EXHIBIT 4.1
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TRUST AGREEMENT
between
SLM FUNDING LLC,
as Depositor
and
THE BANK OF NEW YORK,
not in its individual capacity but solely
as the Indenture Trustee and Paying Agent
and
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Eligible Lender Trustee
Dated as of August 1, 2003
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TABLE OF CONTENTS
Page
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ARTICLE I
SECTION 1.1 Definitions and Usage............................................................................. 1
ARTICLE II
ORGANIZATION
SECTION 2.1 Creation of Trust; Name........................................................................... 1
SECTION 2.2 Office............................................................................................ 1
SECTION 2.3 Purposes and Powers............................................................................... 1
SECTION 2.4 Appointment of Eligible Lender Trustee............................................................ 2
SECTION 2.5 Initial Capital Contribution of Trust Estate...................................................... 2
SECTION 2.6 Declaration of Trust.............................................................................. 2
SECTION 2.7 Liability of the Holders of the Excess Distribution Certificate................................... 3
SECTION 2.8 Title to Trust Property........................................................................... 3
SECTION 2.9 Representations, Warranties, and Covenants of the Depositor....................................... 3
SECTION 2.10 Intentionally Omitted............................................................................ 4
ARTICLE III
BENEFICIAL OWNERSHIP AND EXCESS DISTRIBUTION CERTIFICATE
SECTION 3.1 Initial Beneficial Ownership...................................................................... 4
SECTION 3.2 Intentionally Omitted............................................................................. 4
SECTION 3.3 Intentionally Omitted............................................................................. 4
SECTION 3.4 Intentionally Omitted............................................................................. 4
SECTION 3.5 Intentionally Omitted............................................................................. 4
SECTION 3.6 Intentionally Omitted............................................................................. 5
SECTION 3.7 Intentionally Omitted............................................................................. 5
SECTION 3.8 Corporate Trust Office............................................................................ 5
SECTION 3.9 Intentionally Omitted............................................................................. 5
SECTION 3.10 Intentionally Omitted............................................................................ 5
SECTION 3.11 Intentionally Omitted............................................................................ 5
SECTION 3.12 Intentionally Omitted............................................................................ 5
SECTION 3.13 The Excess Distribution Certificate.............................................................. 5
ARTICLE IV
ACTIONS BY ELIGIBLE LENDER TRUSTEE
SECTION 4.1 Prior Notice to the Holder of the Excess Distribution Certificate With Respect to Certain
Matters.................................................................................. 10
SECTION 4.2 Action with Respect to Sale of the Trust Student Loans............................................ 11
SECTION 4.3 Action with Respect to Bankruptcy................................................................. 11
SECTION 4.4 Restrictions...................................................................................... 11
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SECTION 4.5 Intentionally Omitted............................................................................. 11
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Application of Trust Funds........................................................................ 11
SECTION 5.2 Method of Payment................................................................................. 11
SECTION 5.3 No Segregation of Moneys; No Interest............................................................. 12
SECTION 5.4 Reports to the Holder of the Excess Distribution Certificate, the Internal Revenue Service
and Others............................................................................... 12
SECTION 5.5 Intentionally Omitted............................................................................. 12
SECTION 5.6 Intentionally Omitted............................................................................. 12
ARTICLE VI
AUTHORITY AND DUTIES OF ELIGIBLE LENDER TRUSTEE
SECTION 6.1 General Authority................................................................................. 12
SECTION 6.2 General Duties.................................................................................... 13
SECTION 6.3 Action upon Instruction........................................................................... 13
SECTION 6.4 No Duties Except as Specified in this Agreement or in Instructions................................ 14
SECTION 6.5 No Action Except Under Specified Documents or Instructions........................................ 14
SECTION 6.6 Restrictions...................................................................................... 15
ARTICLE VII
CONCERNING THE ELIGIBLE LENDER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties................................................................... 15
SECTION 7.2 Intentionally Omitted............................................................................. 16
SECTION 7.3 Representations and Warranties.................................................................... 16
SECTION 7.4 Reliance; Advice of Counsel....................................................................... 17
SECTION 7.5 Not Acting in Individual Capacity................................................................. 17
SECTION 7.6 Eligible Lender Trustee Not Liable for Excess Distribution Certificates or Trust Student
Loans.................................................................................... 18
SECTION 7.7 Eligible Lender Trustee May Own Notes............................................................. 18
ARTICLE VIII
COMPENSATION AND INDEMNITY OF ELIGIBLE LENDER TRUSTEE
SECTION 8.1 Eligible Lender Trustee's Fees and Expenses....................................................... 18
SECTION 8.2 Payments to the Eligible Lender Trustee........................................................... 19
SECTION 8.3 Indemnity......................................................................................... 19
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement.................................................................... 19
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ARTICLE X
SUCCESSOR ELIGIBLE LENDER TRUSTEES AND ADDITIONAL ELIGIBLE LENDER TRUSTEES
SECTION 10.1 Eligibility Requirements for Eligible Lender Trustee............................................. 19
SECTION 10.2 Resignation or Removal of Eligible Lender Trustee................................................ 20
SECTION 10.3 Successor Eligible Lender Trustee................................................................ 21
SECTION 10.4 Merger or Consolidation of Eligible Lender Trustee............................................... 21
SECTION 10.5 Appointment of Co-Eligible Lender Trustee or Separate Eligible Lender Trustee.................... 22
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Supplements and Amendments....................................................................... 23
SECTION 11.2 No Legal Title to Trust Estate in Holder of the Excess Distribution Certificate.................. 24
SECTION 11.3 Limitations on Rights of Others.................................................................. 24
SECTION 11.4 Notices 24
SECTION 11.5 Severability..................................................................................... 24
SECTION 11.6 Separate Counterparts............................................................................ 25
SECTION 11.7 Successors and Assigns........................................................................... 25
SECTION 11.8 No Petition...................................................................................... 25
SECTION 11.9 No Recourse...................................................................................... 25
SECTION 11.10 Headings........................................................................................ 25
SECTION 11.11 Governing Law................................................................................... 26
Exhibit A Form of Excess Distribution Certificate
Exhibit B Form of Certificate of Trust
Exhibit C Form of Transferor Letter
Exhibit D-1 Form of Transferee Letter (Non-Rule 144A)
Exhibit D-2 From of Transferee Letter (Rule 144A)
Appendix A to Trust Agreement
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THIS TRUST AGREEMENT dated as of August 1, 2003, among SLM FUNDING LLC,
a Delaware limited liability company, as the Depositor, THE BANK OF NEW YORK, as
Indenture Trustee and Paying Agent and CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity but
solely as the Eligible Lender Trustee.
WITNESSETH:
The Depositor, the Indenture Trustee and the Eligible Lender Trustee
hereby agree as follows:
ARTICLE I
SECTION 1.1 Definitions and Usage. Except as otherwise specified
herein or as the context may otherwise require, capitalized terms used but not
otherwise defined herein are defined in Appendix A hereto, which also contains
rules as to usage that shall be applicable herein.
ARTICLE II
Organization
SECTION 2.1 Creation of Trust; Name. There is hereby created a
Trust which shall be known as "SLM Student Loan Trust 2003-8", in which name the
Eligible Lender Trustee may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and ▇▇▇ and be sued. The
Trust shall constitute a statutory trust within the meaning of Section 3801(a)
of the Delaware Statutory Trust Act for which the Eligible Lender Trustee has
filed a certificate of trust with the Secretary of State of the State of
Delaware pursuant to Section 3810(a) of the Delaware Statutory Trust Act.
SECTION 2.2 Office. The office of the Trust shall be in care of
the Eligible Lender Trustee at its Corporate Trust Office or at such other
address as the Eligible Lender Trustee may designate by written notice to the
Depositor.
SECTION 2.3 Purposes and Powers. The purpose of the Trust is to
engage in the following activities:
(i) to issue the Notes pursuant to the Indenture and the
Excess Distribution Certificate pursuant to this Agreement and to sell
the Notes in one or more transactions;
(ii) with the proceeds of the sale of the Notes, to fund
the Reserve Account pursuant to Section 2.9 of the Administration
Agreement, to fund the Capitalized Interest Account pursuant to Section
2.10 of the Administration Agreement and to purchase the
Trust Student Loans pursuant to the Sale Agreement and to make the
upfront payment pursuant to the Interest Rate Cap Agreement;
(iii) to Grant the Trust Estate to the Indenture Trustee
pursuant to the Indenture, and to hold, manage and distribute to the
holder of the Excess Distribution Certificate pursuant to the terms of
this Agreement any portion of the Trust Estate released from the Lien
of, and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the
Basic Documents to which it is to be a party;
(v) to engage in those activities, including entering
into agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith; and
(vi) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Trust Estate and the making of distributions to the
Noteholders and the others specified in Sections 2.7, 2.8 and 2.9 of
the Administration Agreement.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the other Basic Documents.
SECTION 2.4 Appointment of Eligible Lender Trustee. The Depositor
hereby appoints the Eligible Lender Trustee as trustee of the Trust, effective
as of the date hereof, to have all the rights, powers and duties set forth
herein.
SECTION 2.5 Initial Capital Contribution of Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the
Eligible Lender Trustee, as of the date hereof, the sum of $100.00. The Eligible
Lender Trustee hereby acknowledges receipt in trust from the Depositor, as of
the date hereof, of the foregoing contribution, which shall constitute the
Initial Trust Estate and shall be deposited in the Collection Account. The
Depositor shall pay the organizational expenses of the Trust as they may arise
or shall, upon the request of the Eligible Lender Trustee, promptly reimburse
the Eligible Lender Trustee for any such expenses paid by the Eligible Lender
Trustee.
SECTION 2.6 Declaration of Trust. The Eligible Lender Trustee
hereby declares that it will hold the Trust Estate in trust upon and subject to
the conditions set forth herein for the use and benefit of the holder of the
Excess Distribution Certificate, subject to the obligations of the Trust under
the other Basic Documents. It is the intention of the parties hereto that the
Trust constitute a statutory trust under Delaware law and that this Agreement
constitute the governing instrument of such trust. Effective as of the date
hereof, the Eligible Lender Trustee shall have all rights, powers and duties set
forth herein with respect to accomplishing the purposes of the Trust.
SECTION 2.7 Liability of the Holders of the Excess Distribution
Certificate.
