<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported): July 31, 1996
-------------
SLM FUNDING CORPORATION
-----------------------
formerly known as SALLIE MAE FUNDING CORPORATION
(Exact name of registrant as specified in its charter)
(Originator of the Sallie Mae Student Loan Trust 1995-1,
the Sallie Mae Student Loan Trust 1996-1,
the SLM Student Loan Trust 1996-2, and
the SLM Student Loan Trust 1996-3)
Delaware 33-95474/333-2502 23-2815650
- -------- ----------------- ----------
(State or other (Commission File (I.R.S. employer
Jurisdiction of Numbers) Identification No.)
Incorporation)
777 Twin Creek Drive
Killeen, Texas 76543
--------------------
(Address of principal executive offices)
Registrant's telephone number, including area code: (817) 554-4500
Page 1 of 7
Exhibit Index appears on Page 6
<PAGE> 2
Item 5 Other Events
On June 26, 1996, the following agreements were executed and
delivered by the respective parties thereto: (a) the Pricing Agreement
relating to the Student Loan-Backed Notes, dated June 26, 1996, by and among
SLM Funding Corporation ("SLM Funding"), the Student Loan Marketing
Association ("Sallie Mae") and Goldman, Sachs & Co. (the "Underwriter"), on
behalf of each of the underwriters named in Schedule 1 thereto; (b) the
Pricing Agreement relating to the Student Loan-Backed Certificates, dated June
26, 1996, by and among SLM Funding, Sallie Mae and the Underwriter, on behalf
of each of the underwriters named in Schedule 1 thereto; (c) the Underwriting
Agreement relating to the Student Loan-Backed Notes, dated June 26, 1996, by
and among SLM Funding, Sallie Mae and the Underwriter, on behalf of each of
the underwriters named in Schedule 1 thereto; and (d) the Underwriting
Agreement relating to the Student Loan-Backed Certificates, dated June 26,
1996, by and among SLM Funding, Sallie Mae and the Underwriter, on behalf of
each of the underwriters named in Schedule 1 thereto.
On July 1 or July 9, 1996, the following agreements were
executed and delivered by the respective parties thereto: (a) the Purchase
Agreement, dated as of July 9, 1996, by and among SLM Funding, The Chase
Manhattan Bank (USA), not in its individual capacity but solely as interim
eligible lender trustee (the "Interim Eligible Lender Trustee"), and Sallie
Mae; (b) the Trust Agreement, dated as of July 1, 1996, by and between Sallie
Mae Funding and The Chase Manhattan Bank (USA), not in its individual capacity
but solely as eligible lender trustee (the "Eligible Lender Trustee"); (c) the
Indenture, dated as of July 1, 1996 (the "Indenture"), by and among the Sallie
Mae Student Loan Trust 1996-3 (the "Trust"), the Eligible Lender Trustee, and
Bankers Trust Company, not in its individual capacity but solely as trustee
under the Indenture (the "Indenture Trustee"); (d) the Sale Agreement, dated
as of July 9, 1996, by and among SLM Funding, the Interim Eligible Lender
Trustee, and the Eligible Lender Trustee and the Trust; (e) the Administration
Agreement, dated as of July 9, 1996, by and among the Trust, Sallie Mae, the
Eligible Lender Trustee, Sallie Mae Servicing Corporation (the "Servicer"),
SLM Funding and the Indenture Trustee; and (f) the Servicing Agreement, dated
as of July 9, 1996 by and among the Servicer, Sallie Mae, the Trust, the
Eligible Lender Trustee and the Indenture Trustee.
On July 25, 1996, the Sallie Mae Student Loan Trust 1995-1 made its
third, the Sallie Mae Student Loan Trust 1996-1 made its second, and the SLM
Student Loan Trust 1996-2 made its first, regular quarterly distribution of
funds to holders of their respective Floating Rate Student Loan-Backed Notes
and distributed their respective Quarterly Servicing Reports, filed herewith
as an Exhibit to this Form 8-K, to Certificateholders and Noteholders of
record.
The Registrant is hereby filing the Quarterly Servicing Reports
reflecting each Trust's activities July 25, 1996.
Page 2 of 7
Exhibit Index appears on Page 6
<PAGE> 3
Item 7. Financial Statements, Pro Forma Financial Statements and Exhibits
(c) Exhibits
1.1 Pricing Agreement relating to the Student Loan-Backed Notes,
dated June 26, 1996, by and among SLM Funding, Sallie Mae
and the Underwriter, on behalf of each of the underwriters
named in Schedule 1 thereto.
1.2 Pricing Agreement relating to the Student Loan-Backed
Certificates, dated June 26, 1996, by and among SLM Funding,
Sallie Mae and the Underwriter, on behalf of each of the
underwriters named in Schedule 1 thereto.
1.3 Underwriting Agreement relating to the Student Loan-Backed
Notes, dated June 26, 1996, by and among SLM Funding, Sallie
Mae and the Underwriter, on behalf of each of the
underwriters named in Schedule 1 thereto.
1.4 Underwriting Agreement relating to the Student Loan-Backed
Certificates, dated June 26, 1996, by and among SLM Funding,
Sallie Mae and the Underwriter, on behalf of each of the
underwriters named in Schedule 1 thereto.
4.1 Trust Agreement, dated as of July 1, 1996, by and between
SLM Funding and the Eligible Lender Trustee.
4.2 Indenture, dated as of July 1, 1996, by and among the Trust,
the Eligible Lender Trustee and the Indenture Trustee.
19.1 Quarterly Servicing Reports
99.1 Purchase Agreement, dated as of July 9, 1996, by and among
SLM Funding, the Interim Eligible Lender Trustee and Sallie
Mae.
99.2 Sale Agreement, dated as of July 9, 1996, by and among SLM
Funding, the Interim Eligible Lender Trustee, the Eligible
Lender Trustee and the Trust.
99.3 Administration Agreement, dated as of July 9, 1996, by and
among the Trust, Sallie Mae, the Eligible Lender Trustee,
the Servicer, SLM Funding and the Indenture Trustee.
Page 3 of 7
Exhibit Index appears on Page 6
<PAGE> 4
99.4 Servicing Agreement, dated as of July 9, 1996, by and among
the Servicer, Sallie Mae, the Trust, the Eligible Lender
Trustee and the Indenture Trustee.
Page 4 of 7
Exhibit Index appears on Page 6
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
Dated: July 25, 1996
SALLIE MAE FUNDING
CORPORATION
By: /s/ Robert R. Levine
--------------------------------
Name: Robert R. Levine
Title: Chief Financial Officer
and Director
Page 5 of 7
Exhibit Index appears on Page 6
<PAGE> 6
INDEX TO EXHIBIT
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------ ------- ----
1.1 Pricing Agreement
relating to Student-Loan
Backed Notes, dated June
26, 1996, by and among
SLM Funding, Sallie Mae
and the Underwriter, on
behalf of each of the
underwriters named on
Schedule 1 thereto.
1.2 Pricing Agreement
relating to Student-Loan
Backed Certificates,
dated June 26, 1996, by
and among SLM Funding,
Sallie Mae and the
Underwriter, on behalf of
each of the underwriters
named on Schedule 1
thereto.
1.3 Underwriting Agreement
relating to Student-Loan
Backed Notes, dated June
26, 1996, by and among
SLM Funding, Sallie Mae
and the Underwriter, on
behalf of each of the
underwriters named on
Schedule 1 thereto.
1.4 Underwriting Agreement
relating to Student-Loan
Backed Certificates,
dated June 26, 1996, by
and among SLM Funding,
Sallie Mae and the
Underwriter, on behalf of
each of the underwriters
named on Schedule 1
thereto.
Page 6 of 7
<PAGE> 7
4.1 Trust Agreement, dated as
of July 1, 1996, by and
between SLM Funding and
the Eligible Lender
Trustee.
4.2 Indenture, dated as of
July 1, 1996, by and
among the Trust, the
Eligible Lender Trustee
and the Indenture
Trustee.
19.1 Quarterly Servicing
Reports.
99.1 Purchase Agreement, dated
as of July 9, 1996, by
and among SLM Funding,
the Interim Eligible
Lender Trustee and Sallie
Mae.
99.2 Sale Agreement, dated as
of July 9, 1996, by and
among SLM Funding, the
Interim Eligible Lender
Trustee, the Eligible
Lender Trustee and the
Trust.
99.3 Administration Agreement,
dated as of July 9, 1996,
by and among the Trust,
Sallie Mae, the Eligible
Lender Trustee, the
Servicer, SLM Funding and
the Indenture Trustee.
99.4 Servicing Agreement,
dated as of July 9, 1996,
by and among the
Servicer, Sallie Mae, the
Trust, the Eligible
Lender Trustee and the
Indenture Trustee.
Page 7 of 7
<PAGE> 1
EXHIBIT 1.1
PRICING AGREEMENT
GOLDMAN, SACHS & CO.
85 BROAD STREET
NEW YORK, NEW YORK 10004
June 26, 1996
Ladies and Gentlemen:
SLM Funding Corporation, a Delaware corporation (the "Company"), and
the Student Loan Marketing Association, a corporation formed under the laws of
the United States ("Sallie Mae"), propose, subject to the terms and conditions
stated herein and in the Underwriting Agreement, dated June 26, 1996 (the
"Underwriting Agreement"), between the Company and Sallie Mae, on the one hand,
and Goldman, Sachs & Co., on the other hand, that the Company will cause the
trust (the "Trust") formed pursuant to the Trust Agreement dated as of June 1,
1996 between the Company and The Chase Manhattan Bank (USA), as trustee (the
"Eligible Lender Trustee"), to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Student Loan-Backed Notes (the
"Notes") specified in Schedule II hereto (the "Designated Securities"). The
Notes will be issued and secured pursuant to the Indenture, dated as of June 1,
1996 (the "Indenture"), between the Trust and Bankers Trust Company, as trustee
(the "Indenture Trustee").
Each of the provisions of the Underwriting Agreement is incorporated
herein by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement,
except that each representation and warranty which refers to the Prospectus in
Section 2 of the Underwriting Agreement shall be deemed to be a representation
or warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Pricing Agreement in relation to the Prospectus as amended or
supplemented relating to the Designated Securities which are the subject of
this Pricing Agreement. Each reference to the Representatives herein and in
the provisions of the Underwriting Agreement so incorporated by reference shall
be deemed to refer to you. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the Representatives
and on behalf of each of the Underwriters of the Designated Securities pursuant
to Section 12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
<PAGE> 2
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
cause the Trust to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto, less the principal
amount of Designated Securities covered by Delayed Delivery Contracts, if any,
as may be specified in Schedule II.
During the period beginning from the date of this Pricing Agreement for
the Designated Securities and continuing to and including July 9, 1996, the
Company agrees, and Sallie Mae agrees that it will cause the Company, not to,
and not to permit any affiliated entity to, offer, sell, contract to sell or
otherwise dispose of, any securities (other than the Designated Securities)
collateralized by, or any securities (other than the related Certificates)
evidencing an ownership in, Student Loans, without the prior written consent of
the Representatives.
Each Underwriter represents and agrees that (a) it has not offered or
sold and will not offer or sell any Notes or Certificates to persons in the
United Kingdom prior to the expiration of the period of six months from the
issue date of the Notes and the Certificates except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (b) it has complied and will comply with
all applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Notes and the Certificates in, from or
otherwise involving the United Kingdom; and (c) it has only issued or passed on
and will only issue or pass on in the United Kingdom any document received by
it in connection with the issuance of the Notes and the Certificates to a
person who is of a kind described in article 11(3) of the Financial Services
Act 1986 (Investment Advertisements) (Exemptions) Order 1995 or is a person to
whom such document may otherwise lawfully be issued or passed on.
If the foregoing is in accordance with your understanding, please sign
and return to us 10 counterparts hereof, and upon acceptance hereof by you, on
behalf of each of
2
<PAGE> 3
the Underwriters, this letter and such acceptance hereof, including the
provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company and Sallie Mae. It is understood that your acceptance of this letter
on behalf of each of the Underwriters is or will be pursuant to the authority
set forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company and Sallie Mae for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
SLM FUNDING CORPORATION
By: /s/ Denise B. McGlone
---------------------
Name:
Title:
STUDENT LOAN MARKETING ASSOCIATION
By: /s/ Robert R. Levine
---------------------
Name:
Title:
3
<PAGE> 4
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
-------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
4
<PAGE> 5
SCHEDULE I
PRINCIPAL AMOUNT OF DESIGNATED SECURITIES TO BE PURCHASED
<TABLE>
<CAPTION>
UNDERWRITER CLASS A-1 CLASS A-2
<S> <C> <C>
Goldman, Sachs & Co. $150,200,000 $92,200,000
Bear, Stearns & Co. Inc. $150,160,000 $92,160,000
CS First Boston
Corporation $150,160,000 $92,160,000
Deutsche Morgan Grenfell/C.J.
