rate Class A Notes shall be issuable as registered Class A Notes in multiples of
$1,000. During the related initial Reset Period, the Class A-5A Notes shall be
issuable as registered in minimum denominations of $250,000 and additional
increments of $1, and the Class A-5B Notes shall be issuable as registered in
minimum denominations of EURO 250,000 and additional increments of EURO 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. If a class of
Reset Rate Notes is denominated in U.S. Dollars, such Reset Rate Notes shall be
issuable as registered in minimum denominations of $250,000 and additional
increments of $1. If a class of Reset Rate Notes is denominated in a currency
other than U.S. Dollars, such class will be issued in minimum denominations of
the applicable currency equivalent of not less than $250,000 and additional
increments of the applicable currency equivalent of not less than $1.
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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.
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
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transferees, one or more new Notes in any authorized denominations and a like
aggregate principal amount.
On each Reset Date on which either the All Hold Rate is not applicable
or fewer than 100% of a class of Reset Rate Noteholders permissibly elect to
hold their Reset Rate Notes, the Indenture Trustee shall allocate the entire
Outstanding Amount of such class of Reset Rate Notes to either the U.S. Rule
144A Global Note Certificate or the Non-U.S. Global Note Certificates, as
appropriate. Any transfer of Reset Rate Notes (other than on a Reset Date)
between the related U.S. Rule 144A Global Note Certificate and the related
Non-U.S. Global Note Certificates is not permitted and any attempt or
inadvertent transfer shall be null and void and of no effect
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 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
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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
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 the
forms of Notes set forth in Exhibit A and the Reset Rate Notes shall accrue
interest as provided in ▇▇▇▇▇▇▇▇ ▇-▇, 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
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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. for the Floating Rate Notes and the
Class A-5A Notes and The Bank of
New York (Nominees) Limited for the Class A-5B
Notes), 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 in
installments on each applicable Distribution Date as provided in the forms of
Note set forth in Exhibit A and, the principal of each class of Reset Rate Notes
shall be payable on each applicable Distribution Date as set forth in Appendix
A-2. 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
8
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, 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 Note (as defined
below) representing such Note Owner's interest in such Note, except as provided
in Section 2.12. Unless and until definitive, fully registered Notes (the
"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
9
subject to Section 406 of ERISA or Section 4975 of the Code, such Note Owner
shall be deemed to have represented that such acquisition or purchase will not
constitute or otherwise result in 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. 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 to the Noteholders is required under this Indenture, 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 communication
specified herein to be given to Noteholders to the applicable Clearing Agency.
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 a Definitive Note by, for or with the
assets of, an employee benefit plan or other retirement arrangement subject to
Section 406 of ERISA or Section 4975 of the Code, such Note Owner shall be
deemed to have represented that such acquisition or purchase will not constitute
or otherwise result in 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. Any transfer found to have been made in violation
of such representation shall be null and void and of no effect.
10
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-3 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 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 (other than Investment Earnings on any Accumulation Account, any Euro
Account, any Other Currency Account or the Reserve Account) on a Distribution
Date (other than any Eligible Investments deposited therein that will mature on
the Business Day preceding a subsequent Distribution Date), or with respect to
any Swap Counterparty amounts on deposit in the relevant Trust Accounts (other
than Investment Earnings on any Accumulation Account, any Euro Account, any
Other Currency Account or the Reserve Account) 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, 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.
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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;
(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
12
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 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).
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
and all such financing statements, continuation statements, 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
13
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.
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
14
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 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
15
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 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 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
16
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
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 Cross-Currency 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 Indenture Trustee has provided reasonable notice to the Rating
Agencies of such amendment and each Rating Agency has provided written
confirmation that the then-current rating of the Notes will not be lowered or
withdrawn. No Swap Agreement entered into by the Issuer may be amended or
modified unless 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,
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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;
(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;
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(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).
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 2003-7 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 2003-7 is to be so released.
SECTION 3.12 NO OTHER BUSINESS. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the
Trust Student Loans 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 2.9, 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
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(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 may make, or
cause to be made, distributions to the Servicer, the Eligible Lender Trustee,
the Indenture Trustee, the Noteholders, any Swap Counterparty, the Remarketing
Agents, the Administrator and the Depositor 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 the
Depositor of its obligations under the Sale Agreement, ▇▇▇▇▇▇ ▇▇▇ 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 and each Rating Agency, 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
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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
(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
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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 end of the Collection Period immediately
preceding the later of (a) the end of the Collection Period for the June 2010
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 exercised its option to
purchase the Trust Estate as described in Section 6.1A 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
▇▇▇▇▇▇ ▇▇▇ 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
underwriter 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 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 quarterly 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 6.1A of the
Administration Agreement with respect to each such future quarterly Distribution
Date.
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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
(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.
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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:
(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
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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 and any Swap
Counterparty, 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, 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 (and, if applicable, any Swap Counterparty) 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, any Swap Counterparty 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, any Swap Counterparty or the Noteholders allowed in any judicial
proceedings relative to the Issuer, its creditors and its property;
25
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders and any
Swap Counterparty 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 and any Swap Counterparty 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.
(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, and after the Notes have been paid in full,
and subject to the provisions of Section 11.19, any Swap Counterparty.
(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 each Cross-Currency Swap Counterparty,
and it shall not be necessary to make any Noteholder or any Cross-Currency Swap
Counterparty 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;
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(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, any Swap Counterparty
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 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:
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FIRST: to the applicable Noteholders of each class of Reset Rate
Notes then bearing interest at a fixed rate, if that class of Reset Rate Notes
is then denominated in a currency other than U.S. Dollars, to the related Swap
Counterparty, 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 to
zero provided, however;
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 the Outstanding Amount of the Class A Notes
and, if applicable, the amount of any Swap Interest Payments and Swap
Termination Payments due and payable by the Issuer to each Swap Counterparty
under this clause FIFTH:
A: to the Class A Noteholders (other than any class of Reset
Rate Noteholders for which a Swap Agreement is in effect), for
amounts due and unpaid on the Class A Notes for interest at the
applicable Note Rate, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Class A
Notes for such interest; and
B: if one or more Swap Agreements are then in effect, to each
Swap Counterparty, the amount of any Swap Interest Payments due
and payable by the Issuer (other than as paid to that Swap
Counterparty under clause FIRST); and
C: if one or more Swap Agreements are then in effect, to the
Swap Counterparties, the amount of any Swap Termination Payments
due to the related Swap Counterparty due to a Swap Termination
Event (as defined in the related Swap Agreement) resulting from a
payment default by the Issuer or the bankruptcy or insolvency of
the Issuer;
SIXTH: A: So long as any class of Reset Rate Notes is denominated in
a currency other than U.S. Dollars, pro rata (1) to the Class A Noteholders
(other than the holders of the related class of Reset Rate Notes denominated in
a currency other than U.S. Dollars), ratably, an amount sufficient to reduce the
respective principal balance of the Class A Notes to zero and (2) to the Swap
Counterparty an amount sufficient to reduce the U.S. Dollar Equivalent Principal
Amount of the related class of Reset Rate Notes to zero; and
B: if all classes of Reset Rate Notes are then denominated in U.S.
Dollars, pro rata (1) to the Class A Noteholders, ratably, an amount sufficient
to reduce the respective principal balances of the Class A Notes to zero and (2)
to the Swap Counterparty, the amount (to the extent not paid under clause FIFTH
above) of any Swap Termination Payment due to the Swap Counterparty due to a
Termination Event resulting from a "Cross Default" applicable to the related
Swap Counterparty of the related Swap Agreement.
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SEVENTH: to the Class B Noteholders for amounts due and unpaid
on the Class B Notes for interest at the Class B Note Rate, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Class B Notes for such interest;
EIGHTH: to the Class B Noteholders, ratably without preference
or priority of any kind, 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 above;
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.
In the event that the related Swap Agreement has terminated, all
payments by the Trust to the Noteholders of a class of Reset Rate Notes then not
denominated in U.S. Dollars will be made in the applicable currency utilizing
the exchange rate set forth in the related Swap Agreement prior to its
termination.
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 Trust Estate. In determining whether to
maintain possession of the Indenture Trust Estate, the
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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,
any Noteholder shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest on such 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.
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
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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, ▇▇▇▇▇▇ ▇▇▇, 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, ▇▇▇▇▇▇ ▇▇▇, the
Administrator or the Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Depositor, ▇▇▇▇▇▇ 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, ▇▇▇▇▇▇ ▇▇▇, 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, ▇▇▇▇▇▇ 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
36
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
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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 2.9 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 information, documents and reports required to be filed by the
Issuer pursuant to clauses (i) and
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(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 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
2.3B 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 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
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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 ▇▇▇▇▇▇ ▇▇▇ in accordance with
Section 6 of the Purchase Agreement, and each Noteholder, by the acceptance of a
Note, consents to any such release.
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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 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;
43
(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 hereto), 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);
(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
44
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 to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
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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 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 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.
All notices of redemption shall state:
(i) the Redemption Date;
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(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;
(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
47
(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.
(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
48
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 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
49
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: The Bank of
New York, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇, Attn: Corporate Trust - Structured Finance with a copy to its Corporate
Trust Office.
(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 2003-7, in
care of Chase Manhattan Bank USA, National Association, Christiana Center/OPS4,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Department; with copies to JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇.,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance Services; and the
Administrator, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Trust
Administration, or any other address previously furnished in writing to the
Indenture Trustee by 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
50
certified mail, return receipt requested, to (i) in the case of Moody's, at the
following address: ABS Monitoring Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, (ii) in the case of Standard & Poor's, at the following address: ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Asset Backed
Surveillance Department, 32nd Floor, and (iii) in the case of Fitch, at the
following address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 address set forth
in the related Swap Agreement.
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 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
51
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
Cross-Currency 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 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
52
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 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
53
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.
SECTION 11.19 SUBORDINATION. All rights and interest of each
Cross-Currency Swap Counterparty in the security interest granted to the
Indenture Trustee under this Indenture shall be fully subordinated to the
interests of the Noteholders. No Cross-Currency Swap Counterparty shall have any
rights, implied or otherwise, in the Collateral until after the Outstanding
Amount of the Notes has been reduced to zero and the Noteholders have been paid
all amounts owed to them under this Indenture. Notwithstanding the foregoing,
the provisions of this Section 11.19 shall not modify or otherwise affect the
contractual priority of payments set forth in Section 5.4(b) hereof or Section 2
of the Administration Agreement. More specifically, no Cross-Currency Swap
Counterparty shall have any voting rights or rights to exercise any remedies
under this Indenture until after the Outstanding Amount of the Notes has been
reduced to zero and the Noteholders have been paid all amounts owed to them
under this Indenture. After the Outstanding Amount of the Notes has been reduced
to zero and the Noteholders have been paid all amounts owed to them under this
Indenture, each Cross-Currency Swap Counterparty shall have all of the rights
and obligations, including all voting rights, of the Noteholders set forth in
this Indenture.
54
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 2003-7
By: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual capacity but solely
as Eligible Lender Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual capacity but solely
as Eligible Lender Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Agent
55
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SLM CORPORATION
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent
56
APPENDIX A-1
DEFINITIONS AND USAGE
Series 2003-7
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 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
DEFINITIONS
"30/360" means that interest is calculated on the basis of a 360-day year
consisting of twelve 30-day months.