(a) Notwithstanding the provisions of Section 3803 of the Delaware
Statutory Trust Act, the Depositor shall be liable directly to
and shall indemnify the injured party
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for all losses, claims, damages, liabilities and expenses of
the Trust (including Expenses, to the extent that the assets
of the Trust that would remain if all of the Notes were paid
in full would not be sufficient to pay any such liabilities,
or if such liabilities in fact are not paid out of the Trust
Estate) to the extent that the Depositor would be liable if
the Trust were a partnership under the Delaware Revised
Uniform Limited Partnership Act in which the Depositor were a
general partner; provided, however, that the Depositor shall
not be liable for any losses incurred by a beneficial owner of
a Note in its capacity as a holder of limited recourse debt or
to any holder of the Excess Distribution Certificate. In
addition, any third party creditors of the Trust (other than
in connection with the obligations to Noteholders excepted
above) shall be third party beneficiaries of this paragraph.
(b) No holder of the Excess Distribution Certificate (in such
capacity) shall have any personal liability for any liability
or obligation of the Trust.
SECTION 2.8 Title to Trust Property. Legal title to all of the
Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Eligible Lender Trustee, a co-trustee
and/or a separate trustee, as the case may be; provided that legal title to the
Trust Student Loans shall be vested at all times in the Eligible Lender Trustee
on behalf of the Trust.
SECTION 2.9 Representations, Warranties, and Covenants of the
Depositor. The Depositor hereby represents, warrants and covenants to the
Eligible Lender Trustee as follows:
(a) The Depositor is duly organized and validly existing as a
Delaware limited liability company in good standing under the
laws of the State of Delaware, with power and authority to own
its properties and to conduct its business as such properties
are currently owned and such business is presently conducted.
(b) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the
Depositor has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the
Trust (or with the Eligible Lender Trustee on behalf of the
Trust) and the Depositor has duly authorized such sale and
assignment and deposit to the Trust (or to the Eligible Lender
Trustee on behalf of the Trust) by all necessary action; and
the execution, delivery and performance of this Agreement has
been duly authorized by the Depositor by all necessary action.
(c) This Agreement constitutes a legal, valid and binding
obligation of the Depositor enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency,
reorganization and similar laws relating to creditors' rights
generally and subject to general principles of equity.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of
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the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, the
Certificate of Formation or operating agreement of the
Depositor, or any indenture, agreement or other instrument to
which the Depositor is a party or by which it is bound; nor
result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than pursuant to the
Basic Documents); nor violate any law or, to the Depositor's
knowledge, any order, rule or regulation applicable to the
Depositor of any court or of any Federal or state regulatory
body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
(e) The Depositor agrees for the benefit of the Noteholders and
the holder of the Excess Distribution Certificate that it will
comply with each of the requirements set forth in Certificate
of Formation and its operating agreement and with each of the
undertakings set forth in Annex I hereto.
SECTION 2.10 Intentionally Omitted.
ARTICLE III
Beneficial Ownership and
Excess Distribution Certificate
SECTION 3.1 Initial Beneficial Ownership. Upon the formation of
the Trust by the contribution by the Depositor pursuant to Section 2.5 and until
the issuance of the Excess Distribution Certificate, the Depositor shall be the
sole beneficial owner of the Trust.
SECTION 3.2 Intentionally Omitted.
SECTION 3.3 Intentionally Omitted.
SECTION 3.4 Intentionally Omitted.
SECTION 3.5 Intentionally Omitted.
SECTION 3.6 Intentionally Omitted.
SECTION 3.7 Intentionally Omitted.
SECTION 3.8 Corporate Trust Office. The Eligible Lender Trustee
initially designates Christiana Center/OPS4, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as its principal Corporate Trust Office, at which it
shall act as Trustee of the Trust. The Excess Distribution Certificate
Registrar's New York office and its authenticating agent's office are located at
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Structured Finance Services.
SECTION 3.9 Intentionally Omitted.
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SECTION 3.10 Intentionally Omitted.
SECTION 3.11 Intentionally Omitted.
SECTION 3.12 Intentionally Omitted.
SECTION 3.13 The Excess Distribution Certificate.
(a) General. The Excess Distribution Certificate shall be issued
in one or more registered, definitive physical certificates substantially in the
form of Exhibit A hereto, in minimum percentage interests of at least 10% and
integral multiples of 10% in excess thereof. The Excess Distribution Certificate
shall receive payments as provided in Sections 2.8(l), 2.9(f) and 2.10(b), as
applicable, of the Administration Agreement. The Excess Distribution Certificate
shall be executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Eligible Lender Trustee. An Excess Distribution
Certificate bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Trust, shall be valid and binding obligations of the Trust, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the authentication and delivery of such Excess Distribution Certificate or
did not hold such offices at the date of authentication and delivery of such
Excess Distribution Certificate.
(b) Authentication. Concurrently with the sale of the Trust
Student Loans to the Trust pursuant to the Purchase Agreement, the Eligible
Lender Trustee shall cause the Excess Distribution Certificate to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Depositor, signed by its chairman of the board, its president or any vice
president, without further action by the Depositor. No Excess Distribution
Certificate shall entitle its holder to any benefit under this Agreement, or
shall be valid for any purpose, unless there shall appear on such Excess
Distribution Certificate a certificate of authentication substantially in the
form set forth in Exhibit A, executed by the Eligible Lender Trustee or JPMorgan
Chase Bank, as the Eligible Lender Trustee's authenticating agent, by manual
signature; such authentication shall constitute conclusive evidence that such
Excess Distribution Certificate shall have been duly authenticated and delivered
hereunder. The Excess Distribution Certificate shall be dated the date of its
authentication. No further Excess Distribution Certificates shall be issued
except pursuant to paragraph (c) or (d) below.
(c) Registration of Transfer and Exchange. The Excess Distribution
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to paragraph (f) below, an Excess Distribution Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Eligible Lender Trustee shall provide for the registration of the Excess
Distribution Certificate and of transfers and exchanges of the Excess
Distribution Certificate as herein provided. The Bank of New York shall be the
initial Excess Distribution Certificate Registrar.
Upon surrender for registration of transfer of the Excess Distribution
Certificate at the office or agency maintained pursuant to paragraph (f) below,
the Eligible Lender Trustee shall execute, authenticate and deliver (or shall
cause JPMorgan Chase Bank as its authenticating agent to authenticate and
deliver), in the name of the designated transferee, a new Excess
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Distribution Certificate dated the date of authentication by the Eligible Lender
Trustee or any authenticating agent. At the option of the holder of the Excess
Distribution Certificate, the Excess Distribution Certificate may be exchanged
for another Excess Distribution Certificate upon surrender of the Excess
Distribution Certificate to be exchanged at the office or agency maintained
pursuant to paragraph (f) below.
An Excess Distribution Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Eligible Lender Trustee and
the Excess Distribution Certificate Registrar duly executed by the holder
thereof or his attorney duly authorized in writing, with such signature
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company. An Excess Distribution Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Eligible Lender Trustee in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of the Excess Distribution Certificate, but the Eligible Lender Trustee
or the Excess Distribution Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of the Excess Distribution Certificate.
The preceding provisions of this Section notwithstanding, the Eligible
Lender Trustee shall not be required to make and the Excess Distribution
Certificate Registrar need not register transfers or exchanges of the Excess
Distribution Certificate for a period of 15 days preceding any Distribution Date
with respect to the Excess Distribution Certificate.
The Excess Distribution Certificate and any beneficial interest in the
Excess Distribution Certificate may not be acquired by (a) employee benefit
plans (as defined in section 3(3) of ERISA) that are subject to the provisions
of Title I of ERISA, (b) plans described in section 4975(e)(1) of the Code,
including individual retirement accounts described in Section 408(a) of the Code
or ▇▇▇▇▇ plans, or (c) Benefit Plans. By accepting and holding the Excess
Distribution Certificate or an interest therein, the holder thereof shall be
deemed to have represented and warranted that it is not a Benefit Plan, is not
purchasing the Excess Distribution Certificate on behalf of a Benefit Plan and
is not using assets of a Plan to purchase the Excess Distribution Certificate
and to have agreed that if the Excess Distribution Certificate is deemed to be a
plan asset, the holder thereof will promptly dispose of the Excess Distribution
Certificate.
(d) Mutilated, Destroyed, Lost or Stolen Excess Distribution
Certificate. If (1) the mutilated Excess Distribution Certificate shall be
surrendered to the Excess Distribution Certificate Registrar, or if the Excess
Distribution Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of the Excess Distribution Certificate, and (2)
there shall be delivered to the Excess Distribution Certificate Registrar and
the Eligible Lender Trustee such security or indemnity as may be required by
them to save each of them and the Trust harmless, then in the absence of notice
that such Excess Distribution Certificate shall have been acquired by a bona
fide purchaser, the Eligible Lender Trustee on behalf of the Trust shall execute
and the Eligible Lender Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Excess Distribution
Certificate, a new Excess
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Distribution Certificate of like tenor. In connection with the issuance of any
new Excess Distribution Certificate under this Section, the Eligible Lender
Trustee and the Excess Distribution Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Excess Distribution
Certificate issued pursuant to this paragraph shall constitute conclusive
evidence of ownership in the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Excess Distribution Certificate shall be found at any
time.
(e) Persons Deemed Owners. Prior to due presentation of the Excess
Distribution Certificate for registration of transfer, the Eligible Lender
Trustee and the Excess Distribution Certificate Registrar and any agent of
either of them may treat the Person in whose name the Excess Distribution
Certificate shall be registered in the Excess Distribution Certificate Register
as the owner of such Excess Distribution Certificate for the purpose of
receiving distributions thereon and for all other purposes whatsoever, and
neither the Eligible Lender Trustee, the Excess Distribution Certificate
Registrar nor any agent thereof shall be bound by any notice to the contrary.
(f) Maintenance of Office or Agency. The Eligible Lender Trustee
shall maintain in the Borough of Manhattan, The City of New York, an office or
offices or agency or agencies where the Excess Distribution Certificate may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Eligible Lender Trustee in respect of the Excess
Distribution Certificate may be served.
(g) Appointment of Excess Distribution Certificate Paying Agent.
The Excess Distribution Certificate Paying Agent shall make distributions to the
holder of the Excess Distribution Certificate from the amounts received from the
Indenture Trustee pursuant to Sections 2.8(l), 2.9(f) and 2.10(b), as applicable
of the Administration Agreement and shall report the amounts of such
distributions to the Indenture Trustee (if the Excess Distribution Certificate
Paying Agent is not the Indenture Trustee). Any Excess Distribution Certificate
Paying Agent shall have the revocable power to receive such funds from the
Indenture Trustee for the purpose of making the distributions referred to above.