Lawrence Inc. $150,160,000 $92,160,000
J.P. Morgan Securities Inc. $150,160,000 $92,160,000
Lehman Brothers Inc. $150,160,000 $92,160,000
Total $901,000,000 $553,000,000
</TABLE>
<PAGE> 6
SCHEDULE II
TITLE OF EACH CLASS OF DESIGNATED SECURITIES:
Floating Rate Class A-1 Student Loan-Backed Notes
(for purposes of this Schedule II, "Class A-1")
Floating Rate Class A-2 Student Loan-Backed Notes
(for purposes of this Schedule II, "Class A-2")
AGGREGATE PRINCIPAL AMOUNT OF EACH CLASS:
Class A-1: $901,000,000
Class A-2: $553,000,000
PRICE TO PUBLIC OF EACH CLASS:
Class A-1: 100.00%
Class A-2: 100.00%
PURCHASE PRICE BY UNDERWRITERS OF EACH CLASS:
Class A-1: %99.775
Class A-2: %99.730
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE: Same Day Funds
INDENTURE: Indenture, dated as of June 1, 1996, among Bankers Trust
Company, as Indenture Trustee, the SLM Student Loan Trust 1996-3, and The Chase
Manhattan Bank (USA), as Eligible Lender Trustee.
MATURITY:
Class A-1: October 2004 Distribution Date
Class A-2: October 2009 Distribution Date
INTEREST RATE:
Class A-1: T-Bill Rate plus 0.49%
Class A-2: T-Bill Rate plus 0.68%
FORM OF DESIGNATED SECURITIES: Book-Entry (DTC)
TIME OF DELIVERY: July 9, 1996
<PAGE> 7
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
Student Loan Marketing Association
1050 Thomas Jefferson Street, NW
Washington, DC 20007-3781
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives: Goldman, Sachs & Co.
Address for Notices, etc.: Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attn: Thomas Lasersohn
-3-
<PAGE> 1
EXHIBIT 1.2
PRICING AGREEMENT
GOLDMAN, SACHS & CO.
85 BROAD STREET
NEW YORK, NEW YORK 10004
June 26, 1996
Ladies and Gentlemen:
SLM Funding Corporation, a Delaware corporation (the
"Company"), and the Student Loan Marketing Association, a corporation formed
under the laws of the United States ("Sallie Mae"), propose, subject to the
terms and conditions stated herein and in the Underwriting Agreement, dated
June 26, 1996 (the "Underwriting Agreement"), between the Company and Sallie
Mae, on the one hand, and Goldman, Sachs & Co., on the other hand, that the
Company will cause the trust (the "Trust") formed pursuant to the Trust
Agreement dated as of June 1, 1996 between the Company and The Chase Mahattan
Bank (USA), as trustee (the "Eligible Lender Trustee"), to issue and sell to
the Underwriters named in Schedule I hereto (the "Underwriters") the Student
Loan-Backed Certificates (the "Certificates") specified in Schedule II hereto
(the "Designated Securities"). The Certificates will be issued pursuant to the
Trust Agreement.
Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives
herein and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement and the address
of the Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
<PAGE> 2
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company agrees
to cause the Trust to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the Trust,
at the time and place and at the purchase price to the Underwriters set forth
in Schedule II hereto, the amount of Designated Securities set forth opposite
the name of such Underwriter in Schedule I hereto, less the amount of
Designated Securities covered by Delayed Delivery Contracts, if any, as may be
specified in Schedule II.
During the period beginning from the date of this Pricing
Agreement for the Designated Securities and continuing to and including July 9,
1996, the Company agrees, and Sallie Mae agrees that it will cause the Company,
not to, and not to permit any affiliated entity to, offer, sell, contract to
sell or otherwise dispose of, any securities (other than the Designated
Securities) evidencing an ownership in, or any securities (other than the
related Notes) collateralized by, Student Loans, without the prior written
consent of the Representatives.
Each Underwriter represents and agrees that (a) it has not
offered or sold and will not offer or sell any Notes or Certificates to persons
in the United Kingdom prior to the expiration of the period of six months from
the issue date of the Notes and the Certificates except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (b) it has complied and will comply with
all applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Notes and the Certificates in, from or
otherwise involving the United Kingdom; and (c) it has only issued or passed on
and will only issue or pass on in the United Kingdom any document received by
it in connection with the issuance of the Notes and the Certificates to a
person who is of a kind described in article 11(3) of the Financial Services
Act 1986 (Investment Advertisements) (Exemptions) Order 1995 or is a person to
whom such document may otherwise lawfully be issued or passed on.
If the foregoing is in accordance with your understanding,
please sign and return to us 10 counterparts hereof, and upon acceptance hereof
by you, on behalf of each of
2
<PAGE> 3
the Underwriters, this letter and such acceptance hereof, including the
provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company and Sallie Mae. It is understood that your acceptance of this letter
on behalf of each of the Underwriters is or will be pursuant to the authority
set forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company and Sallie Mae for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
SLM FUNDING CORPORATION
By: /s/ Denise B. McGlone
----------------------
Name:
Title:
STUDENT LOAN MARKETING ASSOCIATION
By: /s/ Robert R. Levine
---------------------
Name:
Title:
3
<PAGE> 4
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
-------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
4
<PAGE> 5
SCHEDULE I
AMOUNT OF DESIGNATED SECURITIES TO BE PURCHASED
<TABLE>
<CAPTION>
UNDERWRITER CERTIFICATES
<S> <C>
Goldman, Sachs & Co. $8,795,000
Bear, Stearns & Co. Inc. $8,791,000
CS First Boston $8,791,000
Corporation
Deutsche Morgan Grenfell/C.J. Lawrence $8,791,000
Inc.
J.P. Morgan Securities Inc. $8,791,000
Lehman Brothers Inc. $8,791,000
TOTAL $52,750,000
</TABLE>
<PAGE> 6
SCHEDULE II
TITLE OF EACH CLASS OF DESIGNATED SECURITIES:
Floating Rate Student Loan-Backed Certificates
AGGREGATE AMOUNT OF DESIGNATED SECURITIES: $52,750,000
PRICE TO PUBLIC PER CERTIFICATE: 100.00%
PURCHASE PRICE BY UNDERWRITERS PER CERTIFICATE:
$527,500 of Floating Rate Student Loan-Backed Certificates: 100.00%
$52,222,500 of Floating Rate Student Loan-Backed Certificates: 99.528%
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE: Same Day Funds
TRUST AGREEMENT: Trust Agreement, dated June 1, 1996, among SLM
Funding Corporation, as Seller, and The Chase Manhattan Bank (USA), as Eligible
Lender Trustee
MATURITY: October 2011 Distribution Date
RETURN RATE: T-Bill Rate plus 0.95%
FORM OF DESIGNATED SECURITIES:
<TABLE>
<S> <C>
$527,500 of Floating Rate Student Loan-Backed Certificates: Definitive Certificate
$52,222,500 of Floating Rate Student Loan-Backed Certificates: Book-Entry (DTC)
</TABLE>
TIME OF DELIVERY: July 9, 1996
<PAGE> 7
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
Student Loan Marketing Association
1050 Thomas Jefferson Street, NW
Washington, DC 20007-3781
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives: Goldman, Sachs & Co.
Address for Notices, etc.: Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attn: Thomas Lasersohn
-2-
<PAGE> 1
EXHIBIT 1.3
SLM FUNDING CORPORATION
STUDENT LOAN-BACKED NOTES
-----------------
UNDERWRITING AGREEMENT
June 26, 1996
GOLDMAN, SACHS & CO.
85 BROAD STREET
NEW YORK, NEW YORK 10004
Ladies and Gentlemen:
From time to time the Student Loan Marketing Association ("Sallie Mae"), a
corporation formed under the laws of the United States, and SLM Funding
Corporation, a Delaware corporation and a wholly-owned subsidiary of Sallie Mae
(the "Company"), propose to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine. Subject to the terms and
conditions stated herein and therein, the Company proposes to cause the Trust
specified in the applicable Pricing Agreement to issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of such Trust's Student Loan-Backed Notes
(the "Notes") specified in Schedule II to such Pricing Agreement (with respect
to such Pricing Agreement, the "Designated Securities"), less the principal
amount of Designated Securities covered by Delayed Delivery Contracts, if any,
as provided in Section 3 hereof and as may be specified in Schedule II to such
Pricing Agreement (with respect to such Pricing Agreement, any Designated
Securities to be covered by Delayed Delivery Contracts are herein sometimes
referred to as "Contract Securities" and the Designated Securities to be
purchased by the Underwriters (after giving effect to the deduction, if any,
for Contract Securities) are herein sometimes referred to as "Underwriters'
Securities").
The Securities may be sold from time to time in one or more Series. Each
Series of Securities, which will include one or more classes of Notes and one
or more classes of Student Loan-Backed Certificates (the "Certificates," and,
together with the Notes, the "Securities") will be issued by a Trust to be
formed with respect to such Series (each, a "Trust"). Each Trust will be
formed pursuant to a trust agreement (a "Trust Agreement") to be entered into
between the Company and the Eligible Lender Trustee specified in the related
Pricing Agreement (the "Eligible Lender Trustee"). The Notes of each Series
will be issued and secured pursuant to an indenture (an "Indenture") between
the Trust and the Indenture Trustee specified in the related Pricing Agreement
(the "Indenture Trustee"). The Certificates of a Series will be issued
pursuant to the related Trust Agreement and will represent fractional undivided
interests in the Trust created thereby. The property of each Trust will
include, among other things, educational student loans to students and/or
parents of dependent students ("Student Loans").
With respect to each Trust, (i) the Company will acquire the related
Student Loans from Sallie Mae pursuant to a Purchase Agreement and (ii) the
Company will sell the related Student Loans to such Trust pursuant to a Sale
Agreement, with the related Eligible Lender
<PAGE> 2
Trustee holding legal title thereto. With respect to each Series, Sallie Mae
Servicing Corporation. as servicer (the "Servicer") will enter into a servicing
agreement (a "Servicing Agreement") with the Trust, the Administrator, the
Eligible Lender Trustee and the Indenture Trustee with respect to the related
Student Loans. Sallie Mae, as administrator (in such capacity, the
"Administrator"), will enter into an Administration Agreement with the Eligible
Lender Trustee, the Servicer, the Company, the Trust and the Indenture Trustee
with respect to the related Student Loans.
The terms and conditions of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the related Indenture.
Capitalized terms used but not defined herein or in any Pricing Agreement
shall have the meanings ascribed thereto in the related Indenture.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial
public offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and whether any of such Designated Securities
shall be covered by Delayed Delivery Contracts (as defined in Section 3 hereof)
and shall set forth the date, time and manner of delivery of such Designated
Securities and payment therefor. The Pricing Agreement shall also specify (to
the extent not set forth in the Indenture and the registration statement and
prospectus with respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company and Sallie Mae represent and warrant to, and agree with,
each of the Underwriters as follows (it being agreed and understood that the
statements set forth in clauses (d), (e), (g), (h), (j), (k), (m), (n) and (o)
of this Section 2 with respect to Sallie Mae or the Servicer constitute
representations, warranties and agreements of Sallie Mae only and not of the
Company):
(a) A registration statement on Form S-3 (File No. 333-2502),
including a form of prospectus, in respect of the Securities has been
filed with the Securities and
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Exchange Commission (the "Commission"); such registration statement and
any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form; no other document with respect
to such registration statement or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the
Commission (other than prospectuses filed pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Securities Act of 1933,
as amended (the "Act"), each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose
has been initiated or, to the best of Sallie Mae's or the Company's
knowledge, threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the Commission
pursuant to Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus;" the various parts of such registration
statement, including all exhibits thereto and the documents incorporated
by reference in the prospectus contained in the registration statement at
the time such part of the registration statement became effective but
excluding Form T-1, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively
called the "Registration Statement"; the prospectus relating to the
Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of
this Agreement, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference to
any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Sections 13(a)
or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement;
and any reference to the Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or supplemented in relation
to the applicable Designated Securities in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act, the
Exchange Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
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<PAGE> 4
required to be stated therein or necessary to make the statements therein
not misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act, the Exchange Act and the Trust Indenture Act,
as applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act, as applicable, and the rules and
regulations of the Commission thereunder and do not and will not, as of
the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Designated Securities;
(d) Neither the Company nor Sallie Mae or any of its subsidiaries
has sustained since the date of the financial statements included in
Sallie Mae's most recently published Information Statement any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than
as set forth or contemplated in such Information Statement; and, since
such date, there has not been any material adverse change in the capital
stock or long-term debt of the Company or Sallie Mae or any of its
subsidiaries or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or results
of operations of the Company or Sallie Mae or any of its subsidiaries or
the transactions contemplated hereby, otherwise than as set forth or
contemplated in such Information Statement;
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the state of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and to consummate the
transactions contemplated therein and herein, and is a wholly-owned
subsidiary of Sallie Mae. Sallie Mae has been duly organized and is
validly existing under the laws of the United States, with power and
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<PAGE> 5
authority (corporate and otherwise) to own its properties and conduct its
business as described in the Prospectus and to consummate the transactions
contemplated therein and herein. The Servicer has been duly incorporated
and is validly existing as a corporation in good standing under the laws
of the State of Delaware, with power and authority (corporate and other)
to own its properties and conduct its business as described in the
Prospectus and to consummate the transactions contemplated therein and
herein, and is a wholly-owned subsidiary of Sallie Mae.