"91-DAY TREASURY ▇▇▇▇ RATE" shall mean 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 ▇▇▇▇ 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 ▇▇▇▇ auction is held
in a particular week, then the 91-day Treasury ▇▇▇▇ 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 ▇▇▇▇ 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 Floating Rate Notes or a class of Reset Rate Notes that bears interest
at a floating rate of interest, the period from and including the immediately
preceding Distribution Date for such class of Notes, or in the case of the
initial such period, the Closing Date, to but excluding such current
Distribution Date; provided that if more than one Interest Rate Change Date
occurs for any class of Reset Rate Notes 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 that
bears interest at a fixed rate and (x) is denominated in U.S. Dollars, the
period from and including the 15th day of the month of the immediately preceding
quarterly Distribution Date, to and including the 14th day of the month of the
then-current Distribution Date for that class, or (y) is denominated in a
currency other than U.S. Dollars, (A) 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 or (B) as
otherwise specified on the related Schedule A of such class of Reset Rate Notes;
provided, however, that the initial Accrual Period for the Class A-5B Notes will
begin on the Closing Date and end on June 14, 2004.
"ACCUMULATION ACCOUNT" means each account designated as such, established
and maintained pursuant to Section 2.3A.4 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 (ISMA)" means a calculation in accordance with the
definition of "Actual/Actual" adopted by the International Securities Market
Association ("ISMA"), which means that interest is calculated on the following
basis:
(1) where the number of days in the relevant Accrual Period is equal
to or shorter than the Determination Period during which such Accrual
Period ends, the number of days in such Accrual Period divided by the
product of (A) the number of days in such Determination Period and (B) the
number of Distribution Dates that would occur in one calendar year; or
(2) where the Accrual Period is longer than the Determination Period
during which the Accrual Period ends, the sum of:
(A) the number of days in such Accrual Period falling in the
Determination Period in which the Accrual Period begins divided by the
product of (x) the number of days in such Determination Period and (y)
the number of Distribution Dates that would occur in one calendar
year; and
(B) the number of days in such Accrual Period falling in the
next Determination Period divided by the product of (x) the number of
days in such Determination Period and (y) the number of Distribution
Dates that would occur in one calendar year;
where "Determination Period" means the period from and including one Calculation
Date to but excluding the next Calculation Date and "Calculation Date" means, in
each year, each of those days in the calendar year that are specified herein as
being the scheduled Distribution Dates; provided, however, that the first
Determination Period for the Class A-5B Notes is 366 days.
"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 such 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, as amended and supplemented to date, between the
Administrator and the Depositor, as further supplemented by the Supplement, and
as such agreement may be further amended or supplemented from time to time.
"ADMINISTRATION FEE" has the meaning specified in Section 2.12 of the
Administration Agreement.
"ADMINISTRATOR" means ▇▇▇▇▇▇ Mae, in its capacity as administrator of the
Trust and the Trust Student Loans in accordance with the Administration
Agreement.
Appendix A-1-3
"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 3.1C. 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 that is denominated
in U.S. Dollars during the then-current Reset Period and the immediately
following Reset Period only, the applicable Index plus or minus the related
Spread (if the related class of Reset Rate Notes is in a floating rate mode) or
the applicable fixed rate, which may be expressed as the fixed rate pricing
benchmark plus or minus a spread (if the related class of Reset Rate Notes is in
fixed rate mode), that the Remarketing Agents, in consultation with the
Administrator, determine will be in effect, 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, 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 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, with respect to a Distribution Date or any related
Monthly Servicing Payment Date, the sum of the following amounts received with
respect to the related
Appendix A-1-4
Collection Period (or, in the case of a Monthly Servicing Payment Date, the
applicable portion thereof) to the extent not previously distributed: (i) all
collections received by the Servicer on the Trust Student Loans (including any
Guarantee Payments received with respect to the Trust Student Loans but net of
(x) any collections in respect of principal on the Trust Student Loans applied
by the Trust to repurchase guaranteed loans from the Guarantors in accordance
with the Guarantee Agreements and (y) 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), with
respect to the Trust Student Loans for such Collection Period including
Consolidation Loan rebate fees if any); (ii) any Interest Subsidy Payments and
Special Allowance Payments received by the Servicer or the Eligible Lender
Trustee during such Collection Period with respect to the Trust Student Loans;
(iii) all Liquidation Proceeds from any Trust Student Loans which became
Liquidated Student Loans during such Collection Period in accordance with the
Servicer's customary servicing procedures, and all Recoveries in respect of
Liquidated Student Loans which were written off in prior Collection Periods or
during such current Collection Period; (iv) the aggregate Purchase Amounts
received during such Collection Period for 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;
(v) the aggregate purchase amounts received during such Collection Period for
Trust Student Loans purchased by ▇▇▇▇▇▇ ▇▇▇, (vi) the aggregate amounts, if any,
received from ▇▇▇▇▇▇ Mae, 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, with respect to the Trust Student Loans
pursuant to Section 3(C) of the Sale Agreement or Section 3.5 of the Servicing
Agreement, respectively; (vii) amounts received by the Servicer pursuant to
Sections 3.1 and 3.12 of the Servicing Agreement during such Collection Period;
(viii) Investment Earnings for such Distribution Date and any interest remitted
to the Collection Account by the Administrator pursuant to Section 2.4 of the
Administration Agreement; (ix) Investment Earnings for that Distribution Date
earned on amounts on deposit in the Reserve Account, any Euro Account (converted
to U.S. Dollars at the applicable market rate), any Other Currency Account
(converted to U.S. Dollars at the applicable market rate), Remarketing Fee
Account and any Accumulation Account; (x) amounts transferred from the
Remarketing Fee Account in excess of the sum of the Reset Period Target Amounts
for that Distribution Date; (xi) all amounts on deposit in any Supplemental
Interest Account for that Distribution Date; (xii) any payments received under
the Interest Rate Cap Agreement; (xiii) all Swap Receipts and any other amounts
received by the Trust from any Swap Counterparty (including, without limitation,
the Initial Swap Counterparty), but only to the extent paid in U.S. Dollars, for
that Distribution Date; and (xiv) amounts transferred from the Reserve Account
in excess of the Specified Reserve Account Balance as of that Distribution Date;
provided, however, that if with respect to any Distribution Date there would not
be sufficient funds, after application of Available Funds, as defined above, and
application of amounts available from the Reserve Account and the Capitalized
Interest Account, to pay any of the items specified in clauses 1 through 5 of
Section 2.7C of the Administration Agreement (but excluding clause 5, and
including clause 6, in the event that a condition exists as described in either
clause (a) or (b) of the last paragraph of Section 2.7C of the Administration
Agreement, then Available Funds for such Distribution Date shall include 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) on the related Determination Date which
would have
Appendix A-1-5
constituted Available Funds for the Distribution Date succeeding such
Distribution Date, up to the amount necessary to pay such items, and the
Available Funds for such succeeding Distribution Date shall 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 Agreements, any
Remarketing Agreement, the Interest Rate Cap Agreement, any 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.
"▇▇▇▇ 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 One-Month, Two-Month
and Three-Month LIBOR and Three-Month EURIBOR 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 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, the Luxembourg listing agent, if the related
class of Reset Rate Notes is then listed on the Luxembourg Stock Exchange.
"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: (i) if that class did
not have at least one related Swap Agreement in effect during the previous Reset
Period, a Three-Month LIBOR-based rate equal to the floating rate applicable for
the most recent Reset Period during which the Failed Remarketing Rate was not in
effect, or (ii) if that class had one or more related Swap Agreements in effect
during the previous Reset Period, the weighted average of the floating rates of
interest that were due to the related Swap Counterparties from the Trust during
the previous Reset Period for any
Appendix A-1-6
class that bore interest during the previous reset period at a fixed rate. This
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 2.3A.3 of the Administration
Agreement.
"CAPITALIZED INTEREST ACCOUNT INITIAL DEPOSIT" means $19,000,000.
"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-5A Note or a Class A-5B Note.
"CLASS A NOTE INTEREST SHORTFALL" means, with respect to any Distribution
Date, the excess of (i) the Class A Noteholders' Interest Distribution Amount on
the preceding Distribution Date for the class over (ii) the amount of interest
actually distributed to the Class A Noteholders on such preceding Distribution
Date, plus interest on the amount of such excess, to the extent permitted by
law, at the interest rate applicable for each such class of Notes from such
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 such 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, with respect to any
Distribution Date, the sum of the Class A Noteholders' Interest Distribution
Amount and the Class A Noteholders' Principal Distribution Amount for such
Distribution Date.
"CLASS A NOTEHOLDERS' INTEREST DISTRIBUTION AMOUNT" means, with respect to
any Distribution Date, the sum of (i) 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-5A Rate or the Class A-5B Rate, as applicable, for the related Accrual
Period on the Outstanding Amount with respect to all classes of Class A Notes on
the immediately preceding Distribution Date 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 (ii) the Class
A Note Interest Shortfall for such Distribution Date.
"CLASS A NOTEHOLDERS' PRINCIPAL DISTRIBUTION AMOUNT" means, with respect to
any Distribution Date, the Principal Distribution Amount times the Class A
Percentage for such Distribution Date plus any Class A Note Principal Shortfall
as of the close of business on the preceding Distribution Date; PROVIDED,
HOWEVER, that the Class A Noteholders' Principal Distribution Amount shall not
exceed the Outstanding Amount of the Class A Notes, less all
Appendix A-1-7
amounts, other than Investment Earnings, on deposit in any Accumulation Account.
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-5A Maturity
Date or the Class A-5B Maturity Date, as the case may be, the principal required
to be distributed to the Class A Noteholders of the related class will include
the amount required to reduce the Outstanding Amount of the Class A Notes of
such class to zero.
"CLASS A NOTES" means the Floating Rate Class A Notes and the Reset Rate
Notes.
"CLASS A NOTEHOLDER" means the Person in whose name a Class A Note is
registered in the Note Register.
"CLASS A PERCENTAGE" means the 100% minus the Class B Percentage.
"CLASS A-1 MATURITY DATE" means the September 2010 Distribution Date.
"CLASS A-2 MATURITY DATE" means the September 2013 Distribution Date.
"CLASS A-3 MATURITY DATE" means the September 2016 Distribution Date.
"CLASS A-4 MATURITY DATE" means the March 2019 Distribution Date.
"CLASS A-5A MATURITY DATE" means the December 2033 Distribution Date.
"CLASS A-5B MATURITY DATE" means the December 2033 Distribution Date.
"CLASS A-1 NOTEHOLDER" means the Person in whose name a Class A-1 Note is
registered in the Note Register.
"CLASS A-2 NOTEHOLDER" means the Person in whose name a Class A-2 Note is
registered in the Note Register.
"CLASS A-3 NOTEHOLDER" means the Person in whose name a Class A-3 Note is
registered in the Note Register.
"CLASS A-4 NOTEHOLDER" means the Person in whose name a Class A-4 Note is
registered in the Note Register.
"CLASS A-5A NOTEHOLDER" means the Person in whose name a Class A-5A Note is
registered in the Note Register.
"CLASS A-5B NOTEHOLDER" means the Person in whose name a Class A-5B Note is
registered in the Note Register.
"CLASS A-1 NOTES" means the $269,857,000 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 $296,165,000 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 $362,511,000 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 $311,079,000 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-5A NOTES" means the $367,497,000 Reset Rate Class A-5A Student
Loan-Backed Notes issued by the Trust pursuant to the Indenture, substantially
in the form of Exhibit A-5 thereto.