The Eligible Lender Trustee may revoke such power and remove the Excess
Distribution Certificate Paying Agent if the Eligible Lender Trustee determines
in its sole discretion that the Excess Distribution Certificate Paying Agent
shall have failed to perform its obligations under this Agreement in any
material respect. The Excess Distribution Certificate Paying Agent shall
initially be the Indenture Trustee, and any co-paying agent chosen by the
Eligible Lender Trustee and consented to by the Administrator (which consent
shall not be unreasonably withheld). The co-paying agent shall initially be
JPMorgan Chase Bank. The Indenture Trustee shall be permitted to resign as
Excess Distribution Certificate Paying Agent upon 30 days' written notice to the
Eligible Lender Trustee. In the event that the Indenture Trustee shall no longer
be the Excess Distribution Certificate Paying Agent, the Eligible Lender Trustee
shall appoint a successor to act as Excess Distribution Certificate Paying Agent
(which shall be a bank or trust company). The Eligible Lender Trustee shall
cause such successor Excess Distribution Certificate Paying Agent or any
additional Excess Distribution Certificate Paying Agent appointed by the
Eligible Lender Trustee to execute and deliver to the Eligible Lender Trustee an
instrument in which such successor Excess Distribution Certificate Paying Agent
or additional Excess Distribution Certificate Paying Agent shall agree with the
Eligible Lender Trustee that as Excess Distribution Certificate Paying
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Agent, such successor Excess Distribution Certificate Paying Agent or additional
Excess Distribution Certificate Paying Agent will hold all sums, if any, held by
it for payment to the holder of the Excess Distribution Certificate in trust for
the benefit of such holder until such sums shall be paid to such holder. The
Excess Distribution Certificate Paying Agent shall return all unclaimed funds to
the Eligible Lender Trustee and upon removal of an Excess Distribution
Certificate Paying Agent such Excess Distribution Certificate Paying Agent shall
also return all funds in its possession to the Eligible Lender Trustee. The
provisions of Article VII and VIII of the Indenture shall apply to the Indenture
Trustee also in its role as Excess Distribution Certificate Paying Agent, for so
long as the Indenture Trustee shall act as Excess Distribution Certificate
Paying Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Excess Distribution
Certificate Paying Agent shall include any co-paying agent unless the context
requires otherwise.
(h) Restrictions on Transfer of the Excess Distribution
Certificate. (i) The Excess Distribution Certificate may be transferred to the
Depositor or to any Affiliate of the Depositor, without any requirement to
provide any officer's certificates or legal opinions that would otherwise be
required if such proposed transfer was being made to a Person who is not an
Affiliate of the Depositor.
(i) Except as provided above, the Excess Distribution
Certificate shall not be sold, pledged, transferred or assigned except
as provided below:
(A) The Excess Distribution Certificate has not
been registered or qualified under the Securities Act of 1933, as
amended (the "Securities Act") or any state securities law. No
transfer, sale, pledge or other disposition of the Excess Distribution
Certificate or any interest therein shall be made unless such transfer
is made pursuant to an effective registration statement under the
Securities Act and effective registration or qualification under
applicable state securities laws, or is made in a transaction which
does not require such registration or qualification. In the event that
a transfer is to be made without registration or qualification, the
Eligible Lender Trustee shall require, in order to assure compliance
with such laws, that the prospective transferor and transferee each
certify to the Eligible Lender Trustee, the Excess Distribution
Certificate Registrar, the Administrator, and, if it is not the
proposed transferor, the Depositor, in writing, the facts surrounding
the transfer. Such certifications shall be substantially in the forms
of Exhibit C hereto and Exhibit D-1 or D-2 hereto, as applicable. In
the event that such a transfer is to be made within two years from the
date of the initial issuance of the Excess Distribution Certificate
pursuant hereto (other than a transfer as to which the proposed
transferee has provided a certificate in the form of Exhibit D-2), the
Eligible Lender Trustee in its sole discretion, may require that there
shall also be delivered to the Eligible Lender Trustee, the Excess
Distribution Certificate Registrar, the Administrator, or, if it is not
the proposed transferor, the Depositor, at the expense of the
transferor, an opinion of counsel that such transfer may be made
pursuant to an exemption from the Securities Act and such state
securities laws. Any such opinion of counsel shall not be an expense of
the Eligible Lender Trustee, the Excess Distribution Certificate
Registrar, the Administrator, and, if it is not the proposed
transferor, the Depositor. None of the Depositor, the Administrator or
the Eligible Lender Trustee is obligated to register or qualify the
Excess Distribution Certificate under the Securities Act or any other
securities
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law or to take any action not otherwise required under this Agreement
to permit the transfer of the Excess Distribution Certificate without
registration or qualification. Any such holder of the Excess
Distribution Certificate desiring to effect such transfer shall, and
does hereby agree to, indemnify the Eligible Lender Trustee, the Excess
Distribution Certificate Registrar, the Administrator, and, if it is
not the proposed transferor, the Depositor, against any liability that
may result if the transfer is not so exempt or is made in accordance
with such applicable federal and state laws.
(B) No transfer of the Excess Distribution
Certificate will be registered by the Eligible Lender Trustee or the
Excess Distribution Certificate Registrar unless the Eligible Lender
Trustee, the Certificate Registrar, the Administrator, and, if it is
not the proposed transferor, the Depositor receives a representation
from the proposed transferee of the Excess Distribution Certificate,
substantially in the form of Exhibit D-1 or D-2, as the case may be,
that such transferee is not acquiring the Excess Distribution
Certificate directly or indirectly for, on behalf of or with the assets
of a Plan. If any proposed transferee shall become a holder of the
Excess Distribution Certificate in violation of these provisions, then
the last preceding permitted transferee shall be restored, to the
extent permitted by law, to all rights as holder of the Excess
Distribution Certificate, retroactive to the date of registration of
such transfer of the Excess Distribution Certificate. Neither the
Eligible Lender Trustee nor the Excess Distribution Certificate
Registrar shall have any liability to any person for any registration
or transfer of the Excess Distribution Certificate that is not
permitted or for making any payments due on the Excess Distribution
Certificate to the holder or taking any action with respect to such
holder under this Agreement. Any proposed transferee who becomes a
holder of the Excess Distribution Certificate shall agree to indemnify
the Eligible Lender Trustee, the Excess Distribution Certificate
Registrar, the Administrator, and, if it is not the proposed
transferor, the Depositor, against any loss, damage or penalty incurred
as a result of the transfer of the Excess Distribution Certificate to
such proposed transferee in violation of such restrictions.
(C) The prospective transferee shall be aware
that the Excess Distribution Certificate shall bear legends referring
to the restrictions contained in sub-clauses (A) and (B) above and by
its acceptance of the Excess Distribution Certificate agrees to abide
by such restrictions.
(D) The prospective transferee shall deliver an
opinion of counsel addressed to the Eligible Lender Trustee, the
Administrator, and, if it is not the proposed transferor, the
Depositor, to the effect that, (1) as a matter of federal income tax
law, such prospective transferee is permitted to accept the transfer of
the Excess Distribution Certificate, (2) such transfer or pledge would
not jeopardize the tax treatment of the Trust, (3) such transfer or
pledge would not subject the Trust to any entity-level tax, (4) such
transfer or pledge would not jeopardize the status of the Notes as debt
for all purposes, and (5) such pledge or transfer would not cause the
Trust to be treated, for federal income tax purposes, as an association
or a publicly traded partnership taxable as a corporation.
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(E) No pledge or transfer of the Excess
Distribution Certificate shall be effective unless such purchase or
transfer is to a single beneficial owner who shall be the registered
holder of the Excess Distribution Certificate.
ARTICLE IV
Actions by Eligible Lender Trustee
SECTION 4.1 Prior Notice to the Holder of the Excess Distribution
Certificate With Respect to Certain Matters. With respect to the following
matters, the Eligible Lender Trustee shall not take action unless at least 30
days before the taking of such action, the Eligible Lender Trustee shall have
notified the holder of the Excess Distribution Certificate and each of the
Rating Agencies in writing of the proposed action and the holder of the Excess
Distribution Certificate shall not have notified the Eligible Lender Trustee in
writing prior to the 30th day after such notice is given that it has withheld
consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust
(except claims or lawsuits brought in connection with the
collection of the Trust Student Loans) and the compromise of
any material action, claim or lawsuit brought by or against
the Trust (except with respect to the aforementioned claims or
lawsuits for collection of Trust Student Loans);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any class of Noteholders is
required; or
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any class of Noteholder is
not required and such amendment materially adversely affects
the interests of the holder of the Excess Distribution
Certificate.
SECTION 4.2 Action with Respect to Sale of the Trust Student
Loans. The Eligible Lender Trustee shall not have the power, except upon the
written direction of the Depositor and except as expressly provided in the Basic
Documents, to sell the Trust Student Loans after the payment in full of the
Notes.
SECTION 4.3 Action with Respect to Bankruptcy. The Eligible
Lender Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the prior approval of the Depositor and
the delivery to the Eligible Lender Trustee by the Depositor of a certificate
certifying that the Depositor reasonably believes that the Trust is insolvent.
SECTION 4.4 Restrictions. Neither the Depositor nor the holder of
the Excess Distribution Certificate shall direct the Eligible Lender Trustee to
take or refrain from taking any action if such action or inaction would be
contrary to any obligation of the Trust or the Eligible Lender Trustee under
this Agreement or any of the other Basic Documents or would be contrary to
Section 2.3 nor shall the Eligible Lender Trustee be permitted to follow any
such direction, if given.
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SECTION 4.5 Intentionally Omitted.
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.1 Application of Trust Funds.
(a) On each Distribution Date, the Eligible Lender Trustee shall
distribute to the holder of the Excess Distribution
Certificate any amounts payable in respect of the Excess
Distribution Certificate in accordance with the Administration
Agreement.
(b) In the event that any withholding tax is imposed on the
Trust's payment to the holder of the Excess Distribution
Certificate, such tax shall reduce the amount otherwise
distributable on the Excess Distribution Certificate.
SECTION 5.2 Method of Payment. Subject to Section 9.1(c),
distributions required to be made to the holder of the Excess Distribution
Certificate on any Distribution Date shall be made to the holder of record on
the preceding Record Date either by wire transfer, in immediately available
funds, to the account of such holder at a bank or other entity having
appropriate facilities therefor, if such holder shall have provided to the
Excess Distribution Certificate Registrar appropriate written instructions
signed by two authorized officers, if any, at least five Business Days prior to
such Distribution Date, or, if not, by check mailed to such holder at the
address of such holder appearing in the Excess Distribution Certificate
Register.
SECTION 5.3 No Segregation of Moneys; No Interest. Subject to
Section 5.1, moneys received by the Eligible Lender Trustee hereunder need not
be segregated in any manner except to the extent required by law or the
Administration Agreement and may be deposited under such general conditions as
may be prescribed by law, and the Eligible Lender Trustee shall not be liable
for any interest thereon.