(f) All of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable and are owned beneficially and of record by Sallie Mae;
(g) This Agreement has been, and each Pricing Agreement with
respect to the Designated Securities upon its execution and delivery by
the Company and Sallie Mae will have been, duly authorized, executed and
delivered by the Company and Sallie Mae. The Securities have been duly
authorized, and, when Designated Securities are issued and delivered
pursuant to this Agreement and the Pricing Agreement with respect to such
Designated Securities, and, in the case of any Contract Securities,
pursuant to Delayed Delivery Contracts with respect to such Contract
Securities, such Designated Securities and Contract Securities will have
been duly executed, authenticated, issued and delivered. The Designated
Securities will constitute valid and legally binding obligations of the
related Trust entitled to the benefits provided by the Indenture, which
will be substantially in the form filed as an exhibit to the Registration
Statement. The Indenture has been duly authorized and duly qualified
under the Trust Indenture Act. The related Certificates are intended to
represent undivided ownership interests in the Trust created by the Trust
Agreement, which will be substantially in the form filed as an exhibit to
the Registration Statement, and will be entitled to the benefits provided
by the Trust Agreement. At the Time of Delivery (as defined in Section 4
hereof) for the Designated Securities, the Indenture and the Trust
Agreement will each constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles. The Indenture and Trust Agreement conform, and the
Designated Securities and the related Certificates will conform, to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to the Designated Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, the
Trust Agreement, each of the Delayed Delivery Contracts, this Agreement
and any Pricing Agreement, and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or Sallie Mae is a party or
by which the Company or Sallie Mae is bound or to which any of the
property or assets of the Company or Sallie Mae is subject, nor will such
action result in any violation of the provisions of the Company's
Certificate of Incorporation or By-laws, Sallie Mae's charter, enabling
legislation or By-laws, or any statute or any order, rule or regulation of
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<PAGE> 6
any court or governmental agency or body having jurisdiction over the
Company or Sallie Mae or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company or Sallie
Mae of the transactions contemplated by this Agreement or any Pricing
Agreement or the Indenture or any Delayed Delivery Contract, except such
as have been, or will have been prior to the Time of Delivery, obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters;
(i) The statements set forth in the Prospectus under the captions
"Description of the Notes" and "Description of the Certificates" and set
forth in the Prospectus Supplement under the caption "Description of the
Securities," insofar as they purport to constitute a summary of the terms
of the Notes and the Certificates, are accurate, complete and fair;
(j) Sallie Mae is not in violation of its charter as set forth in
its enabling legislation or By-laws, and the Company is not in violation
of its Certificate of Incorporation or By-laws, and neither Sallie Mae nor
the Company is in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties
may be bound;
(k) Other than as set forth in the Prospectus or in Sallie Mae's
most recently published Information Statement, there are no legal or
governmental proceedings pending to which the Company or Sallie Mae or any
of its subsidiaries is a party or of which any property of the Company or
Sallie Mae or any of its subsidiaries is the subject which, if determined
adversely to the Company or Sallie Mae or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, shareholders' equity or
results of operations of the Company or Sallie Mae or any of its
subsidiaries or on the consummation of the transactions contemplated
hereby; and, to the best of the Company's and Sallie Mae's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(l) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(m) Neither the Company, Sallie Mae nor any of their affiliates
does business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes;
(n) Ernst & Young LLP, who have certified certain financial
statements of Sallie Mae, are independent public accountants as required
by the Act and the rules and regulations of the Commission thereunder;
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<PAGE> 7
(o) At the Time of Delivery of the Designated Securities, Sallie
Mae's representations and warranties in the related Purchase Agreement and
Administration Agreement, the Company's representations and warranties in
the related Sale Agreement and Trust Agreement and the Servicer's
representations and warranties in the Servicing Agreement will be true and
correct in all material respects; and
(p) In the event any of the Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts has
been duly authorized by the Company and Sallie Mae and, when executed and
delivered by the Company and the purchaser named therein, will constitute
a valid and legally binding agreement of the Company enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and any Delayed Delivery Contracts conform to the description
thereof in the Prospectus.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of the Underwriters' Securities, the several Underwriters propose to offer such
Underwriters' Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
The Company may specify in Schedule II to the Pricing Agreement applicable
to any Designated Securities that the Underwriters are authorized to solicit
offers to purchase Designated Securities from the Company pursuant to delayed
delivery contracts (herein called "Delayed Delivery Contracts"), substantially
in the form of Annex III attached hereto but with such changes therein as the
Representatives and the Company may authorize or approve. If so specified, the
Underwriters will endeavor to make such arrangements, and as compensation
therefor the Company will pay to the Representatives, for the accounts of the
Underwriters, at the Time of Delivery, such commission, if any, as may be set
forth in such Pricing Agreement. Delayed Delivery Contracts, if any, are to be
with investors of the types described in the Prospectus and subject to other
conditions therein set forth. The Underwriters will not have any
responsibility with respect to the validity or performance of any Delayed
Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Designated Securities to be purchased by each Underwriter
as set forth in Schedule I to the Pricing Agreement applicable to such
Designated Securities shall be, in each case, the principal amount of Contract
Securities which the Company has been advised by the Representatives have been
attributed to such Underwriter, provided that, if the Company has not been so
advised, the amount of Contract Securities to be so deducted shall be, in each
case, that proportion of Contract Securities which the principal amount of
Designated Securities to be purchased by such Underwriter under such Pricing
Agreement bears to the total principal amount of the Designated Securities
(rounded as the Representatives may determine). The total principal amount of
Underwriters' Securities to be purchased by all the Underwriters pursuant to
such Pricing Agreement shall be the total principal amount of Designated
Securities set forth in Schedule I to such Pricing Agreement less the principal
amount of the Contract Securities. The Company will deliver to the
Representatives not later than 3:30 p.m., New York City time, on the third
business day preceding the Time of Delivery specified in the applicable Pricing
Agreement (or such other time and date as the
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<PAGE> 8
Representatives and the Company may agree upon in writing), a written notice
setting forth the principal amount of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such
Pricing Agreement, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer or
by certified or official bank check or checks, payable to the order of the
Company in the funds specified in such Pricing Agreement, all in the manner and
at the place and time and date specified in such Pricing Agreement or at such
other place and time and date as the Representatives and the Company may agree
upon in writing, such time and date being herein called the "Time of Delivery"
for such Securities.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of the party designated in the
Pricing Agreement relating to such Underwriters' Securities in the amount of
any compensation payable by the Company to the Underwriters in respect of any
Delayed Delivery Contracts as provided in Section 3 hereof and the Pricing
Agreement relating to such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities, and Sallie Mae agrees with such Underwriters that it will cause the
Company:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating
to such Designated Securities and prior to the Time of Delivery for such
Designated Securities which shall be disapproved by the Representatives
for such Designated Securities promptly after reasonable notice thereof;
to advise the Representatives promptly of any such amendment or supplement
after such Time of Delivery and furnish the Representatives with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of such Designated Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission,
of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the
Designated Securities, of the suspension of the qualification of such
Designated Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of
any request by the
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Commission for the amending or supplementing of the Registration Statement
or Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Designated Securities
or suspending any such qualification, to promptly use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Designated
Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of such Designated Securities, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented, in such quantities as the Representatives may
from time to time reasonably request, and, if the delivery of a Prospectus
is required at any time in connection with the offering or sale of the
Designated Securities and if at such time any event shall have occurred as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and, upon their
request, to file such document and to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To cause the Trust to make generally available to holders of
Designated Securities, as soon as practicable, but in any event not later
than eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earnings statement
of the Trust (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158); and
(e) To apply the net proceeds of the offering and sale of the
Designated Securities and the related Certificates that it receives in the
manner set forth in the Prospectus.
6. The Company and Sallie Mae covenant and agree with the several
Underwriters that the Company or Sallie Mae will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's and Sallie
Mae's counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto and
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<PAGE> 10
the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) the cost of printing or producing any Agreement among Underwriters, this
Agreement, any Pricing Agreement, any Indenture, any Trust Agreement, any
Delayed Delivery Contracts, any Blue Sky and Legal Investment Memoranda,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Designated
Securities; (iii) all expenses in connection with the qualification of the
Designated Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and Legal Investment Surveys; (iv) any fees
charged by securities rating services for rating the Designated Securities; (v)
the cost of preparing the Designated Securities; (vi) the fees and expenses of
the Eligible Lender Trustee and the Indenture Trustee and any agent of the
Eligible Lender Trustee or the Indenture Trustee and the fees and disbursements
of counsel for the Eligible Lender Trustee and the Indenture Trustee in
connection with any Indenture and Trust Agreement and the Designated
Securities; and (vii) all other costs and expenses incident to the performance
of its obligations hereunder and under any Delayed Delivery Contracts which are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, and Sections 8 and 11
hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the reasonable discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company and Sallie
Mae in or incorporated by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of the Time of Delivery for such
Designated Securities, true and correct, the condition that the Company and
Sallie Mae shall have performed all of their obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened by
the Commission; and all requests for additional information on the part of
the Commission shall have been complied with;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, substantially in the form
attached hereto as Annex II(a), dated the Time of Delivery for such
Designated Securities, with respect to the Designated Securities and such
other related matters as the Representatives may reasonably request, and
the Company and Sallie Mae shall have furnished or caused to be furnished
to such counsel such documents and information as they may reasonably
request to pass upon such matters;
(c) Internal counsel for the Company, Sallie Mae and the Servicer,
satisfactory to the Representatives, shall have furnished to the
Representatives a written opinion or
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opinions, dated the Time of Delivery for such Designated Securities,
substantially in the form attached hereto as Annex II(b) or as is
otherwise satisfactory to the Representatives;
(d) Special counsel for the Company, Sallie Mae and the Servicer,
satisfactory to the Representatives, shall have furnished to the
Representatives a written opinion or opinions, dated the Time of Delivery
for such Designated Securities, substantially in the form attached hereto
as Annex II(c) or as is otherwise satisfactory to the Representatives;
(e) Counsel for the Eligible Lender Trustee, satisfactory to the
Representatives, shall have furnished to the Representatives a written
opinion or opinions, dated the Time of Delivery for such Designated
Securities, substantially in the form attached hereto as Annex II(d) or as
is otherwise satisfactory to the Representatives;
(f) Counsel for the Indenture Trustee, satisfactory to the
Representatives, shall have furnished to the Representatives a written
opinion or opinions, dated the Time of Delivery for such Designated
Securities, substantially in the form attached hereto as Annex II(e) or as
is otherwise satisfactory to the Representatives;
(g) At the time a Preliminary Prospectus relating to such
Designated Securities was distributed and on the date of the Pricing
Agreement for such Designated Securities, the independent public
accountants of the Company and Sallie Mae shall have furnished to the
Representatives a letter or letters with respect to the Company, Sallie
Mae, the statistical and financial information contained in the
Preliminary Prospectus and the Prospectus and certain agreed upon
procedures with respect to the issuance and offering of the Designated
Securities and the related Student Loans, in form and substance
satisfactory to the Representatives and in each case confirming that such
accountants are independent public accountants with the meaning of the Act
and the applicable rules and regulations thereunder;
(h) (i) Neither the Company nor Sallie Mae shall have sustained
since the date of the financial statements included in Sallie Mae's most
recently published Information Statement any material loss or interference
with its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in such Information Statement, and (ii) since such date,
there shall not have been any material adverse change in the capital stock
or long-term debt of the Company or Sallie Mae or any such change, or any
development involving a prospective such change, in or affecting the
general affairs, management, financial position, shareholders' equity or
results of operations of the Company or Sallie Mae otherwise than as set
forth or contemplated in such Information Statement, the effect of which,
in any such case described in clause (i) or (ii), is in the judgment of
the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Underwriters' Securities on the terms and in the manner contemplated in
the Prospectus as first amended or supplemented relating to the Designated
Securities;
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded Sallie Mae's
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debt securities or preferred stock by any "nationally recognized
statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act ("Rating Agency"),
and (ii) no such Rating Agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of Sallie Mae's debt securities;
(j) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange or any setting of minimum prices for
trading on such exchange; (ii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities; or
(iii) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or
war, if the effect of any such event specified in this clause (iii) in the
reasonable judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Underwriters' Securities on the terms and in the manner contemplated in
the Prospectus as theretofore amended or supplemented relating to the
Designated Securities;
(k) Each of the Company and Sallie Mae shall have furnished or
caused to be furnished to the Representatives at the Time of Delivery for
the Designated Securities a certificate or certificates of officers of the
Company or Sallie Mae, as the case may be, satisfactory to the
Representatives as to the accuracy of the representations and warranties
of the Company or Sallie Mae, as the case may be, herein at and as of such
Time of Delivery, as to the performance by the Company or Sallie Mae, as
the case may be, of all of their obligations hereunder to be performed at
or prior to such Time of Delivery, as to the matters set forth in
subsections (a), (h) and (i) of this Section and as to such other matters
as the Representatives may reasonably request;
(l) At the Time of Delivery, the aggregate principal amount of the
Underwriters' Securities as specified in the related Pricing Agreement for
the Designated Securities shall have been sold by the Company to the
Underwriters, and the aggregate amount of the related Certificates as
specified in the related underwriting agreement for such Certificates
shall have been sold by the Company to the underwriters specified in such
underwriting agreement; and
(m) The Designated Securities shall be rated as set forth in the
related Prospectus by the Rating Agency (or Agencies) specified in such
Prospectus, and such Rating Agency or Agencies shall not have placed the
Designated Securities under surveillance or review with negative
implications.