"CLASS A-5B NOTES" means the EURO 750,000,000 Reset Rate Class A-5B Student
Loan-Backed Notes issued by the Trust pursuant to the Indenture, substantially
in the form of Exhibit A-6 thereto, which upon issuance will have U.S. Dollar
Equivalent Principal Amount of $849,750,000.
"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 0.01%, based on an Actual/360 year. For the initial Accrual Period,
the Class A-1 Rate shall mean the Initial Accrual Rate, plus 0.01%, based on an
Actual/360 accrual method. For the initial Accrual Period, the Class A-1 Rate
shall mean the rate determined by the following formula:
X + [24/31 x (Y - X)]
where:
X = One-Month LIBOR, and
Y = Two-Month LIBOR
"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 0.03%, based on an Actual/360 year. For the initial Accrual Period,
the Class A-2 Rate shall mean the Initial Accrual Rate, plus 0.03%, based on an
Actual/360 accrual method. For the initial Accrual Period, the Class A-2 Rate
shall mean the rate determined by the following formula:
X + [24/31 x (Y - X)]
where:
X = One-Month LIBOR, and
Y = Two-Month LIBOR
Appendix A-1-9
"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 0.11%, based on an Actual/360 year. For the initial Accrual Period,
the Class A-3 Rate shall mean the Initial Accrual Rate, plus 0.11%, based on an
Actual/360 accrual method. For the initial Accrual Period, the Class A-3 Rate
shall mean the rate determined by the following formula:
X + [24/31 x (Y - X)]
where:
X = One-Month LIBOR, and
Y = Two-Month LIBOR
"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 0.20%, based on an Actual/360 year. For the initial Accrual Period,
the Class A-4 Rate shall mean the Initial Accrual Rate, plus 0.20%, based on an
Actual/360 accrual method. For the initial Accrual Period, the Class A-4 Rate
shall mean the rate determined by the following formula:
X + [24/31 x (Y - X)]
where:
X = One-Month LIBOR, and
Y = Two-Month LIBOR
"CLASS A-5A RATE" means, for any Accrual Period until and including the
Initial Reset Date for the Class A-5A Notes, Three-Month LIBOR, as determined on
the related LIBOR Determination Date, plus 0.16%, based on an Actual/360 accrual
method with the initial Accrual Period consisting of 55 days. For the initial
Accrual Period, the Class A-5 Rate shall mean the rate determined by the
following formula:
X + [24/31 x (Y - X)]
where:
X = One-Month LIBOR, and
Y = Two-Month LIBOR
The Class A-5A 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-5B RATE" means, for any Accrual Period until and including the
Initial Reset Date for the Class A-5B Notes, 3.80% per annum based on a
Actual/Actual ("ISMA") accrual method with the initial Accrual Period,
consisting of 329 days. The Class A-5B Rate shall be
Appendix A-1-10
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 September 2039 Distribution Date.
"CLASS B NOTE INTEREST SHORTFALL" means, with respect to any Distribution
Date, the excess of (i) the Class B Noteholders' Interest Distribution Amount on
the preceding Distribution Date over (ii) the amount of interest actually
distributed to the Class B Noteholders on such preceding Distribution Date, plus
interest on the amount of such excess interest, to the extent permitted by law,
at the Class B Rate from such 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 such Distribution Date over (ii) the amount of principal
actually distributed to the Class B Noteholders on such 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, with respect to any
Distribution Date, the sum of the Class B Noteholders' Interest Distribution
Amount and the Class B Noteholders' Principal Distribution Amount for such
Distribution Date.
"CLASS B NOTEHOLDERS' INTEREST DISTRIBUTION AMOUNT" means, with respect to
any Distribution Date, the sum of (i) 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, on the Closing Date) after giving effect to all
principal distributions to Class B Noteholders on such date and (ii) the Class B
Note Interest Shortfall for such Distribution Date.
"CLASS B NOTEHOLDERS' PRINCIPAL DISTRIBUTION AMOUNT" means, with respect to
any Distribution Date, (a) the product of (i) the Principal Distribution Amount,
and (ii) the Class B Percentage for that Distribution Date, plus (b) the Class B
Note Principal Shortfall as of the close of business on the preceding
Distribution Date; PROVIDED, HOWEVER, that the Class B Noteholders' Principal
Distribution Amount shall 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 $75,985,000 Floating Rate Class B Student
Loan-Backed Notes issued by the Trust pursuant to the Indenture, substantially
in the form of Exhibit A-7 thereto.
"CLASS B PERCENTAGE" means with respect to any Distribution Date, (i) prior
to the Stepdown Date or with respect to any Distribution Date on which a Trigger
Event is in effect, zero; and (ii) on or after the Stepdown Date and provided
that no Trigger Event is in effect, a
Appendix A-1-11
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 the aggregate principal balance of all
outstanding 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
Period, Three-Month LIBOR, as determined on the related LIBOR Determination
Date, plus 0.57%, based on an Actual/360 year. For the initial Accrual Period,
the Class B Rate shall mean the Initial Accrual Rate, plus 0.57%, based on an
Actual/360 accrual method. For the initial Accrual Period, the Class B Rate
shall mean the rate determined by the following formula:
X + [24/31 x (Y - X)]
where:
X = One-Month LIBOR, and
Y = Two-Month LIBOR
"CLEARING AGENCY" means DTC, Euroclear or Clearstream, Luxembourg, as
applicable, or another organization registered as a "clearing agency" pursuant
to applicable law. The initial Clearing Agency for the Floating Rate Notes and
the Class A-5A Notes shall be DTC and the initial nominee for such Clearing
Agency shall be Cede & Co. The initial Clearing Agencies for the Class A-5B
Notes shall be Euroclear and Clearstream, Luxembourg and the initial nominee for
such Clearing Agencies shall be The Bank of New York (Nominees) Limited.
"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, LUXEMBOURG" means Clearstream Banking, societe anonyme,
Luxembourg, or any successor thereto.
"CLOSING DATE" means July 22, 2003.
"CMT RATE" shall mean, 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 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
Appendix A-1-12
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.
"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 2.3A.1 of the Administration Agreement.
Appendix A-1-13
"COLLECT 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 August 31, 2003, 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" shall mean, 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 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Group (telephone: (▇▇▇) ▇▇▇-▇▇▇▇, facsimile: (212)
815-3883) 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, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Department (telephone: (▇▇▇) ▇▇▇-▇▇▇▇; facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇); 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).
Appendix A-1-14
"CROSS-CURRENCY SWAP AGREEMENT" means, with respect to a class of Reset
Rate Notes in Foreign Exchange Mode, the Swap Agreement between the Trust and
the related Cross-Currency Swap Counterparty which, (i) in the case of the
initial Cross-Currency Swap Agreement, converts all non-U.S. monies paid by
purchasers of the related class of Reset Rate Notes into U.S. Dollars, (ii)
converts all payments of U.S. Dollars by the Trust to the related Reset Rate
Noteholders into the applicable currency, and (iii) pays to the Paying Agent, on
behalf of the Trust, for the benefit of the tendering Reset Rate Noteholders,
additional interest at the interest rate applicable to the tendered Reset Rate
Notes resulting from any required delay in Reset Date payments through Euroclear
and Clearstream.
"CROSS-CURRENCY SWAP COUNTERPARTY" means the Eligible Swap Counterparty
which is a party, in its capacity as swap counterparty, to the related
Cross-Currency Swap Agreement.
"CUTOFF DATE" means May 26, 2003.
"DAY COUNT BASIS" means 30/360, Actual/360, Actual/365 (fixed),
Actual/Actual (accrual basis), Actual/Actual (ISMA) or Actual/Actual (payment
basis), as applicable.
"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
Appendix A-1-15
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 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.
"DEPOSITORY AGREEMENTS" means the Note Depository Agreements.
"DETERMINATION DATE" means, with respect to the Collection Period preceding
any Distribution Date, the first Business Day preceding such Distribution Date.
"DISTRIBUTION DATE" means (i) with respect to the Floating Rate 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 September
15, 2003, and (ii) with respect to the Reset Rate Notes, the 15th day of any of
March, June, September and/or December, or, if such day is not a Business Day,
the immediately following Business Day, as set forth in Schedule A to the
related Reset Rate Note.
"DTC" means the Depository Trust Company, or any successor thereto.
Appendix A-1-16
"ELIGIBLE DEPOSIT ACCOUNT" means (i) with respect to the Trust Accounts
other than the Euro Account and the Other Currency Account, 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 ▇▇▇▇▇'▇, Standard & Poor's, and, if such institution is rated
by Fitch, Fitch, in one of their generic rating categories which signifies
investment grade and (ii) with respect to the Euro Account and the Other
Currency Account, a segregated account with the London Paying Agent.
"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 Standard & Poor's 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 ▇▇▇▇▇'▇, 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, ▇▇▇▇▇▇ ▇▇▇, 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 ▇▇▇▇▇▇
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
Appendix A-1-17
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);
(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; and
(g) any other investment which would not result in the downgrading or
withdrawal of any rating of the Securities 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 Moody's, "Aaa" for long-term investments (or
the equivalent) and "P-1" for short-term investments (or the equivalent), and
(iii) in the case of Standard & Poor's, "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 Moody's and Standard & Poor's shall be considered to be rated by
each of the Rating Agencies in the highest investment category granted thereby.
"ELIGIBLE LOANS" has the meaning specified in the Purchase Agreement or the
Sale Agreement, as applicable.
"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 SWAP COUNTERPARTY" means any 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.
Appendix A-1-18
"EURO ACCOUNT" means each account designated as such, established and
maintained pursuant to Section 2.3A.7 of the Administration Agreement.
"EUROCLEAR" means Euroclear Bank S.A./N.V., as the operator of the
Euroclear System or any successor thereto.
"EURIBOR" see "Three-Month EURIBOR".
"EURIBOR DETERMINATION DATE" means, for each Accrual Period, the second
Business Day before the beginning of that Accrual Period.
"EUROPEAN CLEARING SYSTEMS" means Euroclear or Clearstream, Luxembourg.
"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 C to the Trust Agreement, evidencing the right to receive
payments thereon as set forth in Sections 2.7C.14, 2.8.1D, 2.8.2B.2 and 2.8.3B.4
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.
"EXTENSION RATE" means, (i) for each quarterly Distribution Date when the
Failed Remarketing Rate is in effect with respect to a class of Reset Rate Notes
in Foreign Exchange Mode, the rate of interest payable to the related Swap
Counterparty; not to exceed Three-Month LIBOR plus 0.75%, unless the Remarketing
Agents, in consultation with the Administrator, determine that market conditions
or some other benefit to the Trust requires a higher rate;
Appendix A-1-19
provided that in such case the Rating Agency Condition is satisfied; and (ii) in
the case of the Initial Cross-Currency Swap Agreement, Three-Month LIBOR plus
0.75%.
"FAILED REMARKETING" means, with respect to a class of Reset Rate Notes and
each related Rest Date, the situation where (i) 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, (ii) the
Remarketing Agents are unable to establish the related Spread or fixed rate of
interest on the Spread Determination Date, (iii) either sufficient committed
purchasers cannot be obtained for all of the tendered Reset Rate Notes at the
Spread or fixed rate of interest established on the Spread Determination Date or
any committed purchasers default on their purchase obligations (and the
Remarketing Agents do not choose to purchase such Reset Rate Notes themselves),
(iv) the Remarketing Agents, in consultation with the Administrator, are unable
to obtain one or more Swap Agreements meeting the required criteria, (v) any of
the conditions specified in Section 8 of the Remarketing Agreement have not been
satisfied, or (vi) any applicable Rating Agency Condition has not been
satisfied.