SECTION 5.4 Reports to the Holder of the Excess Distribution
Certificate, the Internal Revenue Service and Others. The Eligible Lender
Trustee shall provide (or cause to be provided) any reports or other information
required to be provided to the holder of the Excess Distribution Certificate
pursuant to the Code, the regulations promulgated thereunder or other applicable
law. In addition, the Eligible Lender Trustee shall provide (or cause to be
provided) any information concerning the Excess Distribution Certificate to the
Internal Revenue Service or other taxing authority as required under the Code,
the regulations promulgated thereunder or other applicable law. The Eligible
Lender Trustee shall be entitled to hire an independent accounting firm to
perform the functions described in this Section 5.4, the reasonable fees and
expenses of which shall be paid by the Depositor.
SECTION 5.5 Intentionally Omitted.
SECTION 5.6 Intentionally Omitted.
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ARTICLE VI
Authority and Duties of Eligible Lender Trustee
SECTION 6.1 General Authority. The Eligible Lender Trustee is
authorized and directed to execute and deliver the Basic Documents to which the
Trust is to be a party and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents to which the Trust is to be a
party, in each case, in such form as the Depositor shall approve as evidenced
conclusively by the Eligible Lender Trustee's execution thereof, and, on behalf
of the Trust, to direct the Indenture Trustee to authenticate and deliver Notes
in the aggregate principal amount of $2,025,473,000. The Eligible Lender Trustee
is also authorized and directed on behalf of the Trust (i) to acquire and hold
legal title to the Trust Student Loans from the Depositor and (ii) to take all
actions required pursuant to Section 3.2 of the Administration Agreement and
otherwise follow the direction of and cooperate with the Servicer in submitting,
pursuing and collecting any claims to and with the Department with respect to
any Interest Subsidy Payments and Special Allowance Payments relating to the
Trust Student Loans.
In addition to the foregoing, the Eligible Lender Trustee is authorized
to take all actions required of the Trust pursuant to the Basic Documents. The
Eligible Lender Trustee is further authorized from time to time to take such
action as the Administrator directs or instructs with respect to the Basic
Documents and is directed to take such action to the extent that the
Administrator is expressly required pursuant to the Basic Documents to cause the
Eligible Lender Trustee to act.
SECTION 6.2 General Duties. It shall be the duty of the Eligible
Lender Trustee to discharge (or cause to be discharged) all its responsibilities
pursuant to the terms of this Agreement, the other Basic Documents to which the
Trust is a party and to administer the Trust in the interest of the Noteholders
and the holder of the Excess Distribution Certificate subject to and in
accordance with the provisions of this Agreement and the other Basic Documents.
Without limiting the foregoing, the Eligible Lender Trustee shall on behalf of
the Trust file and prove any claim or claims that may exist on behalf of the
Trust against the Depositor in connection with any claims paying procedure as
part of an insolvency or a receivership proceeding involving the Depositor.
Notwithstanding the foregoing, the Eligible Lender Trustee shall be deemed to
have discharged its duties and responsibilities hereunder and under the other
Basic Documents to the extent the Administrator has agreed in the Administration
Agreement to perform and act or to discharge any duty of the Eligible Lender
Trustee hereunder or under any other Basic Document, and the Eligible Lender
Trustee shall not be held liable for the default or failure of the Administrator
to carry out its obligations under the Administration Agreement. Except as
expressly provided in the Basic Documents, the Eligible Lender Trustee shall
have no obligation to administer, service or collect the Trust Student Loans or
to maintain, monitor or otherwise supervise the administration, servicing or
collection of the Trust Student Loans.
SECTION 6.3 Action upon Instruction.
(a) [Reserved]
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(b) The Eligible Lender Trustee shall not be required to take any
action hereunder or under any other Basic Document if the
Eligible Lender Trustee shall have reasonably determined, or
shall have been advised by counsel, that such action is likely
to result in liability on the part of the Eligible Lender
Trustee or is contrary to the terms hereof, any other Basic
Document or is otherwise contrary to law.
(c) Whenever the Eligible Lender Trustee is unable to determine
the appropriate course of action between alternative courses
and actions permitted or required by the terms of this
Agreement or under any other Basic Document, the Eligible
Lender Trustee shall promptly give notice (in such form as
shall be appropriate under the circumstances) to the Depositor
requiring instruction as to the course of action to be
adopted, and to the extent the Eligible Lender Trustee acts in
good faith in accordance with any written instruction of the
Depositor received, the Eligible Lender Trustee shall not be
liable on account of such action to any Person. If the
Eligible Lender Trustee shall not have received appropriate
instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking
such action, not inconsistent with this Agreement, the other
Basic Documents, as it shall deem to be in the best interests
of the Depositor, and shall have no liability to any Person
for such action or inaction.
(d) In the event that the Eligible Lender Trustee is unsure as to
the application of any provision of this Agreement, any other
Basic Document or any such provision is ambiguous as to its
application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this
Agreement permits any determination by the Eligible Lender
Trustee or is silent or is incomplete as to the course of
action that the Eligible Lender Trustee is required to take
with respect to a particular set of facts, the Eligible Lender
Trustee may give notice (in such form as shall be appropriate
under the circumstances) to the Depositor requesting
instruction and, to the extent that the Eligible Lender
Trustee acts or refrains from acting in good faith in
accordance with any such instruction received, the Eligible
Lender Trustee shall not be liable, on account of such action
or inaction, to any Person. If the Eligible Lender Trustee
shall not have received appropriate instruction within 10 days
of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action, not inconsistent
with this Agreement or the other Basic Documents, as it shall
deem to be in the best interest of the holder of the Excess
Distribution Certificate, and shall have no liability to any
Person for such action or inaction.
SECTION 6.4 No Duties Except as Specified in this Agreement or in
Instructions. The Eligible Lender Trustee shall not have any duty or obligation
to manage, make any payment with respect to, register, record, sell, service,
dispose of or otherwise deal with the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Eligible Lender Trustee is a party, except as
expressly provided by the terms of this Agreement or in any document or written
instruction
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received by the Eligible Lender Trustee pursuant to Section 6.3; and no implied
duties or obligations shall be read into this Agreement or any other Basic
Document against the Eligible Lender Trustee. The Eligible Lender Trustee shall
have no responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection of
any security interest or lien granted to it hereunder or to prepare or file any
Commission filing for the Trust or to record this Agreement or any other Basic
Document. The Eligible Lender Trustee nevertheless agrees that it will, at its
own cost and expense, promptly take all action as may be necessary to discharge
any Liens on any part of the Trust Estate that result from actions by, or claims
against, Chase Manhattan Bank USA, National Association in its individual
capacity or as the Eligible Lender Trustee that are not related to the ownership
or the administration of the Trust Estate.
SECTION 6.5 No Action Except under Specified Documents or
Instructions. The Eligible Lender Trustee shall not otherwise deal with any part
of the Trust Estate except (i) in accordance with the powers granted to and the
authority conferred upon the Eligible Lender Trustee pursuant to this Agreement,
(ii) in accordance with the other Basic Documents to which it is a party and
(iii) in accordance with any document or instruction delivered to the Eligible
Lender Trustee pursuant to Section 6.3.
SECTION 6.6 Restrictions. The Eligible Lender Trustee shall not
take any action (a) that is inconsistent with the purposes of the Trust set
forth in Section 2.3 or (b) that, to the actual knowledge of the Eligible Lender
Trustee, would result in the Trust's becoming taxable as a corporation for
Federal income tax purposes. Neither the Depositor nor the holder of the Excess
Distribution Certificate shall direct the Eligible Lender Trustee to take action
that would violate the provisions of this Section.
ARTICLE VII
Concerning the Eligible Lender Trustee
SECTION 7.1 Acceptance of Trusts and Duties. The Eligible Lender
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Eligible Lender Trustee also agrees to disburse all moneys actually received
by it constituting part of the Trust Estate upon the terms of this Agreement and
the other Basic Documents. The Eligible Lender Trustee shall not be answerable
or accountable hereunder or under any other Basic Document under any
circumstances, except (i) for its own willful misconduct or negligence or (ii)
in the case of the inaccuracy of any representation or warranty contained in
Section 7.3 expressly made by the Eligible Lender Trustee. In particular, but
not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) the Eligible Lender Trustee shall not be liable for any error
of judgment made by a responsible officer of the Eligible
Lender Trustee;
(b) the Eligible Lender Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in accordance
with the direction or instructions of the Administrator, the
Depositor or the holder of the Excess Distribution
Certificate;
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(c) no provision of this Agreement or any other Basic Document
shall require the Eligible Lender Trustee to expend or risk
funds or otherwise incur any financial liability in the
performance of any of its rights or powers hereunder or under
any other Basic Document, if the Eligible Lender Trustee shall
have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it;
(d) under no circumstances shall the Eligible Lender Trustee be
liable for indebtedness evidenced by or arising under any of
the Basic Documents, including the principal of and interest
on the Notes;
(e) the Eligible Lender Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or
for the due execution hereof by the Depositor or for the form,
character, genuineness, sufficiency, value or validity of any
of the Trust Estate or for or in respect of the validity or
sufficiency of the Basic Documents, other than the certificate
of authentication on the Excess Distribution Certificate, and
the Eligible Lender Trustee shall in no event assume or incur
any liability, duty, or obligation to any Noteholder or the
holder of the Excess Distribution Certificate, other than as
expressly provided for herein and in the other Basic
Documents;
(f) the Eligible Lender Trustee shall not be liable for the action
or inaction, default or misconduct of the Administrator, the
Depositor, the Indenture Trustee or the Servicer under any of
the other Basic Documents or otherwise and the Eligible Lender
Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the other
Basic Documents that are required to be performed by the
Administrator under the Administration Agreement, the
Indenture Trustee under the Indenture or the Servicer under
the Servicing Agreement; and
(g) the Eligible Lender Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Agreement, or to institute, conduct or defend any litigation
under this Agreement or otherwise or in relation to this
Agreement, any other Basic Document, at the request, order or
direction of the Depositor or holder of the Excess
Distribution Certificate, unless the Depositor or such holder
has offered to the Eligible Lender Trustee security or
indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Eligible Lender
Trustee therein or thereby. The right of the Eligible Lender
Trustee to perform any discretionary act enumerated in this
Agreement or in any other Basic Document shall not be
construed as a duty, and the Eligible Lender Trustee shall not
be answerable for other than its negligence or willful
misconduct in the performance of any such act.
SECTION 7.2 Intentionally Omitted.