8. (a) The Company and Sallie Mae, jointly and severally, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Designated Securities, or any amendment or
supplement thereto, or arise out of or are based
12
<PAGE> 13
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company and Sallie Mae shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company or Sallie Mae by any Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company and
Sallie Mae against any losses, claims, damages or liabilities to which they may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus
as amended or supplemented and any other prospectus relating to the Designated
Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company or Sallie Mae by
such Underwriter through the Representatives expressly for use therein; and
will reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than
13
<PAGE> 14
reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from
all liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company and Sallie Mae, on the one hand
and the Underwriters of the Designated Securities on the other from the
offering of the Designated Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and Sallie Mae, on the one hand and the Underwriters of
the Designated Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and Sallie Mae,
on the one hand, and such Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company and Sallie Mae bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or Sallie Mae, on the one hand, or such Underwriters on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company,
Sallie Mae and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
14
<PAGE> 15
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company and Sallie Mae under this Section 8
shall be in addition to any liability which the Company and Sallie Mae may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in addition
to any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company or Sallie Mae and to each person, if any, who controls the Company or
Sallie Mae within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Underwriters' Securities which it has agreed to purchase under the
Pricing Agreement relating to such Underwriters' Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Underwriters' Securities on the terms
contained herein and therein. If within thirty-six hours after such default by
any Underwriter the Representatives do not arrange for the purchase of such
Underwriters' Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Underwriters'
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Underwriters' Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Underwriters'
Securities, the Representatives or the Company shall have the right to postpone
the Time of Delivery for such Underwriters' Securities for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Underwriters' Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of
Underwriters' Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based
on the principal amount of Designated Securities which such Underwriter agreed
to purchase under such Pricing Agreement) of the Underwriters' Securities of
such defaulting Underwriter or Underwriters for
15
<PAGE> 16
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Underwriters' Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Underwriters' Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating to
such Designated Securities shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company, except for the expenses
to be borne by the Company and the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, Sallie Mae and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company or Sallie Mae or any officer or director or
controlling person of the Company or Sallie Mae, and shall survive delivery of
and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company and Sallie Mae shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such Pricing
Agreement except as provided in Sections 6 and 8 hereof; but, if for any other
reason Underwriters' Securities are not delivered by or on behalf of the
Company as provided herein, except for any of the reasons specified in Section
7(j), the Company and Sallie Mae will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company and Sallie Mae shall
then be under no further liability to any Underwriter with respect to such
Designated Securities except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth in
the Pricing Agreement; and if to the Company or Sallie Mae shall be delivered
or sent by mail, telex or facsimile transmission to:
SLM Funding Corporation
777 Twin Creek Drive
16
<PAGE> 17
Killeen, Texas 76543
Facsimile: (817) 554-4999
Attention: Phyllis A. Leeth
Vice President
Student Loan Marketing Association
1050 Thomas Jefferson Street, NW
Washington, DC 20007-3781
Facsimile: (202) 298-2726
Attention: Robert R. Levine
Vice President and Treasurer
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire,
or telex constituting such Questionnaire, which address will be supplied to the
Company or Sallie Mae by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company, Sallie Mae
and, to the extent provided in Sections 8 and 10 hereof, the officers and
directors of the Company and Sallie Mae and each person who controls the
Company, Sallie Mae or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business and "New York Business Day" shall mean
any day when banking institutions are open for business in New York City, New
York.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
17
<PAGE> 18
IF THE FOREGOING IS IN ACCORDANCE WITH YOUR UNDERSTANDING, PLEASE SIGN AND
RETURN TO US ___ COUNTERPARTS HEREOF.
Very truly yours,
SLM FUNDING CORPORATION
By: /s/ Denise B. McGlone
----------------------
Name:
Title:
STUDENT LOAN MARKETING ASSOCIATION
By: /s/ Robert R. Levine
---------------------
Name:
Title:
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
By: Goldman, Sachs & Co.
--------------------
(Goldman, Sachs & Co.)
18
<PAGE> 19
ANNEX I
PRICING AGREEMENT
- -------------------------
AS REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS NAMED ON SCHEDULE I HERETO,
C/O
-----------------------
- --------------------------
- -------------------------- , 199__
Ladies and Gentlemen:
SLM Funding Corporation, a Delaware corporation (the "Company"), and the
Student Loan Marketing Association, a corporation formed under the laws of the
United States ("Sallie Mae"), propose, subject to the terms and conditions
stated herein and in the Underwriting Agreement, dated __________, 199__ (the
"Underwriting Agreement"), between the Company and Sallie Mae, on the one hand,
and _____________ and _________________, on the other hand, that the Company
will cause the trust (the "Trust") formed pursuant to the Trust Agreement dated
as of _______, 199__ between the Company and _______, as trustee (the "Eligible
Lender Trustee"), to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Student Loan-Backed Notes (the "Notes")
specified in Schedule II hereto (the "Designated Securities"). The Notes will
be issued and secured pursuant to the Indenture, dated ___________ (the
"Indenture"), between the Trust and _________, as trustee (the "Indenture
Trustee").
Each of the provisions of the Underwriting Agreement is incorporated
herein by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement,
except that each representation and warranty which refers to the Prospectus in
Section 2 of the Underwriting Agreement shall be deemed to be a representation
or warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Pricing Agreement in relation to the Prospectus as amended or
supplemented relating to the Designated Securities which are the subject of
this Pricing Agreement. Each reference to the Representatives herein and in
the provisions of the Underwriting Agreement so incorporated by reference shall
be deemed to refer to you. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the Representatives and
on behalf of each of the Underwriters of the Designated Securities pursuant to
Section 12 of the Underwriting Agreement and the address of the Representatives
referred to in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
<PAGE> 20
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
cause the Trust to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto, less the principal
amount of Designated Securities covered by Delayed Delivery Contracts, if any,
as may be specified in Schedule II.
During the period beginning from the date of this Pricing Agreement for
the Designated Securities and continuing to and including the later of (i) [___
days after] the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Representatives and (ii) [__ days
after] the Time of Delivery for such Designated Securities, the Company agrees,
and Sallie Mae agrees that it will cause the Company, not to, and not to permit
any affiliated entity to, offer, sell, contract to sell or otherwise dispose
of, any securities (other than the Designated Securities) collateralized by, or
any securities (other than the related Certificates) evidencing an ownership
in, Student Loans, without the prior written consent of the Representatives.
Each Underwriter represents and agrees that (a) it has not offered or sold
and will not offer or sell any Notes or Certificates to persons in the United
Kingdom prior to the expiration of the period of six months from the issue date
of the Notes and the Certificates except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (b) it has complied and will comply with all
applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Notes and the Certificates in, from or
otherwise involving the United Kingdom; and (c) it has only issued or passed on
and will only issue or pass on in the United Kingdom any document received by
it in connection with the issuance of the Notes and the Certificates to a
person who is of a kind described in article 11(3) of the Financial Services
Act 1986 (Investment Advertisements) (Exemptions) Order 1995 or is a person to
whom such document may otherwise lawfully be issued or passed on.
If the foregoing is in accordance with your understanding, please sign and
return to us ______ counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters and the Company and Sallie Mae. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company and Sallie Mae for
examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
SLM FUNDING CORPORATION
By:
-----------------------------
Name:
2
<PAGE> 21
Title:
STUDENT LOAN MARKETING ASSOCIATION
By:
-----------------------------------
Name:
Title:
3
<PAGE> 22
Accepted as of the date hereof:
[__________________]
By:
------------------------------------------
[__________________]
By:
------------------------------------------
Name:
Title:
On behalf of each of the Underwriters
4
<PAGE> 23
SCHEDULE I
PRINCIPAL AMOUNT OF DESIGNATED SECURITIES TO BE PURCHASED
UNDERWRITER CLASS ___ CLASS ___ CLASS ___
<PAGE> 24
SCHEDULE II
TITLE OF EACH CLASS OF DESIGNATED SECURITIES:
AGGREGATE PRINCIPAL AMOUNT OF EACH CLASS:
PRICE TO PUBLIC OF EACH CLASS:
PURCHASE PRICE BY UNDERWRITERS OF EACH CLASS:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
INDENTURE:
MATURITY:
INTEREST RATE:
FORM OF DESIGNATED SECURITIES:
TIME OF DELIVERY:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
<PAGE> 25
ANNEX II(a)
UNDERWRITER: COUNSEL OPINION
<PAGE> 26
ANNEX II(b)
THE COMPANY, SALLIE MAE AND THE SERVICER: INTERNAL COUNSEL OPINION
<PAGE> 27
ANNEX II(c)
THE COMPANY, SALLIE MAE AND THE SERVICER: OUTSIDE COUNSEL OPINION
<PAGE> 28
ANNEX II(d)
ELIGIBLE LENDER TRUSTEE: COUNSEL OPINION
<PAGE> 29
ANNEX II(e)
INDENTURE TRUSTEE: COUNSEL OPINION
<PAGE> 30
ANNEX III
DELAYED DELIVERY CONTRACT
SLM FUNDING CORPORATION
C/O
---------------------------
---------------------------
---------------------------
Attention: , 19__
------------------------ -----------
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SLM Funding Corporation
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
$
---------
principal amount of the Company's ________ (hereinafter called the "Designated
Securities"), offered by the Company's Prospectus, dated ____________, 19__,
as amended or supplemented, receipt of a copy of which is hereby acknowledged,
at a purchase price of _____% of the principal amount thereof, plus accrued
interest from the date from which interest accrues as set forth below, and on
the further terms and conditions set forth below.
The undersigned will purchase the Designated Securities from the Company
on ______________, 19__ (the "Delivery Date") and interest on the Designated
Securities so purchased will accrue from ______________, 19__.
[THE UNDERSIGNED WILL PURCHASE THE DESIGNATED SECURITIES FROM THE COMPANY
ON THE DELIVERY DATE OR DATES AND IN THE PRINCIPAL AMOUNT OR AMOUNTS SET FORTH
BELOW:
<TABLE>
<CAPTION>
PRINCIPAL DATE FROM WHICH
DELIVERY DATE AMOUNT INTEREST ACCRUES
------------- ------ ----------------
<S> <C> <C>
, 19 $ , 19
--------------------- -- ------------- --------------------- --
, 19 $ , 19
--------------------- -- ------------- --------------------- --
</TABLE>
EACH SUCH DATE ON WHICH DESIGNATED SECURITIES ARE TO BE PURCHASED HEREUNDER IS
HEREINAFTER REFERRED TO AS A "DELIVERY DATE."(4)]
Payment for the Designated Securities which the undersigned has agreed to
purchase on [THE] [EACH] Delivery Date shall be made to the Company or its
order by certified or official bank check in __________ Clearing House funds at
the office of __________, __________, __________, or by wire transfer to a bank
account specified by the Company, on [THE] [SUCH] Delivery Date upon delivery
to the undersigned of the Designated Securities then to be purchased by the
undersigned in definitive fully registered form and in such denominations and
registered in such names as the undersigned may designate by written, telex or
facsimile communication addressed to the Company not less than five full
business days prior to [THE] [SUCH] Delivery Date.
<PAGE> 31
The obligation of the undersigned to take delivery of and make payment for
Designated Securities on [THE] [EACH] Delivery Date shall be subject to the
condition that the purchase of Designated Securities to be made by the
undersigned shall not on [THE] [SUCH] Delivery Date be prohibited under the
laws of the jurisdiction to which the undersigned is subject. The obligation
of the undersigned to take delivery of and make payment for Designated
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payment for Designated Securities pursuant to other
contracts similar to this contract.