"FAILED REMARKETING RATE" means, for any applicable Reset Period and any
class of Reset Rate Notes then denominated in U.S. Dollars, Three-Month LIBOR
plus 0.75%; and for any class of Reset Rate Notes in Foreign Exchange Mode
during a Reset Period, as will be determined on the related Spread Determination
Date pursuant to the terms of the related Cross-Currency Swap Agreement (and for
the initial Reset Period for the Class A-5B Notes, the Failed Remarketing Rate
due to the Class A-5B Noteholders will be Three-Month EURIBOR plus 0.55%).
"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.
"FLOATING RATE CLASS A NOTES" means the Class A-1, Class A-2, Class A-3 and
Class A-4 Notes.
"FLOATING RATE NOTES" means the Floating Rate Class A Notes and the Class B
Notes which includes the Class A-5A Reset Rate Notes for the initial period.
"FOREIGN EXCHANGE MODE" means, with respect to a class of Reset Rate Notes,
that such class is then denominated in a currency other than U.S. Dollars during
the related Reset Period.
Appendix A-1-20
"GLOBAL NOTE CERTIFICATE" means a global note certificate representing
interests in the Reset Rate Notes offered and sold in reliance on Rule 144A or
Regulation S, as applicable.
"GRANT" means mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create and ▇▇▇▇▇ ▇ ▇▇▇▇ 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 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.
"GUARANTORS" means, collectively, those entities listed on Attachment B to
the Sale Agreement and 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 ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇/▇▇▇▇▇▇, 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) by a holder or beneficial owner of a Reset Rate
Note delivered to a Remarketing Agent on or before the Notice Date that such
holder or beneficial owner desires to hold its U.S. Dollar denominated class of
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
commencing on the related Reset Date.
"INDENTURE" means the Indenture dated as of July 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
Appendix A-1-21
of the Noteholders (including all property and interests 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 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 EURIBOR, LIBOR, a Commercial Paper Rate, the CMT
Rate, the Federal Funds Rate, the 91-day Treasury ▇▇▇▇ Rate, the Prime Rate or
any other interest rate index specified in Schedule A to either 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-5B Notes) and the Accrual Period commencing on the Closing Date to, but
excluding, the first Distribution Date, LIBOR as determined on the second
Business Day before the beginning of the initial Accrual Period. For the initial
Accrual Period, the Initial Accrual Rate shall mean the rate determined by the
following formula:
X + [24/31 x (Y - X)]
where:
X = One-Month LIBOR, and
Y = Two-Month LIBOR
"INITIAL DOLLAR/EURO CONVERSION RATE" means an exchange rate of $1.1330 =
EURO 1.00.
"INITIAL POOL BALANCE" means the Pool Balance as of the Cutoff Date, which
is $2,507,766,445.
Appendix A-1-22
"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-5A Notes and Class A-5B Notes,
the Distribution Date in June 2008 and June 2010, respectively.
"INITIAL RESET DATE NOTICE" means the written notice delivered pursuant to
Section 3(a) of the Reset Rate Note Procedures.
"INITIAL RESET DATE CURRENCY SWAP AGREEMENT" means, with respect to the
Class A-5B Notes, the Swap Agreement, dated as of July 9, 2003, between the Swap
Agent, not in its individual capacity, but solely in its capacity as Swap Agent
for the Remarketing Agents pursuant to the Remarketing Agreement, and the
Initial Swap Counterparty, to convert all secondary market trade proceeds
received by the Remarketing Agents in U.S. Dollars on the Reset Date resulting
in a successful remarketing of the Class A-5B Notes or exercise of the related
Call Option at the end of the initial Reset Period for that Class, into Euros
for payment of principal to the tendering Reset Rate Noteholders.
"INITIAL SWAP AGREEMENTS" means with respect to the Class A-5B Notes, the
Cross-Currency Swap Agreement and the Reset Date Currency Swap Agreement, each
dated as of July 9, 2003, on a 1992 ISDA Master Agreement (Multicurrency-Cross
Border), including the related schedule and confirmation.
"INITIAL SWAP COUNTERPARTY" means CDC IXIS Capital Markets, London Branch,
and any successors or permitted assigns.
"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.
"INSOLVENCY PROCEEDS" has the meaning set forth in Section 6.1.B of the
Administration Agreement.
Appendix A-1-23
"INTEREST RATE CAP AGREEMENT" means the agreement between the Trust and
▇▇▇▇▇▇ Mae, dated July 9, 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 September 2004 Distribution Date.
"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 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 Notes that bear interest at a LIBOR or EURIBOR-based rate, the
related LIBOR or EURIBOR 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 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.
"INTEREST SWAP AGREEMENT" means, with respect to a class of Reset Rate
Notes that is denominated in U.S. Dollars and (i) bears a fixed rate of
interest, or (ii) bears interest based on an index other than LIBOR or a U.S.
Commercial Paper Rate, any Swap Agreement between the Trust and an Eligible Swap
Counterparty, to hedge the basis risk during the related Reset Period.
"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
July 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 2.3B of the Administration
Agreement.
"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.
Appendix A-1-24
"LIBOR" means One-Month, Two-Month and Three-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.
"LONDON PAYING AGENT" means, with respect to a class of Reset Rate Notes in
Foreign Exchange Mode, 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 Euro Account and the
Other Currency Account (if any) and shall initially be The Bank of New York
London.
"LUXEMBOURG PAYING AGENT" means, initially, The Bank of New York
(Luxembourg) S.A.
"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 August 15, 2003.
Appendix A-1-25
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor rating
agency.
"NOTE" and "NOTES" means the any of the Floating Rate Class A Notes, the
Reset Rate Notes and the Class B Notes.
"NOTE DEPOSITORY AGREEMENTS" means with respect to the Notes, the Letter of
Representations, dated July 22, 2003, among the Trust, the Eligible Lender
Trustee and the Indenture Trustee in favor of DTC, and with respect to the Reset
Rate Notes, the Instruction Letter from Issuer to Common Depositary, dated July
22, 2003 between the Trust and The Bank of New York (Nominees) Limited.
"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-5A Maturity Date, the Class A-5B 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" as of the close of business on a Distribution Date means
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-5A Rate,
the Class A-5B 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 Class A Noteholder, a Reset Rate Noteholder or a Class
B Noteholder, as the context requires.
"NOTICE DATE" means, for each class of Reset Rate Notes, 12:00 p.m. (noon),
New York City time, on the sixth Business 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.
Appendix A-1-26
"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.
"ONE-MONTH LIBOR" see "Three-Month LIBOR".
"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.
"OTHER CURRENCY ACCOUNT" means each account designated as such, established
and maintained pursuant to Section 2.3A.8 of the Administration Agreement.
"OUTSTANDING" means, as of the date of determination, all Notes theretofore
authenticated and delivered under the Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or delivered to the
Note Registrar for cancellation;
(ii) 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
(iii) 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
Appendix A-1-27
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; provided, however, that if a class of Reset Rate
Notes is then in Foreign Exchange Mode, the Outstanding Amount shall be based on
the U.S. Dollar Equivalent Principal Amount of such class.
"PAYING AGENT" means, with respect to the Notes (other than any class of
Reset Rate Notes denominated in a currency other than U.S. Dollars), 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 of and interest and any other amounts owing on the Notes on behalf of
the Trust. With respect to a class of Reset Rate Notes denominated in a currency
other than U.S. Dollars, Paying Agent means the London Paying Agent and the
Luxembourg Paying Agent.
"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" means as of any date the aggregate principal balance of the
Trust Student Loans on such date (including accrued interest thereon to the
extent such interest is expected to be capitalized), after giving effect to the
following, without duplication: (i) all payments received by the Trust through
such date from or on behalf of Obligors, (ii) all Purchase Amounts on Purchased
Student Loans received by the Trust through such date from ▇▇▇▇▇▇ ▇▇▇, the
Depositor or the Servicer, (iii) all Liquidation Proceeds and Realized Losses on
Trust Student Loans liquidated through such date, (iv) the aggregate amount of
adjustments to balances of Trust Student Loans permitted to be effected by the
Servicer under the Servicing Agreement, if any, recorded through such date, and
(v) the aggregate amount by which reimbursements by Guarantors of the unpaid
principal balance of defaulted Trust Student Loans through such 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
Appendix A-1-28
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" shall mean, 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.
"PURCHASE AGREEMENT" means the Purchase Agreement dated as of July 22,
2003, among ▇▇▇▇▇▇ 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.
Appendix A-1-29
"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, repurchased by the
Depositor pursuant to Section 6 of the Sale Agreement, purchased by ▇▇▇▇▇▇ ▇▇▇
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 (i) more than one year before the next Reset Date,
zero, and (ii) one year or less before the next Reset Date, an amount to be
deposited in 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, (i)
on any Reset Date, the Reset Period Target Amount, or (ii) on a Distribution
Date that is one year or less before the next Reset Date (a) the Reset Period
Target Amount multiplied by (b) 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 (c) 5.
"RATING AGENCY" means ▇▇▇▇▇'▇, Standard & Poor's 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 with respect to such Student Loan to the
extent allocable to principal, including any interest that had been or had been
expected to be capitalized.
"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.
Appendix A-1-30
"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 (i) LIBOR, four major banks in the
London interbank market selected by the Administrator and (ii) EURIBOR, four
major banks in the Euro-zone interbank market selected by the Administrator.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REMARKETING AGENCY AGREEMENT" means the collective reference to an Initial
Remarketing Agency Agreement and the related Supplemental Remarketing Agency
Agreement.
"REMARKETING AGENTS" means, initially, Credit Suisse First Boston LLC, ▇.▇.
▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & 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 AGENTS' UPFRONT FEE" means the upfront payment required under
the Remarketing Agreement in the amount of $5,000.
"REMARKETING AGREEMENT" means the remarketing agreement dated as of July
22, 2003 among the Remarketing Agents, the Administrator, the Swap Agent 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 2.3A.6 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 and the Rating 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 2.3A.2 of the Administration Agreement.
"RESERVE ACCOUNT INITIAL DEPOSIT" means $6,269,417.
"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).
Appendix A-1-31
"RESET DATE CURRENCY SWAP AGREEMENT" means, with respect to a class of
Reset Rate Notes in Foreign Exchange Mode, the Swap Agreement between the Swap
Agent, not in its individual capacity but solely in its capacity as Swap Agent
for the Remarketing Agents pursuant to the Remarketing Agreement and an Eligible
Swap Counterparty to convert all secondary market trade proceeds received by the
Remarketing Agents into U.S. Dollars on the effective date of such Swap
Agreement, and into the applicable currency for payment of principal to the
tendering Reset Rate Noteholders on the related Reset Date resulting in the
successful remarketing of related class of Reset Rate Notes or the exercise of
the related Call Option.
"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 a Distribution Date, which will be the
next Reset Date for such class of Reset Rate Notes; provided, that no Reset
Period may end after the Reset Rate Notes Maturity Date.
"RESET PERIOD TARGET AMOUNT" means, for each class of Reset Rate Notes and
any Distribution Date that is (i) more than one year before the next Reset Date,
zero, and (ii) 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 Outstanding Amount 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 Appendix B attached to
the Remarketing Agreement, as such schedule may be amended from time to time.
"RESET RATE NOTE PROCEDURES" means Appendix A-2 to the Indenture.
"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-5A Notes and the Class A-5B Notes.
"RESET RATE NOTES MATURITY DATE" means the Class A-5A Maturity Date and the
Class A-5B Maturity Date, respectively.