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SECTION 7.3 Representations and Warranties. The Eligible Lender
Trustee hereby represents and warrants to the Depositor, for the benefit of the
Noteholders and the holder of the Excess Distribution Certificate, that:
(a) It is duly organized and validly existing in good standing
under the laws of its governing jurisdiction and has an office
located within the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform
its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this
Agreement will be executed and delivered by one of its
officers who is duly authorized to execute and deliver this
Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions
contemplated hereby nor compliance by it with any of the terms
or provisions hereof will contravene any Federal or Delaware
state law, governmental rule or regulation governing the
banking or trust powers of the Eligible Lender Trustee or any
judgment or order binding on it, or constitute any default
under its charter documents or by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a
party or by which any of its properties may be bound.
(d) It is and will maintain its status as an "eligible lender" (as
such term is defined in Section 435(d) of the Higher Education
Act) for purposes of holding legal title to the Trust Student
Loans as contemplated by this Agreement and the other Basic
Documents, it has a lender identification number with respect
to the Trust Student Loans from the Department and has and
will maintain in effect a Guarantee Agreement with each of the
Guarantors with respect to the Trust Student Loans.
SECTION 7.4 Reliance; Advice of Counsel.
(a) The Eligible Lender Trustee shall incur no liability to anyone
in acting upon any signature, instrument, direction, notice,
resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be
genuine and believed by it to be signed by the proper party or
parties. The Eligible Lender Trustee may accept a certified
copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and
that the same is in full force and effect. As to any fact or
matter the method of the determination of which is not
specifically prescribed herein, the Eligible Lender Trustee
may for all purposes hereof rely on a certificate, signed by
the president or any vice president or by the treasurer or
other authorized officers of the relevant party, as to such
fact or matter and such certificate shall constitute full
protection to the Eligible Lender Trustee for any action taken
or omitted to be taken by it in good faith in reliance
thereon.
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(b) In the exercise or administration of the trusts hereunder and
in the performance of its duties and obligations under this
Agreement or the other Basic Documents, the Eligible Lender
Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them
and the Eligible Lender Trustee shall not be liable for the
conduct or misconduct of such agents or attorneys if such
agents or attorneys shall have been selected by the Eligible
Lender Trustee with reasonable care, and (ii) may consult with
counsel and accountants to be selected with reasonable care
and employed by it. The Eligible Lender Trustee shall not be
liable for anything done, suffered or omitted in good faith by
it in accordance with the written opinion or advice of any
such counsel or accountants and not contrary to this Agreement
or any other Basic Document.
SECTION 7.5 Not Acting in Individual Capacity. Except as provided
in this Article VII, in accepting the trusts hereby created Chase Manhattan Bank
USA, National Association acts solely as Eligible Lender Trustee hereunder and
not in its individual capacity and all Persons having any claim against the
Eligible Lender Trustee by reason of the transactions contemplated by this
Agreement or any other Basic Document shall look only to the Trust Estate for
payment or satisfaction thereof.
SECTION 7.6 Eligible Lender Trustee Not Liable for Excess
Distribution Certificates or Trust Student Loans. The recitals contained herein
and in the Excess Distribution Certificate (other than the signature of and
authentication by the Eligible Lender Trustee on the Excess Distribution
Certificate) shall be taken as the statements of the Depositor and the Eligible
Lender Trustee assumes no responsibility for the correctness thereof. The
Eligible Lender Trustee makes no representations as to the validity or
sufficiency of this Agreement, the Excess Distribution Certificate, or any other
Basic Document (other than the signature of and authentication by the Eligible
Lender Trustee on the Excess Distribution Certificate), or the Notes, or of any
Trust Student Loan or related documents. The Eligible Lender Trustee shall at no
time have any responsibility (or liability except for willfully or negligently
terminating or allowing to be terminated any of the Guarantee Agreements, in a
case where the Eligible Lender Trustee knows of any facts or circumstances which
will or could reasonably be expected to result in any such termination) for or
with respect to the legality, validity, enforceability and eligibility for
Guarantee Payments, federal reinsurance, Interest Subsidy Payments or Special
Allowance Payments, as applicable, in respect of any Trust Student Loan, or for
or with respect to the sufficiency of the Trust Estate or its ability to
generate the payments to be distributed to the holder of the Excess Distribution
Certificate under this Agreement or the Noteholders under the Indenture,
including the existence and contents of any computer or other record of any
Trust Student Loan; the validity of the assignment of any Trust Student Loan to
the Eligible Lender Trustee on behalf of the Trust; the completeness of any
Trust Student Loan; the performance or enforcement (except as expressly set
forth in any Basic Document) of any Trust Student Loan; the compliance by the
Depositor or the Servicer with any warranty or representation made under any
Basic Document or in any related document or the accuracy of any such warranty
or representation or any action or inaction of the Administrator, the Indenture
Trustee or the Servicer or any subservicer taken in the name of the Eligible
Lender Trustee.
SECTION 7.7 Eligible Lender Trustee May Own Notes. The Eligible
Lender Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and
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may deal with the Depositor, the Administrator, the Indenture Trustee or the
Servicer in banking transactions with the same rights as it would have if it
were not Eligible Lender Trustee.
ARTICLE VIII
Compensation and Indemnity of Eligible Lender Trustee
SECTION 8.1 Eligible Lender Trustee's Fees and Expenses.
The Eligible Lender Trustee shall receive as compensation for its services
hereunder such fees as have been separately agreed upon before the date hereof
between the Depositor and the Eligible Lender Trustee, and the Eligible Lender
Trustee shall be entitled to be reimbursed by the Depositor, to the extent
provided in such separate agreement, for its other reasonable expenses
(including the reasonable fees and expenses of counsel and independent
accountants) hereunder.
SECTION 8.2 Payments to the Eligible Lender Trustee. Any amounts
paid to the Eligible Lender Trustee pursuant to Section 8.1 hereof or pursuant
to Section 9 of the Sale Agreement, Section 4.2 of the Administration Agreement
or Section 4.2 of the Servicing Agreement shall be deemed not to be a part of
the Trust Estate immediately after such payment.
SECTION 8.3 Indemnity. The Depositor shall cause the
Administrator to indemnify the Eligible Lender Trustee in its individual
capacity and any of its officer, directors, employees and agents as and to the
extent provided for in Section 4.2 of the Administration Agreement.
ARTICLE IX
Termination of Trust Agreement
SECTION 9.1 Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) and the Trust shall
terminate and be of no further force or effect upon the final
distribution by the Eligible Lender Trustee of all moneys or
other property or proceeds of the Trust Estate in accordance
with the terms of the Indenture, the Administration Agreement
and Article V. The bankruptcy, liquidation, dissolution, death
or incapacity of the holder of the Excess Distribution
Certificate shall not (x) operate to terminate this Agreement
or the Trust, nor (y) entitle such holder's legal
representatives or heirs to claim an accounting or to take any
action or proceeding in any court for a partition or winding
up of all or any part of the Trust or Trust Estate nor (z)
otherwise affect the rights, obligations and liabilities of
the parties hereto.
(b) Except as provided in Section 9.1(a), none of the Depositor,
any Noteholder or the holder of the Excess Distribution
Certificate shall be entitled to revoke or terminate the
Trust.
Upon final distribution of any funds remaining in the Trust, the
Eligible Lender Trustee shall file a certificate of cancellation of the Trust's
certificate of trust pursuant to Section 3810(c) of the Delaware Statutory Trust
Act.
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ARTICLE X
Successor Eligible Lender Trustees and
Additional Eligible Lender Trustees
SECTION 10.1 Eligibility Requirements for Eligible Lender Trustee.
The Eligible Lender Trustee shall at all times be a corporation or association
(i) qualifying as an "eligible lender" as such term is defined in Section 435(d)
of the Higher Education Act for purposes of holding legal title to the Trust
Student Loans on behalf of the Trust, with a valid lender identification number
with respect to the Trust Student Loans from the Department; (ii) being
authorized to exercise corporate trust powers and hold legal title to the Trust
Student Loans; (iii) having in effect Guarantee Agreements with each of the
Guarantors; (iv) having a combined capital and surplus of at least $50,000,000
and being subject to supervision or examination by Federal or state authorities;
(v) having its principal place of business in the State of Delaware and
otherwise complying with Section 3807 of the Delaware Statutory Trust Act; and
(vi) having (or having a parent which has) a rating in respect of its long-term
senior unsecured debt of at least BBB- (or the equivalent) by each of the Rating
Agencies (or which, if the long-term senior unsecured debt of such corporation
or association is not rated by any Rating Agency, shall have provided to the
Indenture Trustee written confirmation from such Rating Agency that the
appointment of such corporation or association to serve as Eligible Lender
Trustee will not result in and of itself in a reduction or withdrawal of the
then current rating of any of the Notes). If the Eligible Lender Trustee shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of the Eligible Lender
Trustee shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. In case at any time the
Eligible Lender Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Eligible Lender Trustee shall resign immediately
in the manner and with the effect specified in Section 10.2.
SECTION 10.2 Resignation or Removal of Eligible Lender Trustee.
The Eligible Lender Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Administrator.
Upon receiving such notice of resignation, the Administrator shall promptly
appoint a successor Eligible Lender Trustee meeting the eligibility requirements
of Section 10.1 by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Eligible Lender Trustee and one
copy to the successor Eligible Lender Trustee. If no successor Eligible Lender
Trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Eligible
Lender Trustee may petition any court of competent jurisdiction for the
appointment of a successor Eligible Lender Trustee; provided, however, that such
right to appoint or to petition for the appointment of any such successor shall
in no event relieve the resigning Eligible Lender Trustee from any obligations
otherwise imposed on it under the Basic Documents until such successor has in
fact assumed such appointment.
If at any time the Eligible Lender Trustee shall cease to be or shall
be likely to cease to be eligible in accordance with the provisions of Section
10.1 and shall fail to resign after written request therefor by the
Administrator, or if at any time an Insolvency Event with respect to the
Eligible Lender Trustee shall have occurred and be continuing, then the
Administrator may
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remove the Eligible Lender Trustee. If the Administrator shall remove the
Eligible Lender Trustee under the authority of the immediately preceding
sentence, the Administrator shall promptly appoint a successor Eligible Lender
Trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the outgoing Eligible Lender Trustee so removed and one copy to
the successor Eligible Lender Trustee and payment of all fees owed to the
outgoing Eligible Lender Trustee.
Any resignation or removal of the Eligible Lender Trustee and
appointment of a successor Eligible Lender Trustee pursuant to any of the
provisions of this Section shall not become effective until acceptance of
appointment by the successor Eligible Lender Trustee pursuant to Section 10.3,
payment of all fees and expenses owed to the outgoing Eligible Lender Trustee
and the filing of a certificate of amendment to the Trust's certificate of trust
pursuant to Section 3810(b) of the Delaware Statutory Trust Act. The
Administrator shall provide notice of such resignation or removal of the
Eligible Lender Trustee and to each of the Rating Agencies.