[THE UNDERSIGNED UNDERSTANDS THAT UNDERWRITERS (THE "UNDERWRITERS") ARE
ALSO PURCHASING DESIGNATED SECURITIES FROM THE COMPANY, BUT THAT THE
OBLIGATIONS OF THE UNDERSIGNED HEREUNDER ARE NOT CONTINGENT ON SUCH PURCHASES].
Promptly after completion of the sale to the Underwriters the Company will mail
or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the Opinion of Counsel for the Company
delivered to the Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
F-2
<PAGE> 32
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts need
not be on a first-come, first-served basis. If this contract is acceptable to
the Company, it is requested that the Company sign the form of acceptance below
and mail or deliver one of the counterparts hereof to the undersigned at its
address set forth below. This will become a binding contract between the
Company and the undersigned when such counterpart is so mailed or delivered by
the Company.
Yours very truly,
-----------------------------------------
By:
--------------------------------------
(Authorized Signature)
Name:
Title:
-----------------------------------------
(Address)
Accepted: , 19
-------------- --
SLM FUNDING CORPORATION
By:
--------------------------
Name:
Title:
F-3
<PAGE> 1
EXHIBIT 1.4
SLM FUNDING CORPORATION
STUDENT LOAN-BACKED CERTIFICATES
------------------
UNDERWRITING AGREEMENT
June 26, 1996
GOLDMAN, SACHS & CO.
85 BROAD STREET
NEW YORK, NEW YORK 10004
Ladies and Gentlemen:
From time to time the Student Loan Marketing Association
("Sallie Mae"), a corporation formed under the laws of the United States, and
SLM Funding Corporation, a Delaware corporation and a wholly-owned subsidiary
of Sallie Mae (the "Company"), propose to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with
such additions and deletions as the parties thereto may determine. Subject to
the terms and conditions stated herein and therein, the Company proposes to
cause the Trust specified in the applicable Pricing Agreement to issue and sell
to the firms named in Schedule I to the applicable Pricing Agreement (such
firms constituting the "Underwriters" with respect to such Pricing Agreement
and the securities specified therein) certain of such Trust's Student
Loan-Backed Certificates (the "Certificates") specified in Schedule II to such
Pricing Agreement (with respect to such Pricing Agreement, the "Designated
Securities"), less the amount of Designated Securities covered by Delayed
Delivery Contracts, if any, as provided in Section 3 hereof and as may be
specified in Schedule II to such Pricing Agreement (with respect to such
Pricing Agreement, any Designated Securities to be covered by Delayed Delivery
Contracts are herein sometimes referred to as "Contract Securities" and the
Designated Securities to be purchased by the Underwriters (after giving effect
to the deduction, if any, for Contract Securities) are herein sometimes
referred to as "Underwriters' Securities").
The Securities may be sold from time to time in one or more
Series. Each Series of Securities, which will include one or more classes of
Certificates and one or more classes of Student Loan-Backed Notes (the "Notes,"
and, together with the Certificates, the "Securities") will be issued by a
Trust to be formed with respect to such Series (each, a "Trust"). Each Trust
will be formed pursuant to a trust agreement (a "Trust Agreement") to be
entered into between the Company and the Eligible Lender Trustee specified in
the related Pricing Agreement (the "Eligible Lender Trustee"). The Notes of
each Series will be issued and secured pursuant to an indenture (an
"Indenture") between the Trust and the Indenture Trustee specified in the
related Pricing Agreement (the "Indenture Trustee"). The Certificates of a
Series will be issued pursuant to the related Trust Agreement and will
represent fractional undivided interests in the Trust created thereby. The
property of each Trust will include, among other things, educational student
loans to students and/or parents of dependent students ("Student Loans").
With respect to each Trust, (i) the Company will acquire the
related Student Loans from Sallie Mae pursuant to a Purchase Agreement and (ii)
the Company will sell the related
<PAGE> 2
Student Loans to such Trust pursuant to a Sale Agreement, with the related
Eligible Lender Trustee holding legal title thereto. With respect to each
Series, Sallie Mae Servicing Corporation. as servicer (the "Servicer") will
enter into a servicing agreement (a "Servicing Agreement") with the Trust, the
Administrator, the Eligible Lender Trustee and the Indenture Trustee with
respect to the related Student Loans. Sallie Mae, as administrator (in such
capacity, the "Administrator"), will enter into an Administration Agreement
with the Eligible Lender Trustee, the Servicer, the Company, the Trust and the
Indenture Trustee with respect to the related Student Loans.
The terms and conditions of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the related Indenture.
Capitalized terms used but not defined herein or in any Pricing Agreement
shall have the meanings ascribed thereto in the related Indenture.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firms designated
as representatives of the Underwriters of such Securities in the Pricing
Agreement relating thereto will act as representatives (the "Representatives").
The term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to an Underwriter or Underwriters who
act without any firm being designated as its or their representatives. This
Underwriting Agreement shall not be construed as an obligation of the Company
to sell any of the Securities or as an obligation of any of the Underwriters to
purchase the Securities. The obligation of the Company to issue and sell any
of the Securities and the obligation of any of the Underwriters to purchase any
of the Securities shall be evidenced by the Pricing Agreement with respect to
the Designated Securities specified therein. Each Pricing Agreement shall
specify the aggregate amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the amount of such Designated Securities to be purchased by
each Underwriter and whether any of such Designated Securities shall be covered
by Delayed Delivery Contracts (as defined in Section 3 hereof) and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other
rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. The Company and Sallie Mae represent and warrant to, and agree
with, each of the Underwriters as follows (it being agreed and understood that
the statements set forth in clauses (d), (e), (g), (h), (j), (k), (m), (n) and
(o) of this Section 2 with respect to Sallie Mae or the Servicer constitute
representations, warranties and agreements of Sallie Mae only and not of the
Company):
2
<PAGE> 3
(a) A registration statement on Form S-3
(File No. 333-2502), including a form of prospectus, in
respect of the Securities has been filed with the
Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to
such registration statement, but including all documents
incorporated by reference in the prospectus contained
therein, to the Representatives for each of the other
Underwriters, have been declared effective by the
Commission in such form; no other document with respect to
such registration statement or document incorporated by
reference therein has heretofore been filed or transmitted
for filing with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Securities Act of 1933, as
amended (the "Act"), each in the form heretofore delivered
to the Representatives); and no stop order suspending the
effectiveness of such registration statement has been
issued and no proceeding for that purpose has been
initiated or, to the best of Sallie Mae's or the Company's
knowledge, threatened by the Commission (any preliminary
prospectus included in such registration statement or filed
with the Commission pursuant to Rule 424(a) under the Act,
is hereinafter called a "Preliminary Prospectus;" the
various parts of such registration statement, including all
exhibits thereto and the documents incorporated by
reference in the prospectus contained in the registration
statement at the time such part of the registration
statement became effective but excluding Form T-1, each as
amended at the time such part of the registration statement
became effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the
Securities, in the form in which it has most recently been
filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, being hereinafter
called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference
to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus
as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the
applicable Designated Securities in the form in which it is
filed with the Commission pursuant to Rule 424(b) under the
Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date
of such filing);
(b) The documents incorporated by
reference in the Prospectus, when they became effective or
were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of
the Act, the Exchange Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), as
applicable, and the
3
<PAGE> 4
rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such
documents become effective or are filed with the
Commission, as the case may be, will conform in all
material respects to the requirements of the Act, the
Exchange Act and the Trust Indenture Act, as applicable,
and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented
relating to such Designated Securities;
(c) The Registration Statement and the
Prospectus conform, and any further amendments or
supplements to the Registration Statement or the Prospectus
will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act, as applicable, and
the rules and regulations of the Commission thereunder and
do not and will not, as of the applicable effective date as
to the Registration Statement and any amendment thereto and
as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to the
Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Designated
Securities;
(d) Neither the Company nor Sallie Mae
or any of its subsidiaries has sustained since the date of
the financial statements included in Sallie Mae's most
recently published Information Statement any material loss
or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set
forth or contemplated in such Information Statement; and,
since such date, there has not been any material adverse
change in the capital stock or long-term debt of the
Company or Sallie Mae or any of its subsidiaries or any
material adverse change, or any development involving a
prospective material adverse change, in or affecting the
general affairs, management, financial position,
shareholders' equity or results of operations of the
Company or Sallie Mae or any of its subsidiaries or the
transactions contemplated hereby, otherwise than as set
forth or contemplated in such Information Statement;
(e) The Company has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the state of Delaware, with
power and authority (corporate and other) to own its
properties and conduct its business as described in the
Prospectus and to consummate the transactions contemplated
therein
4
<PAGE> 5
and herein, and is a wholly-owned subsidiary of Sallie Mae.
Sallie Mae has been duly organized and is validly existing
under the laws of the United States, with power and
authority (corporate and otherwise) to own its properties
and conduct its business as described in the Prospectus and
to consummate the transactions contemplated therein and
herein. The Servicer has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the State of Delaware, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus and to consummate
the transactions contemplated therein and herein, and is a
wholly-owned subsidiary of Sallie Mae.
(f) All of the issued shares of capital
stock of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable and are
owned beneficially and of record by Sallie Mae;
(g) This Agreement has been, and each
Pricing Agreement with respect to the Designated Securities
upon its execution and delivery by the Company and Sallie
Mae will have been, duly authorized, executed and delivered
by the Company and Sallie Mae. The Securities have been
duly authorized, and, when Designated Securities are issued
and delivered pursuant to this Agreement and the Pricing
Agreement with respect to such Designated Securities, and,
in the case of any Contract Securities, pursuant to Delayed
Delivery Contracts with respect to such Contract
Securities, such Designated Securities and Contract
Securities will have been duly executed, authenticated,
issued and delivered. The related Notes will constitute
valid and legally binding obligations of the related Trust
entitled to the benefits provided by the Indenture, which
will be substantially in the form filed as an exhibit to
the Registration Statement. The Indenture has been duly
authorized and duly qualified under the Trust Indenture
Act. The Designated Securities are intended to represent
undivided ownership interests in the Trust created by the
Trust Agreement, which will be substantially in the form
filed as an exhibit to the Registration Statement, and will
be entitled to the benefits provided by the Trust
Agreement. At the Time of Delivery (as defined in Section
4 hereof) for the Designated Securities, the Indenture and
the Trust Agreement will each constitute a valid and
legally binding instrument, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights
and to general equity principles. The Indenture and Trust
Agreement conform, and the Designated Securities and the
related Notes will conform, to the descriptions thereof
contained in the Prospectus as amended or supplemented with
respect to the Designated Securities;
(h) The issue and sale of the Securities
and the compliance by the Company with all of the
provisions of the Securities, the Indenture, the Trust
Agreement, each of the Delayed Delivery Contracts, this
Agreement and any Pricing Agreement, and the consummation
of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Company or Sallie Mae is a party or by which the Company or
Sallie Mae is bound or to which any of the property or
assets of the Company or Sallie Mae is subject, nor will
such action result in any violation of the
5
<PAGE> 6
provisions of the Company's Certificate of Incorporation or
By-laws, Sallie Mae's charter, enabling legislation or
By-laws, or any statute or any order, rule or regulation of
any court or governmental agency or body having
jurisdiction over the Company or Sallie Mae or any of their
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and
sale of the Securities or the consummation by the Company
or Sallie Mae of the transactions contemplated by this
Agreement or any Pricing Agreement or the Indenture or any
Delayed Delivery Contract, except such as have been, or
will have been prior to the Time of Delivery, obtained
under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the
Underwriters;
(i) The statements set forth in the
Prospectus under the captions "Description of the Notes"
and "Description of the Certificates" and set forth in the
Prospectus Supplement under the caption "Description of the
Securities," insofar as they purport to constitute a
summary of the terms of the Notes and the Certificates, are
accurate, complete and fair;
(j) Sallie Mae is not in violation of
its charter as set forth in its enabling legislation or
By-laws, and the Company is not in violation of its
Certificate of Incorporation or By-laws, and neither Sallie
Mae nor the Company is in default in the performance or
observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of
its properties may be bound;
(k) Other than as set forth in the
Prospectus or in Sallie Mae's most recently published
Information Statement, there are no legal or governmental
proceedings pending to which the Company or Sallie Mae or
any of its subsidiaries is a party or of which any property
of the Company or Sallie Mae or any of its subsidiaries is
the subject which, if determined adversely to the Company
or Sallie Mae or any of its subsidiaries, would
individually or in the aggregate have a material adverse
effect on the current or future consolidated financial
position, shareholders' equity or results of operations of
the Company or Sallie Mae or any of its subsidiaries or on
the consummation of the transactions contemplated hereby;
and, to the best of the Company's and Sallie Mae's
knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(l) The Company is not and, after giving
effect to the offering and sale of the Securities, will not
be an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment
Company Act");
(m) Neither the Company, Sallie Mae nor
any of their affiliates does business with the government
of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
6
<PAGE> 7
(n) Ernst & Young LLP, who have
certified certain financial statements of Sallie Mae, are
independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder;
(o) At the Time of Delivery of the
Designated Securities, Sallie Mae's representations and
warranties in the related Purchase Agreement and
Administration Agreement, the Company's representations and
warranties in the related Sale Agreement and Trust
Agreement and the Servicer's representations and warranties
in the Servicing Agreement will be true and correct in all
material respects; and
(p) In the event any of the Securities
are purchased pursuant to Delayed Delivery Contracts, each
of such Delayed Delivery Contracts has been duly authorized
by the Company and Sallie Mae and, when executed and
delivered by the Company and the purchaser named therein,
will constitute a valid and legally binding agreement of
the Company enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles; and any Delayed Delivery Contracts
conform to the description thereof in the Prospectus.