"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 Securities Act.
"SALE AGREEMENT" means the Sale Agreement dated as of July 22, 2003, among
the Eligible Lender Trustee on behalf of the Trust, the Trust, the Interim
Eligible Lender Trustee and the Depositor.
Appendix A-1-32
"▇▇▇▇▇▇ MAE" 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 ▇▇▇▇ 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 ▇▇▇▇▇▇ Mae 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 July 22,
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" with respect to any Distribution Date
means the greater of (i) 0.25% of the Pool Balance as of the close of business
on the last day of the related Collection Period and (ii) $3,761,650, provided
that in no event will that balance exceed the Outstanding Amount of the Notes.
For these purposes, as to any class of Reset Rate Notes then bearing interest at
a fixed rate, the Outstanding Amount of that class of Reset Rate Notes (or its
U.S. Dollar Equivalent Principal Amount, if applicable) will be reduced by any
amounts on deposit in the Accumulation Account for that class (exclusive of any
Investment Earnings).
"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 Index that will be in effect with respect to such class of Reset Rate
Notes during any Reset Period after the initial Reset Period so as to result in
a 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, 3:00
p.m., New York City time, on the third Business Day prior to the related Reset
Date.
Appendix A-1-33
"SPREAD DETERMINATION NOTICE" means the notice delivered by the Remarketing
Agents to the Noteholders of a class of Reset Rate Notes, the Indenture Trustee
and the Rating Agencies on each related Spread Determination Date containing the
information set forth in the Reset Rate Note Procedures.
"STANDARD & POOR'S" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., or any successor rating agency.
"STATE" means any one of the ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ or
the District of Columbia.
"STEPDOWN DATE" means the earlier to occur of (i) the Distribution Date in
September 2008 or (ii) the first date on which all of the Class A Notes are no
longer 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 2003-7 Administration
Agreement Supplement dated July 22, 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 2.3A.5 of the Administration
Agreement.
"SUPPLEMENTAL INTEREST ACCOUNT DEPOSIT AMOUNT" means, with respect to the
Class A-5B Notes, on the Closing Date, the Supplemental Interest Account Initial
Deposit, and for any Distribution Date thereafter, until the initial Reset Date
for the Class A-5B Notes, the lesser of:
(x) the product of
(1) the difference between (a) the Three-Month LIBOR (as determined
on the Interest Rate Determination Date for the Accrual Period
commencing on that Distribution Date) that will be payable by the
Trust to the initial currency Swap Counterparty pursuant to the
initial Cross-Currency Swap Agreement on the next Distribution
Date, and (b) an assumed rate of Investment Earnings that
satisfies the Rating Agency Condition;
(2) $849,750,000; and
(3) the actual number of days from that Distribution Date to the
initial Reset Date for the Class A-5B Notes, divided
by 360; and
(y) an amount that satisfies the Rating Agency Condition.
Appendix A-1-34
If any class of Reset Rate Notes is reset to bear interest at a fixed rate on
any future Reset Date, the Supplemental Interest Account Deposit Amount for such
class of Reset Rate Notes during the applicable Reset Period will be an amount,
and funded in accordance with a formula (in each case determined pursuant to the
Reset Rate Note Procedures), that satisfies the Rating Agency Condition.
"SUPPLEMENTAL INTEREST ACCOUNT INITIAL DEPOSIT" means $32,715,375.
"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 AGENT" means initially, CDC IXIS Capital Markets, London Branch for
the Initial Reset Date Currency Swap Agreement and for any subsequent Reset Date
Currency Swap Agreement, the entity appointed by the Remarketing Agents that is
acting as agent for the Remarketing Agents and for the benefit of the related
Reset Rate Noteholders, and directed by the Remarketing Agents to enter into a
Reset Date Currency Swap Agreement.
"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
Cross-Currency Swap Agreement and each Interest 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,
(ii) each Reset Date Currency Swap Agreement to be entered into from time to
time by the Swap Agent, as agent for the Remarketing Agents and for the benefit
of the holders of the related class of Reset Rate Notes, and an Eligible Swap
Counterparty and (iii) the Interest Rate Cap Agreement.
"SWAP COUNTERPARTY" means each Eligible Swap Counterparty from time to time
party to a Swap Agreement, the Initial Swap Counterparty and ▇▇▇▇▇▇ Mae under
the Interest Rate Cap Agreement.
"SWAP INTEREST PAYMENTS" means, with respect to each Distribution Date, the
U.S. Dollar amount payable to the related Swap Counterparty by the Trust as an
interest payment on the related class of Reset Rate Notes, pursuant to the
related Swap Agreement.
"SWAP PAYMENTS" means, with respect to each Distribution Date, the amount,
if any, payable to any 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 its respective 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.
Appendix A-1-35
"SWAP TERMINATION DATE" means the date on which each Swap Agreement
terminates in accordance with its terms, which with respect to each Initial Swap
Agreement is scheduled to be the related Initial Reset Date for the Class A-5B
Notes.
"SWAP TERMINATION PAYMENTS" shall have the meaning set forth in each Swap
Agreement.
"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 EURIBOR" means, with respect to any Accrual Period, the Euro
interbank offered rate for deposits in Euros having a maturity of three months
or the applicable Index Maturity which appears on Telerate Page 248 as of 11:00
a.m. Brussels time, on the related EURIBOR Determination Date. If the applicable
rate does not appear on Telerate Page 248, the rate for that day will be
determined on the basis of the rates at which deposits in Euros, having the
applicable Index Maturity and in a principal amount of not less than EURO
1,000,000, are offered at approximately 11:00 a.m., Brussels time, on that
EURIBOR Determination Date, to prime banks in the Euro-zone interbank market by
the Reference Banks. The Administrator will request the principal Euro-zone
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 the Euro-zone, selected by the Administrator, at
approximately 11:00 a.m., Brussels time, on that EURIBOR Determination Date, for
loans in Euros to leading European banks having the applicable Index Maturity
and in a principal amount of not less than EURO 1,000,000. If the banks selected
as described above are not providing quotations, three-month EURIBOR in effect
for the applicable Accrual Period will be three-month EURIBOR in effect for the
previous Accrual Period.
"THREE-MONTH LIBOR", "ONE-MONTH LIBOR" AND "TWO-MONTH LIBOR" mean, 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
Appendix A-1-36
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, Three-Month LIBOR and One-Month LIBOR in effect for the applicable
Accrual Period will be Three-Month LIBOR and One-Month LIBOR, as applicable, in
effect for the previous Accrual Period.
"TRANSFER DATE" has the meaning specified in Section 5.2A 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, that the Outstanding Amount of the Notes, less any
amounts on deposit in any Accumulation Account (other than Investment Earnings),
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.
"TRUST" means SLM Student Loan Trust 2003-7, 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 all earnings on
and proceeds of the foregoing.
"TRUST ACCOUNTS" has the meaning specified in Section 2.3 of the
Administration Agreement.
"TRUST AGREEMENT" means the Amended and Restated Trust Agreement, dated as
of July 22, 2003 between 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 and the
Administration Agreement.
Appendix A-1-37
"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
substituted for a Trust Student Loan by the Depositor pursuant to Section 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.
"TWO-MONTH LIBOR" see "Three-Month LIBOR".
"UCC" means, unless the context otherwise requires, the Uniform Commercial
Code, as in effect in the relevant jurisdiction, as amended from time to time.
"U.S. DOLLAR EQUIVALENT PRINCIPAL AMOUNT" means, with respect to a class of
Reset Rate Notes in Foreign Exchange Mode, the U.S. Dollar equivalent of the
Outstanding Amount of the related class as of the date of determination based on
the exchange rate provided in the related Cross-Currency Swap Agreement.
Appendix ▇-▇-▇▇
▇▇▇▇▇▇▇▇ ▇-▇
TO THE INDENTURE
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-5A Rate" and "Class A-5B Rate,"
respectively. Interest on each class of Reset Rate Notes shall be payable by the
Trust with respect to each quarterly Distribution Date at the priority level set
forth in Section 2.7C 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, either 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 currency denomination, i.e., U.S. Dollars, Euros or another
non-U.S. Dollar currency, (E) if in Foreign Exchange Mode, the applicable
Distribution Dates on which interest will be paid to the related Reset Rate
Noteholders, if other than quarterly, (F) the applicable Interest Rate
Determination Dates within each Accrual Period, (G) the interval between
Interest Rate Change Dates during each Accrual Period and (H) 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
interest at a floating rate other than one based on LIBOR or a Commercial Paper
Rate, (ii) to bear (or continues to bear) a fixed rate of interest and/or (iii)
to be denominated (or continues to be denominated) in a currency other than U.S.
Dollars, 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/or currency exchange risk (as applicable)
and, together with the Remarketing Agents, for selecting the Swap Counterparties
thereto in accordance with the procedures set forth
Appendix A-2-1
in Section 10(d) 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, a fixed rate or to be denominated in a currency other than U.S.
Dollars unless one or more Swap Agreements are entered into as of the related
Reset Date that result in the Rating Agency Condition being satisfied.
(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 2.7C 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 2.7C of the Administration Agreement on each quarterly 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 Listing Particulars dated July 9, 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
Appendix A-2-2
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 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.
(d) In addition, if the related class of Reset Rate Notes may be reset (i)
to bear interest at a floating rate other than one based on LIBOR or a
Commercial Paper Rate, (ii) to bear (or continues to bear) a fixed rate of
interest and/or (ii) to be denominated (or continues to be denominated) in a
currency other than U.S. Dollars, the Remarketing Agents shall solicit bids from
Eligible Swap Counterparties as described in Section 10(d) below.
Section 4. REMARKETING TERMS DETERMINATION DATE: SECTION 11.20 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, the Swap Agent, if applicable, and the Remarketing Agents
will enter into a Remarketing Agency Agreement for the remarketing of the
related class of Reset Rate Notes.
(b) If the Remarketing Agents, in consultation with the Administrator,
determine prior to the Remarketing Terms Determination Date that either the
Cross-Currency Swap Agreement or the Reset Date Currency Swap Agreement required
pursuant to Section 1(c)(iii) above will not be obtainable on the related Reset
Date, the related class of Reset Rate Notes must be denominated in U.S. Dollars
during the related Reset Period as indicated in the related Remarketing Terms
Notice.
(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) the currency denomination;
Appendix A-2-3
(vi) if in Foreign Exchange Mode, the identities of the Eligible
Swap Counterparties from which bids will be solicited and the identity, if
known, of the proposed Swap Agent for each related Eligible Swap
Counterparty;
(vii) if in Foreign Exchange Mode, the applicable Distribution Dates
on which interest and principal will be paid to the related Reset Rate
Noteholders, if other than quarterly;
(viii) if in floating rate mode, the applicable Index;
(ix) if in floating rate mode, the interval between Interest Rate
Change Dates;
(x) if in floating rate mode, the applicable Interest Rate
Determination Date;
(xi) if in fixed rate mode, the applicable fixed rate pricing
benchmark;
(xii) if in fixed rate mode, the identities of the Eligible Swap
Counterparties from which bids will be solicited;
(xiii) if in floating rate mode, based on an Index other than LIBOR
or a Commercial Paper Rate, whether there will be a related Swap Agreement
and, if so, the identities of the Eligible Swap Counterparties from which
bids will be solicited;
(xiv) the applicable Day Count Basis;
(xv) the related All Hold Rate, if applicable;
(xvi) 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
(xvii) any other relevant terms (other than the related Spread or
fixed rate of interest, as applicable) incidental to the foregoing 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
Appendix A-2-4
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 which is denominated in U.S. Dollars during
both the then-current Reset Period and the immediately following Reset Period,
the Remarketing Agents, in consultation with the Administrator, will establish
the related All Hold Rate for such class. With respect to any class of Reset
Rate Notes that is either in Foreign Exchange Mode during the then-current Reset
Period or will be reset into Foreign Exchange Mode on the immediately following
Reset Date, all related Reset Rate Noteholders will be deemed to have tendered
their Notes on the related Reset Date, regardless of any desire by such Reset
Rate Noteholders to retain their ownership thereof, and no All Hold Rate will be
applicable.