SECTION 10.3 Successor Eligible Lender Trustee. Any successor
Eligible Lender Trustee appointed pursuant to Section 10.2 shall execute,
acknowledge and deliver to the Administrator and to its predecessor Eligible
Lender Trustee an instrument accepting such appointment under this Agreement,
and thereupon the resignation or removal of the predecessor Eligible Lender
Trustee shall become effective and such successor Eligible Lender Trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor under this
Agreement, with like effect as if originally named as Eligible Lender Trustee.
The predecessor Eligible Lender Trustee shall upon payment of its fees and
expenses deliver to the successor Eligible Lender Trustee all documents,
statements, moneys and properties held by it under this Agreement and shall
assign, if permissible, to the successor Eligible Lender Trustee the lender
identification number obtained from the Department on behalf of the Trust; and
the Administrator and the predecessor Eligible Lender Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Eligible Lender
Trustee all such rights, powers, duties and obligations.
No successor Eligible Lender Trustee shall accept such appointment as
provided in this Section unless at the time of such acceptance such successor
Eligible Lender Trustee shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Eligible Lender Trustee
pursuant to this Section, the Administrator shall mail notice of the successor
of such Eligible Lender Trustee to the holder of the Excess Distribution
Certificate, the Indenture Trustee, the Noteholders and the Rating Agencies. If
the Administrator shall fail to mail such notice within 10 days after acceptance
of appointment by the successor Eligible Lender Trustee, the successor Eligible
Lender Trustee shall cause such notice to be mailed at the expense of the
Administrator.
SECTION 10.4 Merger or Consolidation of Eligible Lender Trustee.
Any corporation into which the Eligible Lender Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Eligible Lender
Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Eligible Lender Trustee, shall, without
the
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execution or filing of any instrument or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding, be the
successor of the Eligible Lender Trustee hereunder; provided that such
corporation shall be eligible pursuant to Section 10.1; and provided further
that the Eligible Lender Trustee shall mail notice of such merger or
consolidation to the Rating Agencies not less than 15 days prior to the
effective date thereof.
SECTION 10.5 Appointment of Co-Eligible Lender Trustee or Separate
Eligible Lender Trustee. Notwithstanding any other provisions of this Agreement,
at any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust may at the time be located, the
Administrator and the Eligible Lender Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Eligible Lender Trustee, meeting the eligibility
requirements of clauses (i) through (iii) of Section 10.1, to act as co-trustee,
jointly with the Eligible Lender Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Estate, and to vest in such Person, in
such capacity, such title to the Trust Estate, or any part thereof, and, subject
to the other provisions of this Section, such powers, duties, obligations,
rights and trusts as the Administrator and the Eligible Lender Trustee may
consider necessary or desirable. If the Administrator shall not have joined in
such appointment within 15 days after the receipt by it of a request so to do,
the Eligible Lender Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor trustee pursuant to clauses (iv), (v)
and (vi) of Section 10.1 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred
or imposed upon the Eligible Lender Trustee shall be conferred upon and
exercised or performed by the Eligible Lender Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Eligible Lender Trustee joining in such act), except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed, the Eligible Lender Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights,
powers, duties, and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee,
solely at the direction of the Eligible Lender Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Eligible Lender Trustee
acting jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Eligible Lender
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this
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Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Eligible Lender Trustee or separately, as may be provided
therein, subject to all the provisions of this Agreement, specifically including
every provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Eligible Lender Trustee. Each such
instrument shall be filed with the Eligible Lender Trustee and a copy thereof
given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Eligible
Lender Trustee as its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Eligible Lender Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE XI
Miscellaneous
SECTION 11.1 Supplements and Amendments. This Agreement may be
amended by the Depositor and the Eligible Lender Trustee, with prior written
notice to the Rating Agencies, without the consent of any of the Noteholders, to
cure any ambiguity, to correct or supplement any provisions in this Agreement or
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or modifying in any manner
the rights of the Noteholders; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of any Noteholder.
This Agreement may also be amended from time to time by the Depositor
and the Eligible Lender Trustee, with prior written notice to the Rating
Agencies, with the consent of (i) the Class A Noteholders evidencing not less
than a majority of the Outstanding Amount of the Class A Notes and (ii) the
Class B Noteholders evidencing not less than a majority of the Class B Notes,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or modifying in any manner
the rights of the Class A Noteholders or Class B Noteholders, as the case may
be; provided, however, that no such amendment shall (a) increase or reduce in
any manner the amount of, or accelerate or delay the timing of, collections of
payments on Trust Student Loans or distributions that shall be required to be
made for the benefit of the Noteholders or (b) reduce the aforesaid percentage
of the Outstanding Amount of any class of Notes required to consent to any such
amendment, without the consent of all the outstanding Noteholders of such class.
Promptly after the execution of any such amendment or consent, the
Eligible Lender Trustee shall furnish written notification of the substance of
such amendment or consent to the holder of the Excess Distribution Certificate,
the Indenture Trustee and each of the Rating Agencies.
-22-
It shall not be necessary for the consent of the Noteholders or the
Indenture Trustee pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of provided for in this Agreement or in any other Basic Document)
and of evidencing the authorization of the execution thereof shall be subject to
such reasonable requirements as the Eligible Lender Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the Eligible
Lender Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement. The Eligible Lender Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Eligible Lender Trustee's own rights,
duties or immunities under this Agreement or otherwise.
SECTION 11.2 No Legal Title to Trust Estate in Holder of the
Excess Distribution Certificate. The holder of the Excess Distribution
Certificate shall not have legal title to any part of the Trust Estate. The
holder of the Excess Distribution Certificate shall be entitled to receive
distributions with respect to its undivided beneficial ownership interest
therein only in accordance with Section 3.13 of this Agreement. No transfer, by
operation of law or otherwise, of any right, title, or interest of the holder of
the Excess Distribution Certificate to and in its beneficial ownership interest
in the Trust Estate shall operate to terminate this Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Trust Estate.
SECTION 11.3 Limitations on Rights of Others. Except for Section
2.7, the provisions of this Agreement are solely for the benefit of the Eligible
Lender Trustee, the Depositor, the holder of the Excess Distribution
Certificate, the Administrator and, to the extent expressly provided herein, the
Indenture Trustee and the Noteholders, and nothing in this Agreement (other than
Section 2.7), whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Trust Estate
or under this Agreement or any covenants, conditions or provisions contained
herein.
SECTION 11.4 Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt by the intended recipient or three Business Days after
mailing if mailed by certified mail, postage prepaid (except that notice to the
Eligible Lender Trustee shall be deemed given only upon actual receipt by the
Eligible Lender Trustee), if to the Eligible Lender Trustee, addressed to its
Corporate Trust Office; if to the Depositor, addressed to SLM Funding LLC, ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Legal Department, or, as to
each party, at such other address as shall be designated by such party in a
written notice to each other party.
SECTION 11.5 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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SECTION 11.6 Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon to the benefit of, the Depositor and its
successors, the Eligible Lender Trustee and its successors, each holder of the
Excess Distribution Certificate and its successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by a Noteholder or the holder of the Excess Distribution
Certificate shall bind the successors and assigns of such holder.
SECTION 11.8 No Petition.
(a) The Depositor will not at any time institute against the Trust
any bankruptcy proceedings under any United States Federal or
state bankruptcy or similar law in connection with any
obligations relating to the Excess Distribution Certificate,
the Notes, this Agreement or any of the other Basic Documents.
(b) The Eligible Lender Trustee (not in its individual capacity
but solely as Eligible Lender Trustee), by entering into this
Agreement, the holder of the Excess Distribution Certificate
by accepting the Excess Distribution Certificate, and the
Indenture Trustee and each Noteholder by accepting the
benefits of this Agreement, hereby covenant and agree that
they will not at any time institute against the Depositor or
the Trust, or join in any institution against the Depositor or
the Trust of, any bankruptcy, reorganization, arrangement,
insolvency, receivership or liquidation proceedings, or other
proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations
relating to the Notes, this Agreement or any of the other
Basic Documents.
SECTION 11.9 No Recourse. Each holder of the Excess Distribution
Certificate by accepting the Excess Distribution Certificate acknowledges that
such holder's certificate represents beneficial interests in the Trust only and
do not represent interests in or obligations of the Depositor, the Servicer, the
Administrator, the Eligible Lender Trustee, the Indenture Trustee or any
Affiliate thereof or any officer, director or employee of any thereof and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated in this Agreement, the Excess Distribution
Certificate or the other Basic Documents.
SECTION 11.10 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Eligible Lender Trustee,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SLM FUNDING LLC,
as the Depositor,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Acknowledged and agreed as to Section
3.13(c) and Section 3.13(g) of
this Trust Agreement
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Excess Distribution
Certificate Paying Agent,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Agent
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EXHIBIT A
TO THE TRUST AGREEMENT
[FORM OF EXCESS DISTRIBUTION CERTIFICATE]
[SEE REVERSE FOR CERTAIN DEFINITIONS]
No. [__] [___]% Percentage Interest
THIS EXCESS DISTRIBUTION CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION
OF, OR AN INTEREST IN, AND IS NOT GUARANTEED BY THE DEPOSITOR, THE ELIGIBLE
LENDER TRUSTEE, THE SERVICER, THE SWAP COUNTERPARTY, THE ADMINISTRATOR OR ANY OF
THEIR RESPECTIVE AFFILIATES. THIS EXCESS DISTRIBUTION CERTIFICATE IS NOT INSURED
OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY PRIVATE
INSURER.
THIS EXCESS DISTRIBUTION CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST THAT THIS
CERTIFICATE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) TO A PERSON
WHOM THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (II)
TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS AN INSTITUTIONAL
ACCREDITED INVESTOR TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR TRANSFER
IS BEING MADE IN RELIANCE ON REGULATION D, AND IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTION, OR
(III) TO A PERSON IN A TRANSACTION THAT IS REGISTERED UNDER THE SECURITIES ACT
OR THAT IS OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING
THIS EXCESS DISTRIBUTION CERTIFICATE, REPRESENTS AND AGREES FOR THE BENEFIT OF
THE DEPOSITOR, THE ADMINISTRATOR AND THE ELIGIBLE LENDER TRUSTEE THAT: IT IS
EITHER A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, OR AN
INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1)-(3) AND (7) OF
REGULATION D UNDER THE SECURITIES ACT) OR AN ENTITY IN WHICH ALL THE EQUITY
OWNERS COME WITHIN SUCH PARAGRAPHS, OR THAT ITS PURCHASE OF THIS EXCESS
DISTRIBUTION CERTIFICATE IS OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, AND THAT IT IS
HOLDING THIS EXCESS DISTRIBUTION CERTIFICATE FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION.