3. Upon the execution of the Pricing Agreement
applicable to any Designated Securities and authorization by the
Representatives of the release of the Underwriters' Securities, the several
Underwriters propose to offer such Underwriters' Securities for sale upon the
terms and conditions set forth in the Prospectus as amended or supplemented.
The Company may specify in Schedule II to the Pricing
Agreement applicable to any Designated Securities that the Underwriters are
authorized to solicit offers to purchase Designated Securities from the Company
pursuant to delayed delivery contracts (herein called "Delayed Delivery
Contracts"), substantially in the form of Annex III attached hereto but with
such changes therein as the Representatives and the Company may authorize or
approve. If so specified, the Underwriters will endeavor to make such
arrangements, and as compensation therefor the Company will pay to the
Representatives, for the accounts of the Underwriters, at the Time of Delivery,
such commission, if any, as may be set forth in such Pricing Agreement.
Delayed Delivery Contracts, if any, are to be with investors of the types
described in the Prospectus and subject to other conditions therein set forth.
The Underwriters will not have any responsibility with respect to the validity
or performance of any Delayed Delivery Contracts.
The amount of Contract Securities to be deducted from the
amount of Designated Securities to be purchased by each Underwriter as set
forth in Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, the amount of Contract Securities which the
Company has been advised by the Representatives have been attributed to such
Underwriter, provided that, if the Company has not been so advised, the amount
of Contract Securities to be so deducted shall be, in each case, that
proportion of Contract Securities which the amount of Designated Securities to
be purchased by such Underwriter under such Pricing Agreement bears to the
total amount of the Designated Securities (rounded as the Representatives may
determine). The total amount of Underwriters' Securities to be purchased by
all the Underwriters pursuant to such Pricing Agreement shall be the total
amount of Designated Securities set forth in Schedule I to such Pricing
Agreement less the amount of the Contract Securities. The Company will deliver
to the Representatives
7
<PAGE> 8
not later than 3:30 p.m., New York City time, on the third business day
preceding the Time of Delivery specified in the applicable Pricing Agreement
(or such other time and date as the Representatives and the Company may agree
upon in writing), a written notice setting forth the amount of Contract
Securities.
4. Underwriters' Securities to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in the form
specified in such Pricing Agreement, and in such authorized denominations and
registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer or by certified or official bank check
or checks, payable to the order of the Company in the funds specified in such
Pricing Agreement, all in the manner and at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "Time of Delivery" for such Securities.
Concurrently with the delivery of and payment for the
Underwriters' Securities, the Company will deliver to the Representatives for
the accounts of the Underwriters a check payable to the order of the party
designated in the Pricing Agreement relating to such Underwriters' Securities
in the amount of any compensation payable by the Company to the Underwriters in
respect of any Delayed Delivery Contracts as provided in Section 3 hereof and
the Pricing Agreement relating to such Securities.
5. The Company agrees with each of the Underwriters
of any Designated Securities, and Sallie Mae agrees with such Underwriters that
it will cause the Company:
(a) To prepare the Prospectus as amended
or supplemented in relation to the applicable Designated
Securities in a form approved by the Representatives and to
file such Prospectus pursuant to Rule 424(b) under the Act
not later than the Commission's close of business on the
second business day following the execution and delivery of
the Pricing Agreement relating to the applicable Designated
Securities or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or
any supplement to the Registration Statement or Prospectus
as amended or supplemented after the date of the Pricing
Agreement relating to such Designated Securities and prior
to the Time of Delivery for such Designated Securities
which shall be disapproved by the Representatives for such
Designated Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; to file
promptly all reports and any definitive proxy or
information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or
sale of such Designated Securities, and during such same
period to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any prospectus
relating to the Designated Securities, of the suspension of
the qualification
8
<PAGE> 9
of such Designated Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending
the use of any prospectus relating to the Designated
Securities or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take
such action as the Representatives may reasonably request
to qualify the Designated Securities for offering and sale
under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so
as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to
complete the distribution of such Designated Securities,
provided that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file
a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with
copies of the Prospectus as amended or supplemented, in
such quantities as the Representatives may from time to
time reasonably request, and, if the delivery of a
Prospectus is required at any time in connection with the
offering or sale of the Designated Securities and if at
such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement
the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify the Representatives and, upon
their request, to file such document and to prepare and
furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such
compliance;
(d) To cause the Trust to make generally
available to holders of Designated Securities, as soon as
practicable, but in any event not later than eighteen
months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Trust (which need not be audited)
complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the
option of the Company, Rule 158); and
(e) To apply the net proceeds of the
offering and sale of the Designated Securities and the
related Notes that it receives in the manner set forth in
the Prospectus.
6. The Company and Sallie Mae covenant and agree
with the several Underwriters that the Company or Sallie Mae will pay or cause
to be paid the following: (i) the fees, disbursements and expenses of the
Company's and Sallie Mae's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
9
<PAGE> 10
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Trust Agreement, any Delayed Delivery Contracts, any Blue Sky and Legal
Investment Memoranda, closing documents (including any compilations thereof)
and any other documents in connection with the offering, purchase, sale and
delivery of the Designated Securities; (iii) all expenses in connection with
the qualification of the Designated Securities for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the fees
and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment Surveys;
(iv) any fees charged by securities rating services for rating the Designated
Securities; (v) the cost of preparing the Designated Securities; (vi) the fees
and expenses of the Eligible Lender Trustee and the Indenture Trustee and any
agent of the Eligible Lender Trustee or the Indenture Trustee and the fees and
disbursements of counsel for the Eligible Lender Trustee and the Indenture
Trustee in connection with any Indenture and Trust Agreement and the Designated
Securities; and (vii) all other costs and expenses incident to the performance
of its obligations hereunder and under any Delayed Delivery Contracts which are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, and Sections 8 and 11
hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters of any
Designated Securities under the Pricing Agreement relating to such Designated
Securities shall be subject, in the reasonable discretion of the
Representatives, to the condition that all representations and warranties and
other statements of the Company and Sallie Mae in or incorporated by reference
in the Pricing Agreement relating to such Designated Securities are, at and as
of the Time of Delivery for such Designated Securities, true and correct, the
condition that the Company and Sallie Mae shall have performed all of their
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or
supplemented in relation to the applicable Designated
Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a) hereof;
no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission
shall have been complied with;
(b) Counsel for the Underwriters shall
have furnished to the Representatives such opinion or
opinions, substantially in the form attached hereto as
Annex II(a), dated the Time of Delivery for such Designated
Securities, with respect to the Designated Securities and
such other related matters as the Representatives may
reasonably request, and the Company and Sallie Mae shall
have furnished or caused to be furnished to such counsel
such documents and information as they may reasonably
request to pass upon such matters;
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<PAGE> 11
(c) Internal counsel for the Company,
Sallie Mae and the Servicer, satisfactory to the
Representatives, shall have furnished to the
Representatives a written opinion or opinions, dated the
Time of Delivery for such Designated Securities,
substantially in the form attached hereto as Annex II(b) or
as is otherwise satisfactory to the Representatives;
(d) Special counsel for the Company,
Sallie Mae and the Servicer, satisfactory to the
Representatives, shall have furnished to the
Representatives a written opinion or opinions, dated the
Time of Delivery for such Designated Securities,
substantially in the form attached hereto as Annex II(c) or
as is otherwise satisfactory to the Representatives;
(e) Counsel for the Eligible Lender
Trustee, satisfactory to the Representatives, shall have
furnished to the Representatives a written opinion or
opinions, dated the Time of Delivery for such Designated
Securities, substantially in the form attached hereto as
Annex II(d) or as is otherwise satisfactory to the
Representatives;
(f) Counsel for the Indenture Trustee,
satisfactory to the Representatives, shall have furnished
to the Representatives a written opinion or opinions, dated
the Time of Delivery for such Designated Securities,
substantially in the form attached hereto as Annex II(e) or
as is otherwise satisfactory to the Representatives;
(g) At the time a Preliminary Prospectus
relating to such Designated Securities was distributed and
on the date of the Pricing Agreement for such Designated
Securities, the independent public accountants of the
Company and Sallie Mae shall have furnished to the
Representatives a letter or letters with respect to the
Company, Sallie Mae, the statistical and financial
information contained in the Preliminary Prospectus and the
Prospectus, as the case may be, and certain agreed upon
procedures with respect to the issuance and offering of the
Designated Securities and the related Student Loans, in
form and substance satisfactory to the Representatives and
in each case confirming that such accountants are
independent public accountants with the meaning of the Act
and the applicable rules and regulations thereunder;
(h) (i) Neither the Company nor Sallie
Mae shall have sustained since the date of the financial
statements included in Sallie Mae's most recently published
Information Statement any material loss or interference
with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in such
Information Statement, and (ii) since such date, there
shall not have been any material adverse change in the
capital stock or long-term debt of the Company or Sallie
Mae or any such change, or any development involving a
prospective such change, in or affecting the general
affairs, management, financial position, shareholders'
equity or results of operations of the Company or Sallie
Mae otherwise than as set forth or contemplated in such
Information Statement, the effect of which, in any such
case described in clause (i) or (ii), is in the judgment of
the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Underwriters' Securities on
the terms and in the manner contemplated in the Prospectus
as first amended or supplemented relating to the Designated
Securities;
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<PAGE> 12
(i) On or after the date of the Pricing
Agreement relating to the Designated Securities (i) no
downgrading shall have occurred in the rating accorded
Sallie Mae's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act ("Rating Agency"), and (ii) no such
Rating Agency shall have publicly announced that it has
under surveillance or review, with possible negative
implications, its rating of any of Sallie Mae's debt
securities;
(j) On or after the date of the Pricing
Agreement relating to the Designated Securities there shall
not have occurred any of the following: (i) a suspension or
material limitation in trading in securities generally on
the New York Stock Exchange or any setting of minimum
prices for trading on such exchange; (ii) a general
moratorium on commercial banking activities declared by
either Federal or New York State authorities; or (iii) the
outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a
national emergency or war, if the effect of any such event
specified in this clause (iii) in the reasonable judgment
of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the
delivery of the Underwriters' Securities on the terms and
in the manner contemplated in the Prospectus as theretofore
amended or supplemented relating to the Designated
Securities;
(k) Each of the Company and Sallie Mae
shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated
Securities a certificate or certificates of officers of the
Company or Sallie Mae, as the case may be, satisfactory to
the Representatives as to the accuracy of the
representations and warranties of the Company or Sallie
Mae, as the case may be, herein at and as of such Time of
Delivery, as to the performance by the Company or Sallie
Mae, as the case may be, of all of their obligations
hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a),
(h) and (i) of this Section and as to such other matters as
the Representatives may reasonably request;
(l) At the Time of Delivery, the
aggregate amount of the Underwriters' Securities as
specified in the related Pricing Agreement for the
Designated Securities shall have been sold by the Company
to the Underwriters, and the aggregate principal amount of
the related Notes as specified in the related underwriting
agreement for such Notes shall have been sold by the
Company to the underwriters specified in such underwriting
agreement; and
(m) The Designated Securities shall be
rated as set forth in the related Prospectus by the Rating
Agency (or Agencies) specified in such Prospectus, and such
Rating Agency or Agencies shall not have placed the
Designated Securities under surveillance or review with
negative implications.
8. (a) The Company and Sallie Mae, jointly
and severally, will indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement,
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<PAGE> 13
the Prospectus as amended or supplemented and any other prospectus relating to
the Designated Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and Sallie Mae shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating to the
Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company or Sallie Mae by
any Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities.