(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.
(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. In addition, if a class of Reset Rates Notes
is then in Foreign Currency Mode the provisions of Sections 10(a)(i) and (ii)
shall also apply.
(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
Appendix A-2-5
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 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 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, except as provided in paragraph (f) below.
(f) In the event that the Call Option is exercised with respect to a class
of Reset Rate Notes then in Foreign Exchange Mode, the holder of the Call Option
shall deliver the U.S. Dollar Equivalent Principal Amount remaining after all
payments of principal are made with respect to the related Distribution Date,
and interest (if applicable) owing to the related Reset Rate Noteholders to the
Remarketing Agents for delivery to the related Swap Agent for delivery to the
Swap Counterparty to the related Reset Date Currency Swap Agreement, who shall
exchange such amount into the applicable currency for delivery to the related
Reset Rate Noteholders; provided, however, that if there is no such Reset Date
Currency Swap Agreement then in effect, the holder of the Call Option shall
remits all amounts due and owing to the related Reset Rate Noteholders in the
applicable currency on or before the related Reset Date in accordance with the
standard procedures established by the related Clearing Agencies for transfer of
securities to ensure timely payment of principal to the Reset Rate Noteholders
on the Reset Date.
(g) 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, (ii) that
class will be denominated in U.S.
Appendix A-2-6
Dollars and (iii) 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.
(h) Other than in connection with the exercise of a Call Option, neither
SLM Corporation, ▇▇▇▇▇▇ ▇▇▇, 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: For a class of Reset Rate Notes which is
denominated in U.S. Dollars during both the then-current Reset Period and the
immediately following Reset Period, 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-2-7
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
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 either (i) a Cross-Currency Swap Agreement, if the
related class of Reset Rate Notes is to be reset in Foreign Exchange Mode, or
(ii) an Interest Swap Agreement if the related class of Reset Rate Notes is to
be reset in U.S. Dollars and to bear interest at a fixed rate or at a floating
rate other than one based on LIBOR or a Commercial Paper Rate, with an Eligible
Swap Counterparty. In addition, if the related class of Reset Rate Notes is to
be reset in Foreign Exchange Mode, on the related Reset Date the Remarketing
Agents shall cause a Swap Agent to enter into a Reset Date Currency Swap
Agreement with an Eligible Swap Counterparty.
(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 on then listed on the exchange) 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) any applicable currency exchange rate, (iii) if
applicable, the identity of any selected Swap Counterparty or Counterparties,
and Swap Agent or Agents, if applicable, (iv) 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 (v)
any other information that the Administrator or the Remarketing Agents deem
applicable. Furthermore, for each class of Reset Rate Notes to be reset in
Foreign Exchange Mode, the currency exchange rate, the Extension Rate due to the
related Swap Counterparty and the Failed Remarketing Rate applicable to such
class for the immediately following Reset Period will be determined pursuant to
the terms of the related Cross-Currency Swap Agreement and contained in the
Spread Determination Notice. 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 class of Reset Rate Notes is to be
reset in Foreign Exchange Mode, on the related Reset Date, the Administrator
will enter into (not in its
Appendix A-2-8
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) a Cross-Currency Swap Agreement
for the related Reset Period.
(i) Each Swap Counterparty (including, without limitation, the
Initial Swap Counterparty) which is party to the related Cross-Currency
Swap Agreement will be entitled to receive with respect to each
Distribution Date, (x) an interest rate of Three-Month LIBOR, plus or minus
a spread, as determined from the bidding process described in Section 10(d)
below, multiplied by the U.S. Dollar Equivalent Principal 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, (y) all payments of principal in U.S. Dollars that are
allocated to the related class of Reset Rate Notes; provided that if the
related class of Reset Rate Notes bears a fixed rate of interest, all
principal payments allocated to such class on any Distribution Date will be
deposited into the related Accumulation Account and paid to the related
Swap Counterparty on or about the next Reset Date as set forth in the
related Cross-Currency Swap Agreement (including all sums required to be
deposited therein on the related Reset Date), but excluding all Investment
Earnings thereon. With respect to the Initial Cross-Currency Swap
Agreement, the Initial Swap Counterparty also shall be entitled to receive
on the Closing Date, all applicable non-U.S. Dollar currency proceeds
received by the Trust from purchasers of the Class A-5B Notes.
(ii) In addition, each related Cross-Currency Swap Counterparty
will be obligated to pay to the Trust (for payment to the related Reset
Rate Noteholders, if applicable): (x) on the Closing Date and with respect
to the Initial Cross-Currency Swap Agreement only, the U.S. Dollar
Equivalent Principal Amount of the applicable non-U.S. Dollar currency
received from purchasers of the Class A-5B Notes; (y) with respect to each
applicable Distribution Date, (A) the applicable rate of interest on the
related class of Reset Rate Notes multiplied by the U.S. Dollar Equivalent
Principal 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, and (B) the applicable non-U.S.
Dollar currency equivalent of the U.S. Dollars such Swap Counterparty
concurrently receives from the Trust as a payment of principal allocated to
the related class of Reset Rate Noteholders (including, on the related
Maturity Date for such class of Reset Rate Notes, if the Cross-Currency
Swap Agreement is then in effect, the remaining Outstanding Amount of such
class of Reset Rate Notes) but only to the extent that the required U.S.
Dollar Equivalent Principal Amount is received from the Trust on such date,
at an exchange rate to be set on the effective date of and set forth in the
related Cross-Currency Swap Agreement; and (z) on the second Business Day
following a Distribution Date that is also a Reset Date (other than for any
Reset Period following a Reset Date upon which a Failed Remarketing has
occurred, up to and including the Reset Date resulting in a successful
remarketing or an exercise of the related Call Option) interest at the
related interest rate from and including the related Reset Date to, but
excluding, the second Business Day following such Reset Date. For any Reset
Period following a Reset Date upon which a Failed Remarketing has occurred,
up to any including the Reset Date resulting in a successful remarketing or
an exercise of the related Call Option for that class of Reset Rate Notes,
payments of interest and
Appendix A-2-9
principal to that class of Reset Rate Noteholders will be made on the
second Business Day following the related Reset Date without the payment of
any additional interest.
(b) In addition, if a class of Reset Rate Notes is to be reset in Foreign
Exchange Mode, on the related Reset Date, the Remarketing Agents will appoint
one or more Swap Agents and cause such Swap Agents to enter into one or more
Reset Date Currency Swap Agreements with one or more Eligible Swap
Counterparties for the next Reset Period. Each Reset Date Currency Swap
Agreement will share the same currency exchange rate as the related
Cross-Currency Swap Agreement.
(i) On the effective date of any Reset Date Currency Swap
Agreement (except with respect to the Initial Reset Date Currency Swap
Agreement), (A) the Remarketing Agents will deliver to the related Swap
Agent, for further delivery to the related Swap Counterparty, all secondary
trade sale proceeds received from purchasers of the related Class of Reset
Rate Notes in the applicable non-U.S. Dollar currency, and (B) in return,
the related Swap Counterparty will deliver to the related Swap Agent, for
delivery to the Remarketing Agents, the U.S. Dollar equivalent of such sale
proceeds using the conversion rate established on the applicable effective
date. Upon receipt, the Remarketing Agents will then deliver such sums
either (1) to the tendering Reset Rate Noteholders, if their class of Reset
Rate Notes was immediately prior to such Reset Date denominated in U.S.
Dollars, as payment in full of the Outstanding Amount of their class of
Reset Rate Notes, or (2) if a class of Reset Rate Notes was in Foreign
Exchange Mode immediately prior to such Reset Date, to the related Swap
Agent for the related Reset Date Currency Swap Agreement in effect for the
Reset Period ending on such Reset Date for the purposes described in
subparagraph (ii) below.
(ii) On the Reset Date corresponding to the successful remarketing
of such class of Reset Rate Notes, (A) the Swap Agent for the related Reset
Date Currency Swap Agreement in effect for the Reset Period ending on such
Reset Date will be obligated to deliver to the related Swap Counterparty
for the related Reset Date Currency Swap Agreement in effect for the Reset
Period ending on such Reset Date, all U.S. Dollar secondary trade sale
proceeds received from the Remarketing Agents that the Remarketing Agents
either received directly from the purchasers of such Reset Rate Notes (if
remarketed in U.S. Dollars) or from the Swap Agent with respect to the
Reset Date Currency Swap Agreement commencing on such Reset Date (if
remarketed in Foreign Exchange Mode, as described in subparagraph (i)
above), and (B) in return, the related Swap Counterparty for the related
Reset Date Currency Swap Agreement in effect for the Reset Period ending on
such Reset Date will deliver to the related Swap Agent for the related
Reset Date Currency Swap Agreement in effect for the Reset Period ending on
such Reset Date, for delivery to the Remarketing Agents, the non-U.S.
Dollar currency equivalent of such secondary trade sale proceeds, using the
exchange rate established on the applicable effective date of such Reset
Date Currency Swap Agreement (or in the case of the Initial Reset Date
Currency Swap Agreement, the Closing Date). The Remarketing Agents will
then deliver such non-U.S. Dollar currency amounts to the tendering Reset
Rate Noteholders, as payment in full of the Outstanding Amount of their
Reset Rate Notes, and the Reset Date Currency Swap Agreement effective
during the previous Reset Period will terminate in accordance with its
terms.
Appendix A-2-10
(c) If a class of Reset Rate Notes is to be reset in U.S. Dollars, and a
Swap Agreement is required pursuant to Section 1(c) 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.
(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(d) 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.
(d) Other than with respect to the 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 and/or currency exchange swap(s). 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 and any related Swap Agents and the cause any
such Swap Agent or Swap Agents to enter into the required Swap Agreements on the
related Reset Date for the upcoming Reset Period.
(e) 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 or a Swap Agent on their behalf, for any Reset Period where either the
related Call Option has been exercised or a Failed Remarketing has been
declared.
(f) Each such Swap Agreement, will terminate at the earliest to occur of
(i) the next succeeding Reset Date for which there is a successful remarketing,
(ii) the related Reset Date for which the related Call Option is exercised,
(iii) the Distribution Date on which the Outstanding Amount of the Reset Rate
Notes is reduced to zero (including as the result of the optional
Appendix A-2-11
purchase of the remaining Trust Student Loans by the Servicer or an auction of
the Trust Student Loans by the Indenture Trustee) or (iv) the Maturity Date of
the related class of Reset Rate Notes. No Cross-Currency Swap Agreement or Reset
Date Currency Swap Agreement will terminate solely due to the declaration of a
Failed Remarketing.
(g) With respect to each Cross-Currency Swap Agreement, and in the event
that a Failed Remarketing is declared, the rate of interest due to the related
Swap Counterparty from the Trust on each Distribution Date will be increased to
the related Extension Rate and the rate due to the Trust from the related Swap
Counterparty will change to equal the related Failed Remarketing Rate.