A-1
NO TRANSFER OF THIS EXCESS DISTRIBUTION CERTIFICATE WILL BE REGISTERED
(EXCEPT TO AN AFFILIATE OF THE DEPOSITOR) UNLESS THERE IS PROVIDED A
REPRESENTATION SATISFACTORY TO THE ELIGIBLE LENDER TRUSTEE THAT THIS EXCESS
DISTRIBUTION CERTIFICATE IS NOT BEING ACQUIRED DIRECTLY OR INDIRECTLY FOR, ON
BEHALF OF OR WITH THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA") AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (EACH A "PLAN").
THIS EXCESS DISTRIBUTION CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE
ACCOUNT OF A BENEFIT PLAN (AS DEFINED BELOW). THIS CERTIFICATE IS NOT GUARANTEED
OR INSURED BY ANY GOVERNMENTAL AGENCY.
▇-▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇-▇
EXCESS DISTRIBUTION CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of student loans sold to
the Trust by SLM Funding LLC.
(This Excess Distribution Certificate does not represent an interest in
or obligation of SLM Funding LLC, the Servicer (as defined below), the
Eligible Lender Trustee (as defined below) or any of their respective
affiliates, except to the extent described below.)
THIS CERTIFIES THAT SLM Funding LLC is the registered owner of a 100%
percentage interest in this Excess Distribution Certificate. The SLM Student
Loan Trust 2003-8 (the "Trust") was formed under the laws of the State of
Delaware by SLM Funding LLC, a Delaware limited liability company (the
"Depositor"). The Trust was created pursuant to a Trust Agreement dated as of
August 1, 2003, the "Trust Agreement" between the Depositor, The Bank of New
York as Indenture Trustee (the "Indenture Trustee") and Chase Manhattan Bank
USA, National Association, a national banking association, not in its individual
capacity but solely as eligible lender trustee on behalf of the Trust (the
"Eligible Lender Trustee"), a summary of certain of the pertinent provisions of
which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in Appendix A
to the Trust Agreement.
Issued under the Indenture dated as of August 1, 2003, among the Trust,
the Indenture Trustee and the Eligible Lender Trustee, are Notes designated as
"Student Loan-Backed Notes" (the "Notes"). This Excess Distribution Certificate
is issued under and is subject to the terms, provisions and conditions of the
Trust Agreement, to which Trust Agreement the holder of this Excess Distribution
Certificate by virtue of the acceptance hereof assents and by which such holder
is bound. The property of the Trust includes a pool of student loans (the "Trust
Student Loans"), all moneys paid thereunder on or after July 7, 2003, certain
bank accounts and the proceeds thereof and certain other rights under the Trust
Agreement, the Sale Agreement, the Purchase Agreement, the Administration
Agreement, the Servicing Agreement and the Interest Rate Cap Agreement and all
proceeds of the foregoing.
To the extent of funds available therefor, amounts owing hereon will be
distributed on the 15th day of each March, June, September and December (or, if
such 15th day is not a Business Day, the next succeeding Business Day) (each a
"Distribution Date"), commencing on September 15, 2003, to the person in whose
name this Excess Distribution Certificate is registered as of the close of
business on the day immediately preceding the Distribution Date (such day the
"Record Date"), in each case to the extent of such holder's fractional and
undivided interest in the amount to be distributed hereon on such Distribution
Date pursuant to Sections 2.8(l), 2.9(f) and 2.10(b), as applicable of the
Administration Agreement.
The holder of this Excess Distribution Certificate acknowledges and
agrees that its rights to receive distributions in respect of this Excess
Distribution Certificate are subordinated to the rights of the Noteholders as
described in the Basic Documents.
A-3
It is the intent of the Depositor, and the holder of this Excess
Distribution Certificate that, for purposes of Federal, state and local income
and franchise and any other income taxes, the Notes will be treated as
newly-issued debt of, and this Excess Distribution Certificate will be treated
as equity in, the Trust. The holder of this Excess Distribution Certificate
agrees to treat, and to take no action inconsistent with the treatment of, this
Excess Distribution Certificate for such tax purposes as equity in the Trust.
The holder of this Excess Distribution Certificate, by its acceptance
of this Excess Distribution Certificate, covenants and agrees that it will not
at any time institute against the Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency, receivership or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to this
Excess Distribution Certificate, the Notes, the Trust Agreement or any of the
other Basic Documents.
Distributions on this Excess Distribution Certificate will be made as
provided in the Administration Agreement to the holder of record hereof without
the presentation or surrender of this Excess Distribution Certificate or the
making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this Excess
Distribution Certificate will be made after due notice by the Administrator of
the pendency of such distribution and only upon presentation and surrender of
this Excess Distribution Certificate at the office or agency maintained for the
purpose by the Eligible Lender Trustee in the Borough of Manhattan, The City of
New York.
Reference is hereby made to the further provisions of this Excess
Distribution Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Eligible Lender Trustee or its
authenticating agent, by manual signature, this Excess Distribution Certificate
shall not entitle the holder hereof to any benefit under the Trust Agreement or
the Administration Agreement or be valid for any purpose.
A-4
IN WITNESS WHEREOF, the Eligible Lender Trustee on behalf of
the Trust and not in its individual capacity has caused this Excess Distribution
Certificate to be duly executed as of the date set forth below.
SLM STUDENT LOAN TRUST 2003-8
by CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its individual
capacity but solely as Eligible Lender Trustee
By:______________________________
Authorized Signatory
Date: August 7, 2003
A-5
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Excess Distribution Certificate referred to in the within-mentioned
Trust Agreement.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Eligible
Lender Trustee,
By:____________________________
Authorized Signatory
OR
JPMORGAN CHASE BANK, solely in its capacity as
Authenticating Agent for the Eligible Lender
Trustee,
By:__________________________
Authenticating Agent
Date: August 7, 2003
A-6
[REVERSE OF EXCESS DISTRIBUTION CERTIFICATE]
This Excess Distribution Certificate does not represent an obligation
of, or an interest in, the Depositor, ▇▇▇▇▇▇ ▇▇▇ Servicing L.P., as servicer
(the "Servicer"), Student Loan Marketing Association, as administrator (the
"Administrator"), the Eligible Lender Trustee or any affiliates of any of them,
and no recourse may be had against such parties or their assets, except as may
be expressly set forth or contemplated herein, in the Trust Agreement or in the
other Basic Documents. In addition, this Excess Distribution Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections with respect to the Trust Student Loans, all
as more specifically set forth in the Administration Agreement. A copy of each
of the Trust Agreement, the Sale Agreement, the Purchase Agreement, the
Administration Agreement, the Servicing Agreement and the Indenture may be
examined during normal business hours at the principal office of the
Administrator, and at such other places, if any, designated by the
Administrator, by the holder of this Excess Distribution Certificate upon
request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the certification of the rights and obligations of the
Depositor and the rights of the holders of this Excess Distribution Certificate
under the Trust Agreement at any time by the Depositor and the Eligible Lender
Trustee with the consent of the holders of the Class A Notes and the Class B
Notes, each voting as a class evidencing not less than a majority of the
outstanding principal balance of each class of the Notes. The Trust Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Noteholders.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Excess Distribution Certificate is
registerable in the Excess Distribution Certificate Register upon surrender of
this Excess Distribution Certificate for registration of transfer at the offices
or agencies maintained by Chase Manhattan Bank USA, National Association in its
capacity as Excess Distribution Certificate Registrar, or by any successor
Excess Distribution Certificate Registrar, in the Borough of Manhattan, The City
of New York, accompanied by a written instrument of transfer in form
satisfactory to the Eligible Lender Trustee and the Excess Distribution
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon a new Excess Distribution
Certificate will be issued to the designated transferee.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, this Excess Distribution Certificate is exchangeable for a
new Excess Distribution Certificate as requested by the holder surrendering the
same. No service charge will be made for any such registration of transfer or
exchange, but the Eligible Lender Trustee or the Excess Distribution Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith.
The Eligible Lender Trustee, the Certificate Registrar and any agent of
the Eligible Lender Trustee or the Excess Distribution Certificate Registrar may
treat the person in whose name this Excess Distribution Certificate is
registered as the owner hereof for all purposes, and
A-7
none of the Eligible Lender Trustee or the Excess Distribution Certificate
Registrar or any such agent shall be affected by any notice to the contrary.
This Excess Distribution Certificate (including any beneficial interest
herein) may not be acquired by or for the account of (i) an employee benefit
plan (as defined in Section 3(3) of ERISA) that is subject to the provisions of
Title I of ERISA, (ii) a plan described in section 4975(e)(1) of the Internal
Revenue Code of 1986, as amended (the "Code"), including an individual
retirement account described in Section 408(a) of the Code or a ▇▇▇▇▇ plan or
(iii) any entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (each, a "Benefit Plan"). By accepting and
holding this Excess Distribution Certificate, the holder hereof shall be deemed
to have represented and warranted that it is not a Benefit Plan, it is not
purchasing this Excess Distribution Certificate on behalf of a Benefit Plan, is
not using assets of a Benefit Plan to purchase this Excess Distribution
Certificate and to have agreed that if this Excess Distribution Certificate is
deemed to be a plan asset, the Holder will promptly dispose of this Excess
Distribution Certificate.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Noteholders and
the holder of this Excess Distribution Certificate of all amounts required to be
paid to them pursuant to the Trust Agreement, the Administration Agreement and
the Indenture and the disposition of all property held as part of the Trust. The
Servicer may at its option purchase the corpus of the Trust at a price specified
in the Administration Agreement; however, such right of purchase is exercisable
only on any Distribution Date on or after the date on which the Pool Balance is
less than or equal to 10% of the Initial Pool Balance. Any Trust Student Loans
remaining in the Trust as of the end of the Collection Period immediately
preceding the Trust Auction Date will be offered for sale by the Indenture
Trustee by auction in accordance with the procedure described in the Indenture.
This Excess Distribution Certificate shall be construed in accordance
with the laws of the State of Delaware, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
A-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________________
the within Excess Distribution Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
______________________________________________________________________Attorney
to transfer said Excess Distribution Certificate on the books of the Excess
Distribution Certificate Registrar, with full power of substitution in the
premises.
Dated:
______________________________*
Signature Guaranteed:
______________________________*
* NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within the Excess Distribution Certificate in
every particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock Exchange or
a commercial bank or trust company.