(b) Each Underwriter will indemnify and hold
harmless the Company and Sallie Mae against any losses, claims, damages or
liabilities to which they may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus
as amended or supplemented and any other prospectus relating to the Securities,
or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Designated Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company or Sallie Mae by such Underwriter through the Representatives expressly
for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for
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<PAGE> 14
any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this
Section 8 is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company and Sallie
Mae, on the one hand and the Underwriters of the Designated Securities on the
other from the offering of the Designated Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and Sallie Mae, on the one hand and the Underwriters of
the Designated Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and Sallie Mae,
on the one hand, and such Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company and Sallie Mae bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or Sallie Mae, on the one hand, or such Underwriters on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company,
Sallie Mae and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount
14
<PAGE> 15
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of
the Underwriters of Designated Securities in this subsection (d) to contribute
are several in proportion to their respective underwriting obligations with
respect to such Securities and not joint.
(e) The obligations of the Company and Sallie Mae
under this Section 8 shall be in addition to any liability which the Company
and Sallie Mae may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
8 shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company or Sallie Mae and to each person, if any,
who controls the Company or Sallie Mae within the meaning of the Act.
9. (a) If any Underwriter shall default in its
obligation to purchase the Underwriters' Securities which it has agreed to
purchase under the Pricing Agreement relating to such Underwriters' Securities,
the Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Underwriters' Securities on the terms
contained herein and therein. If within thirty-six hours after such default by
any Underwriter the Representatives do not arrange for the purchase of such
Underwriters' Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Underwriters'
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Underwriters' Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Underwriters'
Securities, the Representatives or the Company shall have the right to postpone
the Time of Delivery for such Underwriters' Securities for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for
the purchase of the Underwriters' Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate amount of such Underwriters' Securities which remains
unpurchased does not exceed one-eleventh of the aggregate amount of the
Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the amount of Underwriters' Securities
which such Underwriter agreed to
15
<PAGE> 16
purchase under the Pricing Agreement relating to such Designated Securities
and, in addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Underwriters' Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for
the purchase of the Underwriters' Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate amount of Underwriters' Securities which remains
unpurchased exceeds one-eleventh of the aggregate amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Underwriters' Securities of a defaulting Underwriter
or Underwriters, then the Pricing Agreement relating to such Designated
Securities shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements,
representations, warranties and other statements of the Company, Sallie Mae and
the several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company or Sallie Mae or any officer or
director or controlling person of the Company or Sallie Mae, and shall survive
delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated
pursuant to Section 9 hereof, the Company and Sallie Mae shall not then be
under any liability to any Underwriter with respect to the Designated
Securities covered by such Pricing Agreement except as provided in Sections 6
and 8 hereof; but, if for any other reason Underwriters' Securities are not
delivered by or on behalf of the Company as provided herein, except for any of
the reasons specified in Section 7(j), the Company and Sallie Mae will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Securities,
but the Company and Sallie Mae shall then be under no further liability to any
Underwriter with respect to such Designated Securities except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives
of the Underwriters of Designated Securities shall act on behalf of each of
such Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the Pricing
Agreement.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Company or Sallie Mae shall
be delivered or sent by mail, telex or facsimile transmission to:
SLM Funding Corporation
777 Twin Creek Drive
16
<PAGE> 17
Kileen, Texas 76543
Facsimile: (817) 554-4999
Attention: Phyllis A. Leeth
Vice President
Student Loan Marketing Association
1050 Thomas Jefferson Street, NW
Washington, DC 20007-3781
Facsimile: (202) 298-2726
Attention: Robert R. Levine
Vice President and Treasurer
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire,
or telex constituting such Questionnaire, which address will be supplied to the
Company or Sallie Mae by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall
be binding upon, and inure solely to the benefit of, the Underwriters, the
Company, Sallie Mae and, to the extent provided in Sections 8 and 10 hereof,
the officers and directors of the Company and Sallie Mae and each person who
controls the Company, Sallie Mae or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any
such Pricing Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of each Pricing
Agreement. As used herein, "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business and "New York
Business Day" shall mean any day when banking institutions are open for
business in New York City, New York.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
16. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
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<PAGE> 18
IF THE FOREGOING IS IN ACCORDANCE WITH YOUR UNDERSTANDING,
PLEASE SIGN AND RETURN TO US ___ COUNTERPARTS HEREOF.
Very truly yours,
SLM FUNDING CORPORATION
By: /s/ Denise B. McGlone
----------------------
Name:
Title:
STUDENT LOAN MARKETING ASSOCIATION
By: /s/ Robert R. Levine
---------------------
Name:
Title:
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
-------------------------
(Goldman, Sachs & Co.)
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<PAGE> 19
ANNEX I
PRICING AGREEMENT
_________________________
AS REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS NAMED ON SCHEDULE I HERETO,
C/O_______________________
__________________________
__________________________
, 1995
Ladies and Gentlemen:
SLM Funding Corporation, a Delaware corporation (the "Company"),
and the Student Loan Marketing Association, a corporation formed under the laws
of the United States ("Sallie Mae"), propose, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated __________,
199__ (the "Underwriting Agreement"), between the Company and Sallie Mae, on
the one hand, and _______________ and ________________, on the other hand, that
the Company will cause the trust (the "Trust") formed pursuant to the Trust
Agreement dated _______, 199__ between the Company and _______, as trustee (the
"Eligible Lender Trustee"), to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Student Loan-Backed Certificates
(the "Certificates") specified in Schedule II hereto (the "Designated
Securities"). The Certificates will be issued pursuant to the Trust Agreement.
Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives
herein and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement and the address
of the Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
<PAGE> 20
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
cause the Trust to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto, less the amount of Designated
Securities covered by Delayed Delivery Contracts, if any, as may be specified
in Schedule II.
During the period beginning from the date of this Pricing
Agreement for the Designated Securities and continuing to and including the
later of (i) [___ days after] the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives and
(ii) [__ days after] the Time of Delivery for such Designated Securities, the
Company agrees, and Sallie Mae agrees that it will cause the Company, not to,
and not to permit any affiliated entity to, offer, sell, contract to sell or
otherwise dispose of, any securities (other than the Designated Securities)
evidencing an ownership in, or any securities (other than the related Notes)
collateralized by, Student Loans, without the prior written consent of the
Representatives.
Each Underwriter represents and agrees that (a) it has not
offered or sold and will not offer or sell any Notes or Certificates to persons
in the United Kingdom prior to the expiration of the period of six months from
the issue date of the Notes and the Certificates except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (b) it has complied and will comply with
all applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Notes and the Certificates in, from or
otherwise involving the United Kingdom; and (c) it has only issued or passed on
and will only issue or pass on in the United Kingdom any document received by
it in connection with the issuance of the Notes and the Certificates to a
person who is of a kind described in article 11(3) of the Financial Services
Act 1986 (Investment Advertisements) (Exemptions) Order 1995 or is a person to
whom such document may otherwise lawfully be issued or passed on.
If the foregoing is in accordance with your understanding,
please sign and return to us ______ counterparts hereof, and upon acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between
each of the Underwriters and the Company and Sallie Mae. It is understood that
your acceptance of this letter on behalf of each of the Underwriters is or will
be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company and Sallie
Mae for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
SLM FUNDING CORPORATION
By:
---------------------------------
Name:
2
<PAGE> 21
Title:
STUDENT LOAN MARKETING ASSOCIATION
By:
---------------------------------
Name:
Title:
3
<PAGE> 22
Accepted as of the date hereof:
[______________________]
By:
-------------------------------------
[______________________]
By:
-------------------------------------
Name:
Title:
On behalf of each of the Underwriters
4
<PAGE> 23
SCHEDULE I
AMOUNT OF DESIGNATED SECURITIES TO BE PURCHASED
UNDERWRITER CLASS ___ CLASS ___ CLASS ___
<PAGE> 24
SCHEDULE II
TITLE OF EACH CLASS OF DESIGNATED SECURITIES:
AGGREGATE AMOUNT OF EACH CLASS:
PRICE TO PUBLIC OF EACH CLASS:
PURCHASE PRICE BY UNDERWRITERS OF EACH CLASS:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
INDENTURE:
MATURITY:
RETURN RATE:
FORM OF DESIGNATED SECURITIES:
TIME OF DELIVERY:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
<PAGE> 25
ANNEX II(a)
UNDERWRITER: COUNSEL OPINION
<PAGE> 26
ANNEX II(b)
THE COMPANY, SALLIE MAE AND THE SERVICER: INTERNAL COUNSEL OPINION
<PAGE> 27
ANNEX II(c)
THE COMPANY, SALLIE MAE AND THE SERVICER: OUTSIDE COUNSEL OPINION
<PAGE> 28
ANNEX II(d)
ELIGIBLE LENDER TRUSTEE/INTERIM ELIGIBLE LENDER TRUSTEE: COUNSEL OPINION
<PAGE> 29
ANNEX II(e)
INDENTURE TRUSTEE: COUNSEL OPINION
<PAGE> 30
ANNEX III
DELAYED DELIVERY CONTRACT
SLM FUNDING CORPORATION
C/O_________________________
____________________________
Attention: , 19
----------------------------- --------------- --
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SLM Funding
Corporation (hereinafter called the "Company"), and the Company agrees to sell
to the undersigned,
$.........
principal amount of the Company's ________ (hereinafter called the "Designated
Securities"), offered by the Company's Prospectus, dated .............., 19..,
as amended or supplemented, receipt of a copy of which is hereby acknowledged,
at a purchase price of .....% of the amount thereof, plus accrued interest from
the date from which interest accrues as set forth below, and on the further
terms and conditions set forth below.
The undersigned will purchase the Designated Securities from the
Company on .............., 19.. (the "Delivery Date") and interest on the
Designated Securities so purchased will accrue from .............., 19...
[THE UNDERSIGNED WILL PURCHASE THE DESIGNATED SECURITIES FROM
THE COMPANY ON THE DELIVERY DATE OR DATES AND IN THE AMOUNT OR AMOUNTS SET
FORTH BELOW:
<TABLE>
<CAPTION>
DATE FROM WHICH
DELIVERY DATE AMOUNT INTEREST ACCRUES
------------- ------ ----------------
<S> <C> <C>
, 19 $ , 19
--------------------- -- ------------- --------------------- --
, 19 $ , 19
--------------------- -- ------------- --------------------- --
</TABLE>
EACH SUCH DATE ON WHICH DESIGNATED SECURITIES ARE TO BE PURCHASED HEREUNDER IS
HEREINAFTER REFERRED TO AS A "DELIVERY DATE."(4)]
Payment for the Designated Securities which the undersigned has
agreed to purchase on [THE] [EACH] Delivery Date shall be made to the Company
or its order by certified or official bank check in .......... Clearing House
funds at the office of .........., ........., .........., or by wire transfer
to a bank account specified by the Company, on [THE] [SUCH] Delivery Date upon
delivery to the undersigned of the Designated Securities then to be purchased
by the undersigned in definitive fully registered form and in such
denominations and registered in such names as the undersigned may designate by
written, telex or facsimile communication addressed to the Company not less
than five full business days prior to [THE] [SUCH] Delivery Date.
<PAGE> 31
The obligation of the undersigned to take delivery of and make
payment for Designated Securities on [THE] [EACH] Delivery Date shall be
subject to the condition that the purchase of Designated Securities to be made
by the undersigned shall not on [THE] [SUCH] Delivery Date be prohibited under
the laws of the jurisdiction to which the undersigned is subject. The
obligation of the undersigned to take delivery of and make payment for
Designated Securities shall not be affected by the failure of any purchaser to
take delivery of and make payment for Designated Securities pursuant to other
contracts similar to this contract.
[THE UNDERSIGNED UNDERSTANDS THAT UNDERWRITERS (THE
"UNDERWRITERS") ARE ALSO PURCHASING DESIGNATED SECURITIES FROM THE COMPANY, BUT
THAT THE OBLIGATIONS OF THE UNDERSIGNED HEREUNDER ARE NOT CONTINGENT ON SUCH
PURCHASES]. Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the Opinion of Counsel for the
Company delivered to the Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of
this contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in
any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same
instrument.
F-2
<PAGE> 32
It is understood that the acceptance by the Company of any
Delayed Delivery Contract (including this contract) is in the Company's sole
discretion and that, without limiting the foregoing, acceptances of such
contracts need not be on a first-come, first-served basis. If this contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned when such counterpart is so
mailed or delivered by the Company.