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, with
respect to the Class A-5B Notes 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 (except that if a class
of Reset Rate Notes is in Foreign Exchange Mode, principal will be paid
according to the provisions of Section 10(a)(i) and (a)(ii) above), unless an
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 5.4SECTION 11.21 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 the Class A-5B Notes), 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 2.7C of the Administration Agreement, (x) to the holders of
that class of Reset Rate Notes, as of the related Record Date, or (y) if a class
of Reset Rate Notes is in Foreign Exchange Mode (including the Class A-5B Notes
during the initial Reset Period), to the related Cross-Currency Swap
Counterparty or Counterparties for the benefit of such Reset Rate Noteholders as
of the related Record Date pursuant to the provisions of Section 10(a)(i) and
(a)(ii) above, in reduction of principal of such class; 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 2.7C of the Administration Agreement, on the next
related Reset Date to the related Reset Rate Noteholders or the related
Cross-Currency Swap Counterparty (as applicable), 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 (or to the related
Cross-Currency Swap Counterparty or Counterparties) and for no other purpose. On
each Distribution Date, all Investment Earnings on deposit in each Accumulation
Appendix A-2-12
Account will be withdrawn by the Indenture Trustee, at the direction of the
Administrator, as set forth in Section 2.8.4B.4 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 2.8.5B 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 2.8.5C of the
Administration Agreement, and deposited into the Collection Account.
Section 12. REMARKETING AGENTS; SWAP AGENT; REMARKETING FEE ACCOUNT:
(a) The initial Remarketing Agents, appointed pursuant to the terms of the
Remarketing Agreement, are Credit Suisse First Boston LLC, ▇.▇. ▇▇▇▇▇▇
Securities Inc., and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated. The terms and conditions
of the Remarketing Agreement will govern the duties and obligations of the
Remarketing Agents and each Swap Agent. The Administrator, the Trust and the
Remarketing Agents will enter into on each related (A) Remarketing Terms
Determination Date, an Initial 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 Subsequent 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 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) If a class of Reset Rate Notes is in Foreign Currency Mode or will be
reset into Foreign Currency Mode, then pursuant to Section 13 of the Remarketing
Agreement, the Remarketing Agents shall appoint one or more Swap Agents to act
as agent for the Remarketing Agent and for the benefit of the related Reset Rate
Noteholders, and instruct each Swap Agent to enter into a related Reset Date
Currency Swap Agreement. The initial Swap Agent, appointed by the Remarketing
Agents pursuant to the Remarketing Agreement, is CDC IXIS Capital Markets,
London Branch. The initial Swap Agent shall be entitled to receive the
Remarketing Agents' Upfront Fee pursuant to Section 3(c) of the Remarketing
Agreement. The duties and obligations of the Swap Agent are set forth in the
Remarketing Agreement.
(c) 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, subject to Section 12(c) below, 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.
Appendix A-2-13
(d) 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.
(e) Purchasers of the related class of Reset Rate Notes will be credited
with their positions on the applicable Reset Date with respect to positions held
through DTC or on the next Business Day with respect to positions held through
the European Clearing Systems. No payment delay to existing Reset Rate
Noteholders holding U.S. Dollar denominated Reset Rate Notes through DTC will
occur on the related Reset Date for any class denominated in U.S. Dollars during
the immediately following Reset Period (including the Class A-5A Notes during
its initial Reset Period).
(f) 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.
(g) 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. In addition, the Administrator will appoint one or
more additional Remarketing Agents, if necessary, for a Reset Date when the
related class of Reset Rate Notes will be remarketed in a non-U.S. Dollar
currency. 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.
(h) In accordance with Section 2.8.3 of the Administration Agreement, on
the Closing Date, the Trust will establish the Remarketing Fee Account as an
asset of the Trust in the 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
Appendix A-2-14
Remarketing Fee Account, in the priority set forth in Section 2.7C 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 2.7C 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 2.7C 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 ▇-▇-▇▇
▇▇▇▇▇▇▇▇ ▇-▇
TO INDENTURE
TRANSFER RESTRICTIONS FOR
THE RESET RATE NOTES
(a) 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 ▇▇▇▇▇▇▇▇ ▇-▇, which also contains rules as to
usage that shall be applicable herein.
(b) 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.
(c) 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.
(d) Any transfer made in violation of Section 2.1 of the Indenture where a
beneficial interest held in a U.S. Rule 144A Global Note Certificate is
transferred to an interest held in either of the related Non-U.S. Global Note
Certificates, or vice versa (other than on a Reset Date where such class is
being reset from being denominated in U.S. Dollars to Foreign Currency Mode, or
vice versa), shall be null and void and of no effect.
(e) Each purchaser of a class of Reset Rate Notes that represent a
beneficial interest in a Global Note Certificate will be deemed to have
represented and agreed, and each purchaser of an Individual Note Certificate
will be required to certify in writing, that:
(i) (A) 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 QIB's) for investment purposes and not for distribution in
violation of the Securities 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, or (B) the purchaser is a non-U.S.
Person (as defined in Regulation S) outside the United States of America,
acquiring the Reset Rate Notes pursuant to an exemption from registration in
accordance with Rule 903 or Rule 904 of Regulation S;
(ii) the purchaser understands that the Reset Rate Notes are being
offered only in a transaction that does not require registration under the
Securities 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 QIB's) to whom notice is given that the
resale or other transfer is being made in reliance on Rule 144A, (B) pursuant to
an exemption from registration provided by Rule 144 under the Securities Act, if
available, (C) to a purchaser who is a non-U.S. Person (as defined in
Appendix A-3-1
Regulation S) outside the United States of America, acquiring the Reset Rate
Notes pursuant to an exemption from registration in accordance with Rule 903 or
Rule 904 of Regulation S or (D) pursuant to an effective registration statement
under the Securities Act, in each case in accordance with any applicable
securities laws of any state of the United States of America or any other
jurisdiction; 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 its 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 Notes that (A) such Reset Rate Notes have not been registered under
the Securities 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 or a purchaser acquiring the Reset Rate Notes in an offshore
transaction pursuant to the requirements of Regulation S, as the case may be,
(2) if such transferee is a QIB, 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 QIB's), (3) if such transferee is a non-U.S. Person (as
defined in Regulation S) outside the United States of America, that such
transferee is acquiring the Reset Rate Notes pursuant to an exemption from
registration in accordance with the requirements of Rule 903 or Rule 904 of
Regulation S, (4) that such transferee is not an underwriter within the meaning
of Section 2(11) of the Securities Act, and (5) 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 arrangement ("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.
(f) (A) By acceptance of a Reset Rate Note, whether upon original issuance
or subsequent transfer, each Reset Rate Noteholder or Note Owner, as applicable,
of a class of Reset Rate Notes (or a beneficial interest therein) offered and
sold only to a QIB or to a non-U.S. Person (as defined in Regulation S) outside
the United States of America in reliance on Rule 144A or Regulation S,
acknowledges or is deemed to acknowledge, as the case may be, the restrictions
on the transfer of each U.S. Rule 144A Global Note Certificate, Non-U.S. Rule
144A Global Note Certificate and any Rule 144A Individual Note Certificates
(collectively, the "Rule 144A Certificates") and that the following securities
legend 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 UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY STATE
SECURITIES OR "BLUE SKY" LAWS OR ANY SECURITIES LAWS OF ANY OTHER
JURISDICTION, AND, AS A MATTER OF U.S. LAW, MAY NOT BE OFFERED OR SOLD IN
Appendix A-3-2
VIOLATION OF THE SECURITIES ACT OR SUCH OTHER LAWS. THIS NOTE MAY BE
TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF NOT LESS THAN $250,000, EURO
250,000 OR THE APPLICABLE CURRENCY EQUIVALENT OF $250,000, DEPENDING ON ITS
CURRENCY OF DENOMINATION. 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, AS A MATTER OF U.S. LAW, 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 AN
EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144A PROMULGATED UNDER
THE SECURITIES ACT (IF AVAILABLE), (3) TO A PERSON WHO IS NOT A U.S. PERSON
(AS DEFINED IN REGULATION S PROMULGATED UNDER THE SECURITIES ACT) OUTSIDE
THE UNITED STATES OF AMERICA ACQUIRING THIS NOTE IN ACCORDANCE WITH RULE
903 OR RULE 904 OF REGULATION S PROMULGATED UNDER THE SECURITIES ACT OR (4)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN EACH CASE IN ACCORDANCE WITH ANY STATE SECURITIES OR "BLUE SKY" LAWS OR
ANY SECURITIES LAWS OF ANY OTHER JURISDICTION. 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
Appendix A-3-3
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 LAW OR REGULATION (OR THE INTERPRETATION
THEREOF) OR IN PRACTICES RELATING TO RESALES OR OTHER TRANSFERS OR
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 AT THE DATE OF
SUCH TRANSFER".
(B) Each Reset Rate Noteholder or Note Owner, as applicable, of a class of
Reset Rate Notes (or a beneficial interest therein) offered and sold only to a
non-U.S. Person (as defined in Regulation S) outside the United States of
America in reliance on Regulation S acknowledges or is deemed to acknowledge, as
the case may be, the restrictions on the transfer of each Regulation S Global
Note Certificate and each Regulation S Individual Note Certificate
(collectively, the "Regulation S Certificates") and that the following legend
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 STATE SECURITIES OR "BLUE
SKY" LAWS OR ANY SECURITIES LAWS OF ANY OTHER JURISDICTION, AND, AS A
MATTER OF U.S. LAW, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF
THE COMMENCEMENT OF THE OFFERING OF THE RESET RATE NOTES AND THE CLOSING OF
THE OFFERING OF THE RESET RATE NOTES MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OF AMERICA OR TO A U.S. PERSON
(AS DEFINED IN REGULATION S PROMULGATED UNDER THE SECURITIES ACT) EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE SECURITIES OR "BLUE SKY" LAWS OR ANY SECURITIES LAWS OF ANY OTHER
JURISDICTION. THIS NOTE MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF
NOT LESS THAN
Appendix A-3-4
$250,000, EURO 250,000 OR THE APPLICABLE CURRENCY EQUIVALENT OF $250,000,
DEPENDING ON ITS CURRENCY OF DENOMINATION."
Upon the transfer, exchange or replacement of a Rule 144A Certificate
or a Regulation S Certificate bearing the applicable legends set forth above, or
upon specific request for removal of the legends, the Trust or the Registrar
will deliver only replacement Rule 144A Certificates or Regulation S
Certificates, as the case may be, that bear such applicable legends, or will
refuse to remove such applicable legends, unless there is delivered to the Trust
and the Registrar such satisfactory evidence (which may include a legal opinion)
as may reasonably be required by the Trust and the Indenture Trustee that
neither the applicable legends nor the restrictions on transfer set forth
therein are required to ensure compliance with the provisions of the Securities
Act.
Whenever a Global Note Certificate is to be exchanged for Individual Note
Certificates, such Individual Note Certificates 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 Certificate 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 a 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 applicable
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 applicable legend. In addition
to any applicable restrictions in the Indenture, with respect to the transfer
and registration of transfer of any Reset Rate Note (an "Individual Note")
registered in the name of a Reset Rate Noteholder other than DTC or its nominee
or Euroclear or Clearstream, Luxembourg or their joint nominee, as the case may
be, to a transferee that takes delivery in the form of a Individual Note, the
Indenture Trustee shall register the transfer of such Individual Note if (i) (A)
the requested transfer is being made to a transferee who has provided the
Indenture Trustee and the Administrator with a Transferee Certificate,
substantially in the form attached as Annex 1 hereto, or (B) such transferee has
provided comparable evidence as to its QIB status or that such transfer is being
made in compliance with Regulation S and that it is a Non-U.S. Person (as
defined in Regulation S), 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.