A-9
EXHIBIT B
FORM OF
CERTIFICATE OF TRUST
OF
SLM STUDENT LOAN
TRUST 2003-8
This Certificate of Trust of SLM STUDENT LOAN TRUST 2003-8 (the
"Trust") is being duly executed and filed on behalf of the Trust by the
undersigned, as trustee, to form a statutory trust under the Delaware Statutory
Trust Statute (12 Del. C. Section 3801 et seq.) (the "Act").
1 .Name. The name of the statutory trust formed by this
Certificate of Trust is SLM STUDENT LOAN TRUST 2003-8.
2 .Delaware Trustee. The name and business address of the
eligible lender trustee of the Trust in the State of Delaware are the Chase
Manhattan Bank USA, National Association, c/o JPMorgan Chase Bank, 500 ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Road, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇/▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Attn:
Institutional Trust Services.
3 .Effective Date. This Certificate of Trust shall be effective
upon filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Eligible
Lender Trustee
By: _______________________________
Name:
Title:
B-1
EXHIBIT C
[FORM OF TRANSFEROR LETTER]
[Date]
Student Loan Marketing Association
as Administrator
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Chase Manhattan Bank USA, National Association
as Eligible Lender Trustee and Excess Distribution Certificate Registrar
Christiana Center/OPS4
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: SLM Student Loan Trust 2003-8,
Excess Distribution Certificate (the "Certificate")
Ladies and Gentlemen:
In connection with our disposition of the above Certificate, we certify
that (a) we understand that the Certificate has not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and is being disposed
by us in a transaction that is exempt from the registration requirements of the
Securities Act, and (b) we have not offered or sold the Certificate to, or
solicited offers to buy the Certificate from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner that
would be deemed, or taken any other action would result in, a violation of
Section 5 of the Securities Act.
Very truly yours,
__________________________________________
[Print Name of Transferor]
By: ______________________________________
Authorized Officer
C-1
EXHIBIT D-1
[FORM OF TRANSFEREE LETTER (NON-RULE 144A)]
[Date]
Student Loan Marketing Association
as Administrator
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Chase Manhattan Bank USA, National Association
as Eligible Lender Trustee and Excess Distribution Certificate Registrar
Christiana Center/OPS4
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: SLM Student Loan Trust 2003-8,
Excess Distribution Certificate (the "Certificate")
Ladies and Gentlemen:
In connection with our acquisition of the above Certificate, we certify
that (a) we understand that the Certificate is not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Securities Act and any such laws, (b)
we are an institutional "accredited investor," as defined in Rule 501 (a) (1),
(2), (3) or (7) of Regulation D under the Securities Act or an entity in which
all of the equity owners come within such paragraphs, and have such knowledge
and experience in financial and business matters that we are capable of
evaluating the merits and risks of investments in the Certificate, (c) we have
had the opportunity to ask questions of and receive answers from the Depositor
concerning the purchase of the Certificate and all matters relating thereto or
any additional information deemed necessary to our decision to purchase the
Certificate, (d) we are not acquiring the Certificate for, on behalf of or with
the assets of, an employee benefit plan or other retirement arrangement (a
"Plan") which is subject to Title I of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and/or Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), (e) we are acquiring the Certificate for
investment for our own account and not with a view to any distribution of the
Certificate (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificate in accordance with clause (g) below), (f)
we have not offered or sold the Certificate to, or solicited offers to buy the
Certificate from, any person, or otherwise approached or negotiated with any
person with respect thereto, or taken any other action which would result in a
violation of Section 5 of the Securities Act, and (g) we will not sell, transfer
or otherwise dispose of the Certificate unless (1) such sale, transfer
D-1-1
or other disposition is made pursuant to an effective registration statement
under the Securities Act or is exempt from such registration requirements, and
if requested, we will at our expense provide an opinion of counsel satisfactory
to the addressees of this Letter that such sale, transfer or other disposition
may be made pursuant to an exemption from the Securities Act, (2) the purchaser
or transferee of such Certificate has executed and delivered to you a
certificate to substantially the same effect as this certificate and (3) the
purchaser or transferee has otherwise complied with any conditions for transfer
set forth in the Trust Agreement relating to the Certificate.
Very truly yours,
_______________________________
[Print Name of Transferee]
By:____________________________
Authorized Officer
D-1-2
EXHIBIT D-2
[FORM OF TRANSFEREE LETTER (RULE 144A)]
[Date]
Student Loan Marketing Association
as Administrator
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Chase Manhattan Bank USA, National Association
as Eligible Lender Trustee and Excess Distribution Certificate Registrar
Christiana Center/OPS4
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: SLM Student Loan Trust 2003-8,
Excess Distribution Certificate (the "Certificate")
Ladies and Gentlemen:
In connection with our acquisition of the above Certificate, we certify
that (a) we understand that the Certificate is not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Securities Act and any such laws, (b)
we have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificate, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificate and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificate, (d) we are not acquiring the Certificate
for, on behalf of or with the assets of, an employee benefit plan or other
retirement arrangement (a "Plan") which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and/or Section
4975 of the Internal Revenue Code of 1986, as amended (the "Code"), (e) we have
not, nor has anyone acting on our behalf offered, transferred, pledged, sold or
otherwise disposed of the Certificate, any interest in the Certificate or any
other similar security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Certificate, any interest in the Certificate
or any other similar security from, or otherwise approached or negotiated with
respect to the Certificate, any interest in the Certificate or any other similar
security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other action,
that would constitute a distribution of the Certificate under the Securities Act
or that would render the disposition of the Certificate a violation of Section 5
of the Securities Act or require registration pursuant thereto, nor will act,
nor has authorized or will authorize any person to act, in such manner with
respect to the Certificate, (f) we are a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act ("Rule 144A") and have
completed either of the forms of certification to
D-2-1
that effect attached hereto as Annex 1 or Annex 2. We are aware that the sale to
us is being made in reliance on Rule 144A. We are acquiring the Certificate for
our own account or for resale pursuant to Rule 144A and further understand that
the Certificate may be resold, pledged or transferred only (1) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
Very truly yours,
__________________________________
[Print Name of Transferee]
By:_______________________________
Authorized Officer
D-2-2
ANNEX 1
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Letter to which this certification
relates with respect to the Certificate described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive
officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because (i) the Buyer owned and/or invested on a
discretionary basis $____________(1) in securities (except for
the excluded securities referred to below) as of the end of
the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A and (ii) the Buyer
satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other
than a bank, savings and loan association or similar
institution), Massachusetts or similar business
trust, partnership, or charitable organization
described in Section 501 (c) (3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State,
territory or the District of Columbia, the business
of which is substantially confined to banking and is
supervised by the State or territorial banking
commission or similar official or is a foreign bank
or equivalent institution, and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which
is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a
State or Federal authority having supervision over
any such institutions or is a foreign savings and
loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
--------
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
Annex 1-1
___ Broker-dealer. The Buyer is a dealer registered
pursuant to Section 15 of the Securities Exchange Act
of 1934.
___ Insurance Company. The Buyer is an insurance company
whose primary and predominant business activity is
the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is
subject to supervision by the insurance commissioner
or a similar official or agency of a State, territory
or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established
and maintained by a State, its political
subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit
of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan
within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
___ Investment Advisor. The Buyer is an investment
advisor registered under the Investment Advisors Act
of 1940.
___ Small Business Investment Company. The Buyer is a
small business investment company licensed by the
U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of
1958.
___ Business Development Company. The Buyer is a business
development company as defined in Section 202(a)(22)
of the Investment Advisors Act of 1940.
___ Qualified Institutional Buyers. The Buyer owned
and/or invested on a discretionary basis less than
$100,000,000, but it is an entity in which all of the
equity owners are qualified institutional buyers.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii)
securities that are part of an unsold allotment to or
subscription by the Buyer, if the Buyer is a dealer, (iii)
securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and
certificates of deposit, (v) loan participations, (vi)
repurchase agreements, (vii) securities owned but subject to a
repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer,
the Buyer used the cost of such securities to the Buyer and
did not include any of the securities referred to in the
preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis
of their market value, and (ii) no current information with
respect to the cost of those securities has been published. If
clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned
by subsidiaries of the Buyer, but only if such
Annex 1-2
subsidiaries are consolidated with the Buyer in its financial
statements prepared in accordance with generally accepted
accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However,
such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise
and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to
the Certificate are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer
may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this
certification is made of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificate will constitute a reaffirmation of
this certification as of the date of such purchase. In
addition, if the Buyer is a bank or savings and loan is
provided above, the Buyer agrees that it will furnish to such
parties updated annual financial statements promptly after
they become available.
_____________________________________
[Print Name of Transferee]
By:_________________________________
Name:
Title:
Date:______________________
Annex 1-3
ANNEX 2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Letter to which this certification
relates with respect to the Certificate described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if
the Buyer is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of
the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A
because (i) the Buyer is an investment company registered
under the Investment Company Act of 1940, as amended and (ii)
as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in
securities (other than the excluded securities referred to
below) as of the end of the Buyer's most recent fiscal year.
For purposes of determining the amount of securities owned by
the Buyer or the Buyer's Family of Investment Companies, the
cost of such securities was used, except (i) where the Buyer
or the Buyer's Family of Investment Companies reports its
securities holdings in its financial statements on the basis
of their market value, and (ii) no current information with
respect to the cost of those securities has been published. If
clause (ii) in the preceding sentence applies, the securities
may be valued at market.
___ The Buyer owned $______________ in securities (other
than the excluded securities referred to below) as of
the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule
144A).
___ The Buyer is part of a Family of Investment Companies
which owned in the aggregate $_____________ in
securities (other than the excluded securities
referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series
thereof) that have the same investment adviser or investment
advisers that are affiliated (by virtue of being majority
owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the
other).
Annex 2
4. The tern "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or
are part of the Buyer's Family of Investment Companies, (ii)
securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a
repurchase agreement and (vii) currency, interest rate and
commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Letter to which
this certification relates are relying and will continue to
rely on the statements made herein because one or more sales
to the Buyer will be in reliance on Rule 144A. In addition,
the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificate, the undersigned
will notify the parties listed in the Rule 144A Transferee
Letter to which this certification relates of any changes in
the information and conclusions herein. Until such notice is
given, the Buyer's purchase of the Certificate will constitute
a reaffirmation of this certification by the undersigned as of
the date of such purchase.
__________________________________
Print Name of Buyer or Adviser
By:_______________________________
Name:
Title:
[IF AN ADVISER:]
__________________________________
Print Name of Buyer
Date:______________________
Annex 2