Appendix A-3-5
(g) Each class of the Reset Rate Notes will be issued initially only in
minimum denominations of $250,000, EURO 250,000 or the applicable currency
equivalent of $250,000, depending on its currency of denomination, and
additional increments of $1, EURO 1 or the applicable currency equivalent of $1,
depending on its currency of denomination, 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.
(h) Reset Rate Notes may be presented or surrendered pursuant to
Section 2.4 of the Indenture.
(i) 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.
(j) The Indenture Trustee shall cancel all Reset Rate Notes surrendered
for transfer or exchange pursuant to Section 2.8 of the Indenture.
(k) For so long as any class of Reset Rate Notes are "restricted
securities" within the meaning of Rule 144(a)(3) of the Securities 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 Securities 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
Securities Act under Rule 144A is and will be available for resales of such
Reset Rate Notes conducted in accordance with Rule 144A.
Appendix A-3-6
ANNEX 1 TO
APPENDIX A-3
FORM OF TRANSFEREE CERTIFICATE
[Date]
[SELLER]
The Bank of New York, as Indenture Trustee
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The Student Loan Marketing Association, as Administrator
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: SLM Student Loan Trust 2003-7 (the "Trust"), Student
Loan-Backed Class A5-A and Class A-5B Reset Rate Notes
(the "Reset Rate Notes")
------------------------------------------------------
Dear Sirs:
In connection with our purchase of the Class [A5-A] [A5-B] 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 non-U.S. Person (as
defined in Regulation S) outside the United States of America, acquiring the
Reset Rate Notes pursuant to an exemption from registration in accordance with
Rule 903 or Rule 904 of Regulation S] [a qualified institutional buyer (as
defined in Rule 144A under the Securities Act of 1933, as amended (the "Act"))
as follows:
A) 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
B) The dollar amount set forth above is:
1. greater than $100 million and the undersigned is one of the following
entities:
a. / / an insurance company as defined in Section 2(13) of the Act;
or
b. / / an investment company registered under the Investment
Company Act or any business development company as defined
in Section
Appendix A-3-7
2(a)(48) of the Investment Company Act of 1940; or
c. / / 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
d. / / 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
e. / / a business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940;
or
f. / / 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
g. / / 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
h. / / 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.
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
Appendix A-3-8
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 Transferee 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 a
non-U.S. Person, as applicable.
The undersigned hereby represents and warrants that the undersigned is
accepting ownership of the Reset Rate Notes in compliance with the restrictions
set forth Section (e) of Appendix A-3 to the Indenture, dated as of July 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 (f) 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 either (ii) is 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 (iii) is a non-U.S. Person (as defined in Regulation S) outside
the United States of America, acquiring the Reset Rate Notes pursuant to an
exemption from registration in accordance with Rule 903 or Rule 904 of
Regulation S.
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-3-9
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 ▇-▇-▇▇
▇▇▇▇▇ ▇ ▇▇
▇▇▇▇▇▇▇▇ ▇-▇
FORM OF TRANSFEROR LETTER
[Date]
The Bank of New York, as Indenture Trustee
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
The Student Loan Marketing Association, as Administrator
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: SLM Student Loan Trust 2003-7, Student Loan-Backed Class A5-A
and Class A-5B Reset Rate Notes (the "Reset Rate Notes")
-------------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the Class [A5-A] [A5-B] 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-3-11
SCHEDULE A
SCHEDULE OF TRUST STUDENT LOANS
[See Schedule A to the ▇▇▇▇ 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
[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 Initial Principal Balance: $[Note Face Amount]
R-____ CUSIP NO. ▇▇▇▇▇▇▇▇▇
ISIN No. US78442GHD16
EUROPEAN COMMON
CODE 017278410
Exhibit ▇-▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇-▇
FLOATING RATE CLASS A-1 STUDENT LOAN-BACKED NOTES
SLM Student Loan Trust 2003-7, 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 result obtained by multiplying (i) a
fraction the numerator of which is $269,857,000 and the denominator of which is
$269,857,000 by (ii) 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 July 1, 2003, among the
Issuer, Chase Manhattan Bank USA, National Association, a national banking
cassociation, 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 2010
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-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 2003-7
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: July 22, 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: July 22, 2003
Exhibit A-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-5A Student
Loan-Backed Notes (the "Class A-5A Notes"), Reset Rate Class A-5B Student
Loan-Backed Notes (the "Class A-5B Notes" and, together with the Class A-5A
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, the Class A-1 Notes are prior in order of principal payment
to the Class A-2, Class A-3, Class A-4, 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 September 2003.
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 0.01%. For the
initial Accrual Period, the "Class A-1 Rate" shall be the Initial Accrual Rate
plus 0.01%.
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
Exhibit A-4
more Predecessor Notes) on the Note Register on the Record Date, except that
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. 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. 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, 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
Exhibit A-5
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 of a beneficial interest in any
Book-Entry Note by, for or with the assets of, an employee benefit plan or other
retirement arrangement subject to Section 406 of ERISA or Section 4975 of the
Code, such Note Owner shall be deemed to have represented that such acquisition
or purchase will not constitute or otherwise result in 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. 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 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
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-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
[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 Initial Principal Balance: $[Note Face Amount]
R-___ CUSIP ▇▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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CODE 017279211
Exhibit ▇-▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇-▇
FLOATING RATE CLASS A-2 STUDENT LOAN-BACKED NOTES
SLM Student Loan Trust 2003-7, 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 result obtained by multiplying (i) a
fraction the numerator of which is $296,165,000 and the denominator of which is
$296,165,000 by (ii) 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 July 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") (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 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-10
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 2003-7
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: July 22, 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: July 22, 2003
Exhibit A-11
[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-5A Student
Loan-Backed Notes (the "Class A-5A Notes"), Reset Rate Class A-5B Student
Loan-Backed Notes (the "Class A-5B Notes" and, together with the Class A-5A
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, the Class A-1 Notes are prior in order of principal payment
to the Class A-2 Notes, and the Class A-2 Notes are 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 September 2003.
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 0.03%. For the
initial Accrual Period, the "Class A-2 Rate" shall be the Initial Accrual Rate
plus 0.03%.
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
Exhibit A-12
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,
except that 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. 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. 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, 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
Exhibit A-13
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 of a beneficial interest in any
Book-Entry Note by, for or with the assets of, an employee benefit plan or other
retirement arrangement subject to Section 406 of ERISA or Section 4975 of the
Code, such Note Owner shall be deemed to have represented that such acquisition
or purchase will not constitute or otherwise result in 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. 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 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.
Exhibit A-14
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-15
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-16
[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 Initial Principal Balance: $[Note Face Amount]
R-___ CUSIP ▇▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
EUROPEAN COMMON
CODE 017279319
Exhibit ▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇-▇
FLOATING RATE CLASS A-3 STUDENT LOAN-BACKED NOTES
SLM Student Loan Trust 2003-7, 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 [Note Face Amount] payable on each
Distribution Date in an amount equal to the result obtained by multiplying (i) a
fraction the numerator of which is $362,511,000 and the denominator of which is
$362,511,000 by (ii) 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 July 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") (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 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-18
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 2003-7
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: July 22, 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: July 22, 2003
Exhibit A-19
[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-5A Student
Loan-Backed Notes (the "Class A-5A Notes"), Reset Rate Class A-5B Student
Loan-Backed Notes (the "Class A-5B Notes" and, together with the Class A-5A
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, the Class A-1 Notes and the Class A-2 Notes are prior in
order of principal payment to the Class A-3 Notes, and the Class A-3 Notes are
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 September 2003.
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 0.11%. For the
initial Accrual Period, the "Class A-3 Rate" shall be the Initial Accrual Rate
plus 0.11%.
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
Exhibit A-20
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,
except that 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. 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. 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, 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
Exhibit A-21
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 of a beneficial interest in any
Book-Entry Note by, for or with the assets of, an employee benefit plan or other
retirement arrangement subject to Section 406 of ERISA or Section 4975 of the
Code, such Note Owner shall be deemed to have represented that such acquisition
or purchase will not constitute or otherwise result in 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. 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 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.
Exhibit A-22
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-23
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-24
[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 Initial Principal Amount: $[Note Face Amount]
R-___ CUSIP NO. ▇▇▇▇▇▇▇▇▇
ISIN No. US78442GHG47
EUROPEAN COMMON
CODE 017279378
Exhibit ▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇-▇
FLOATING RATE CLASS A-4 STUDENT LOAN-BACKED NOTES
SLM Student Loan Trust 2003-7, 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 result obtained by multiplying (i) a
fraction the numerator of which is $311,079,000 and the denominator of which is
$311,079,000 by (ii) 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 July 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") (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 2019 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-26
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 2003-7
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: July 22, 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: July 22, 2003
Exhibit A-27
[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-5A Student
Loan-Backed Notes (the "Class A-5A Notes"), Reset Rate Class A-5B Student
Loan-Backed Notes (the "Class A-5B Notes" and, together with the Class A-5A
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, the Class A-1 Notes, Class A-2 Notes and Class A-3 Notes are
prior in order of principal payment to the Class A-4 Notes, and the Class A-4
Notes are 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 September 2003.
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 0.20%. For the
initial Accrual Period, the "Class A-4 Rate" shall be the Initial Accrual Rate
plus 0.20%.
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
Exhibit A-28
more Predecessor Notes) on the Note Register on the Record Date, except that
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. 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. 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, 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
Exhibit A-29
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 of a beneficial interest in any
Book-Entry Note by, for or with the assets of, an employee benefit plan or other
retirement arrangement subject to Section 406 of ERISA or Section 4975 of the
Code, such Note Owner shall be deemed to have represented that such acquisition
or purchase will not constitute or otherwise result in 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. 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 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-30
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-31
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-32
[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 Initial Principal Balance: $[Note Face Amount]
R-___ CUSIP ▇▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
EUROPEAN COMMON
CODE 017279459
Exhibit ▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇-▇
FLOATING RATE CLASS B STUDENT LOAN-BACKED NOTES
SLM Student Loan Trust 2003-7, 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 result obtained by multiplying (i) a
fraction the numerator of which is $75,985,000 and the denominator of which is
$75,985,000 by (ii) 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 July 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")
(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 2039 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-34
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 2003-7
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: July 22, 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: July 22, 2003
Exhibit A-35
[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-5A
Student Loan-Backed Notes (the "Class A-5A Notes"), Reset Rate Class A-5B
Student Loan-Backed Notes (the "Class A-5B Notes" and, together with the Class
A-5A 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 September 2003.
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 0.57%. For the
initial Accrual Period, the "Class B Rate" shall be the Initial Accrual Rate
plus 0.57%.
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
Exhibit A-36
more Predecessor Notes) on the Note Register on the Record Date, except that
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. 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. 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, 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
Exhibit A-37
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 of a beneficial interest in any
Book-Entry Note by, for or with the assets of, an employee benefit plan or other
retirement arrangement subject to Section 406 of ERISA or Section 4975 of the
Code, such Note Owner shall be deemed to have represented that such acquisition
or purchase will not constitute or otherwise result in 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. 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 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-38
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-39
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
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FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
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(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
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attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated:
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*/
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Signature Guaranteed:
*/
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*/ 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-40
EXHIBIT B
[Form of Depository Agreement]
Exhibit B-1