Yours very truly,
------------------------------------
By:
--------------------------------
(Authorized Signature)
Name:
Title:
------------------------------------
(Address)
Accepted: , 19
--------------------------- --
SLM FUNDING CORPORATION
By:
----------------------------------------
Name:
Title:
F-3
<PAGE> 1
EXHIBIT 4.1
===============================================================================
TRUST AGREEMENT
between
SLM FUNDING CORPORATION,
as Depositor
and
THE CHASE MANHATTAN BANK (USA),
not in its individual capacity but solely
as Eligible Lender Trustee
Dated as of July 1, 1996
===============================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
Section 1.1 Definitions and Usage . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
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 Certificateholders . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.8 Title to Trust Property . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.9 Representations and Warranties of the Depositor . . . . . . . . . . . . . . . 4
SECTION 2.10 Application of Trust Funds . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.11 Required Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
SECTION 3.1 Initial Beneficial Ownership . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.2 The Trust Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.3 Authentication of Trust Certificates . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.4 Registration of Transfer and Exchange
of Trust Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen
Trust Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.6 Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.7 Access to List of Certificate holders' Names and Addresses . . . . . . . . . 10
SECTION 3.8 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.9 Appointment of Certificate Paying
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.10 Disposition by Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.11 Book-Entry Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.12 Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.13 Definitive Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
ARTICLE IV
SECTION 4.1 Prior Notice to Certificateholders
With Respect to Certain Matters . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.2 Action by Certificateholders with
Respect to Certain Matters . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.3 Action by Certificateholders with
Respect to Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.4 Restrictions on Certificateholders'
Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.5 Majority Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE V
SECTION 5.1 Application of Trust Funds . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.2 Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.3 No Segregation of Moneys; No Interest . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.4 Accounting and Reports to the Note-
holders, Certificateholders, the
Internal Revenue Service and Others . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.5 Signature on Returns; Tax Matters
Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.6 Capital Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI
SECTION 6.1 General Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6.2 General Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 6.3 Action upon Instruction . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.4 No Duties Except as Specified in
this Agreement or in Instructions . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.5 No Action Except Under Specified
Documents or Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 6.6 Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE VII
SECTION 7.1 Acceptance of Trusts and Duties . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 7.2 Furnishing of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 7.3 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.4 Reliance; Advice of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.5 Not Acting in Individual Capacity . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 7.6 Eligible Lender Trustee Not Liable
for Trust Certificates or Trust
Student Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 7.7 Eligible Lender Trustee May Own
Trust Certificates and Notes . . . . . . . . . . . . . . . . . . . . . . . . . 27
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE VIII
SECTION 8.1 Eligible Lender Trustee's Fees and Expenses . . . . . . . . . . . . . . . . . 27
SECTION 8.2 Payments to the Eligible Lender
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 8.3 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE IX
SECTION 9.1 Termination of Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 9.2 Dissolution upon Insolvency of
the Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE X
SECTION 10.1 Eligibility Requirements for Eligible Lender Trustee . . . . . . . . . . . . 30
SECTION 10.2 Resignation or Removal of Eligible
Lender Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 10.3 Successor Eligible Lender Trustee . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 10.4 Merger or Consolidation of Eligible
Lender Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 10.5 Appointment of Co-Eligible Lender
Trustee or Separate Eligible Lender
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE XI
SECTION 11.1 Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 11.2 No Legal Title to Trust Estate in
Certificateholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 11.3 Limitations on Rights of Others . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 11.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 11.5 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 11.6 Separate Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 11.7 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 11.8 No Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 11.9 No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 11.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 11.11 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Exhibit A Form of Trust Certificate
Exhibit B Form of Certificate Depository Agreement
</TABLE>
Annex 1 to Trust Agreement
iii
<PAGE> 5
TRUST AGREEMENT dated as of July 1, 1996, between SLM FUNDING
CORPORATION, a Delaware corporation, as Depositor, and THE CHASE MANHATTAN BANK
(USA), a Delaware State banking corporation, not in its individual capacity but
solely as Eligible Lender Trustee.
The Depositor and the Eligible Lender Trustee hereby agree as follows:
ARTICLE I
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 1996-3", 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 sue and be
sued. The Trust shall constitute a business trust within the meaning of
Section 3801(a) of the Delaware Business Trust Act for which the 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 Business 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
Certificateholders and 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
Trust Certificates pursuant to this Agreement and to sell the Notes and
the Trust Certificates in one or more transactions;
(ii) with the proceeds of the sale of the Notes and the
Trust Certificates, to fund the Reserve Account pursuant to
<PAGE> 6
Section 2.8 of the Administration Agreement and to purchase the Trust
Student Loans pursuant to the Sale Agreement;
(iii) to Grant the Trust Estate to the Indenture Trustee
pursuant to the Indenture, and to hold, manage and distribute to the
Certificateholders 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
Certificateholders, the Noteholders and the others specified in Section
2.7 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 $1.00. 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
Certificateholders, subject to the obligations of the Trust under the other
Basic Documents. It is
2
<PAGE> 7
the intention of the parties hereto that the Trust constitute a business trust
under Delaware law and that this Agreement constitute the governing instrument
of such trust. It is the intention of the parties hereto that, solely for
income tax purposes, the Trust shall be treated as a partnership, with the
assets of the partnership being the Trust Student Loans and other assets held
by the Trust, the partners of the partnership being the Certificateholders
(including the Depositor in its capacity as Certificateholder and as recipient
of distributions from the Reserve Account), and the Notes being debt of the
partnership. The parties agree that, unless otherwise required by appropriate
tax authorities, the Trust will file or cause to be filed annual or other
necessary returns, reports and other forms consistent with the characterization
of the Trust as a partnership for such tax purposes. 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 Certificateholders.
(a) Notwithstanding the provisions of Section 3803 of the Delaware
Business Trust Act, the Depositor shall be liable directly to
and shall indemnify the injured party 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
Certificateholder. 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. The obligations of the Depositor under this
paragraph shall be evidenced by the Trust Certificates
described in Section 3.10, which shall be deemed to be a
separate class of Trust Certificates from all other Trust
Certificates issued by the Trust; provided that the rights and
obligations evidenced by all Trust Certificates, regardless of
class, except as provided in Section 3.10 and this Section,
shall be identical.
(b) No Certificateholder, other than to the extent set forth in
paragraph (a), shall have any personal liability for any
liability or obligation of the Trust.
3
<PAGE> 8
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 corporation 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 corporate power and authority to execute
and deliver this Agreement and to carry out its terms; the
Depositor has full corporate 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
corporate action; and the execution, delivery and performance
of this Agreement has been duly authorized by the Depositor by
all necessary corporate action.
(c) This Agreement constitutes a legal, valid and binding
obligation of the Depositor enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency,
reorganization and similar laws relating to creditors' rights
generally and subject to general principles of equity.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse
of time or both) a default under, the certificates of
incorporation or by-laws of the Depositor, or any indenture,
agreement
4
<PAGE> 9
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 of
the Certificate Holders that it will comply with each of the
requirements set forth in Article IX, X, and XII of its
Certificate of Incorporation and with each of the undertakings
set forth in Annex I hereto.
SECTION 2.10 Application of Trust Funds.
(a) Income and Loss Allocations. After giving effect to the
special allocations set forth in subparagraph (b) of this
Section 2.10 and for purposes of maintaining Capital Accounts
under Section 5.6, gross income items of the Trust for any
Accrual Period as determined for Federal income tax purposes
shall be allocated as follows:
(1) first, among the Certificateholders as of the
close of business on the last day of such Accrual
Period, in proportion to the Certificate Balance of
the Certificates owned by them on such date, an amount
of gross income up to the sum of (i) the portion of
the Certificateholders' Return Distribution Amount and
the Certificate Return Carryover, if any, for the
related Distribution Date allocable to such Accrual
Period, (ii) return on the excess, if any, of the
Certificateholders' Return Distribution Amount for the
preceding Distribution Date over the amount in respect
of return on the Certificates that is actually
distributed to Certificateholders on such preceding
Distribution Date, to the extent permitted by law, at
the Certificate Rate for such Accrual Period and (iii)
the portion of the market discount on the Trust
Student Loans accrued during such Accrual Period that
is allocable to the excess, if any, of the initial
aggregate principal amount of the Certificates over
their initial aggregate issue price; and
(2) the balance of Profits, if any, to the
Depositor.
If the items of gross income of the Trust for any month are
insufficient for the allocations described in
5
<PAGE> 10
clause (1) above, subsequent items of gross income shall first
be allocated to make up such shortfall before Profits are
allocated as provided in clause (b). Loss of the Trust for
any Accrual Period shall be allocated to the Depositor to the
extent the Depositor is reasonably expected to bear the
economic burden of such Loss, and any remaining Loss shall be
allocated among the Certifi cateholders as of the close of
business on the last day of such Accrual Period in proportion
to the Certificate Balance of Trust Certificates owned by them
on such date. If any items of loss or deduction are allocated
to Certificateholders and the Depositor subsequently
determines that the economic loss to Certificateholders will
be less than was expected at the time such allocations were
made, additional items of gross income will be allocated to
Certificateholders in subsequent periods to offset the excess
allocations of losses and deductions to Certificateholders
before any Profits are allocated to the Depositor as provided
in clause (2) above.
(b) Special Allocations.
(1) In the event any Certificateholder
unexpectedly receives any adjustments, allocations or
distributions described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Trust
income and gain shall be specially allocated to such
Certificateholder in an amount and manner sufficient
to eliminate, to the extent required by the Treasury
Regulations, the deficit, if any, in the balance of
the Capital Account of such Certificateholder as
quickly as possible. This Section 2.10(b) is intended
to comply with the qualified income offset provision
in Section 1.704-1(b)(2)(ii)(d) of the Treasury
Regulations.
(2) In the event the initial issue price of
Certificates differs from their initial Certificate
Balance, there shall be specially allocated to the
Certificateholders the portion, if any, of the offset
for premium (in the case the issue price of the
Certificates exceeds the Certificate Balance) on the
Trust Student Loans accruing for a calendar month that
is attributable to such difference.
(c) Liquidating Profit or Loss. Liquidating Profit or Loss
shall be allocated, after all other adjustments are made to
the Capital Accounts (including adjustments to reflect the
Liquidating Distribution), as follows:
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(1) First, among the Certificateholders in
proportion to their ownership of the principal amount
of Certificates, in an amount that would cause their
Capital Account balances to equal zero (in the case of
the Depositor, taking into account the Capital Account
balance of the Depositor only to the extent it relates
to Certificates owned by the Depositor); and
(2) Any balance, to the Depositor.
(d) Tax Allocations. For Federal income tax purposes, each item
of income, gain, loss and deduction of the Trust shall be
allocated among the Certificateholders and the Depositor in a
manner consistent with the allocations set forth in this
Section 2.10, subject to the provisions of Section 704(c) of
the Code. Notwithstanding anything to the contrary set forth
in this Agreement, the Deposi tor is authorized to modify the
allocations of this Section 2.10(d) and Sections 2.10(a), (b)
and (c) if necessary or appropriate, in the Depositor's sole
discretion, for the allocations to fairly reflect the economic
gain, income or loss to the Depositor or the
Certificateholders, or as otherwise required by the Code or
the Treasury Regulations.
SECTION 2.11 Required Net Worth. For so long as any Notes or
Certificates shall remain outstanding, the Depositor shall take all actions
necessary to maintain its net worth (exclusive of its interest in the Trust)
equal to $2,637,500 or such other amount as satisfies the then existing
Internal Revenue Service guidelines concerning the net worth requirements for
general partners of partnerships, as set forth in Revenue Procedure 92-88 or
successor pronouncements.
ARTICLE III
Trust Certificates and Transfer of Interests
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 Trust Certificates, the Depositor shall be the sole
beneficial owner of the Trust.
SECTION 3.2 The Trust Certificates. The Trust Certificates shall
be issued in denominations of $100,000 or in integral multiples of $500 in
excess thereof. The Trust Certificates shall be executed on behalf of the
Trust by manual or facsimile signature of an authorized officer of the Eligible
Lender Trustee. Trust Certificates bearing the manual or facsimile
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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 Trust Certificates or did not hold such offices at the date of
authentication and delivery of such Trust Certificates.
SECTION 3.3 Authentication of Trust Certificates. Concurrently
with the sale of the Trust Stu dent Loans to the Trust pursuant to the Purchase
Agreement, the Eligible Lender Trustee shall cause the Trust Certificates in an
aggregate principal amount equal to the Initial Certificate Balance 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, in
authorized denominations. No Trust Certificate shall entitle its holder to any
benefit under this Agreement, or shall be valid for any purpose, unless there
shall appear on such Trust Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Eligible
Lender Trustee or The Chase Manhattan Bank (N.A.), as the Eligible Lender
Trustee's authenticating agent, by manual signature; such authentication shall
constitute conclusive evidence that such Trust Certificate shall have been duly
authenticated and delivered hereunder. All Trust Certificates shall be dated
the date of their authentication. No further Trust Certificates shall be
issued except pursuant to Section 3.4, 3.5 or 3.13 hereunder.
SECTION 3.4 Registration of Transfer and Exchange of Trust
Certificates. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.8, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Eligible
Lender Trustee shall provide for the registration of Trust Certificates and of
transfers and exchanges of Trust Certificates as herein provided. The Chase
Manhattan Bank (N.A.) shall be the initial Certificate Registrar.
Upon surrender for registration of transfer of any Trust Certificate at
the office or agency maintained pursuant to Section 3.8, the Eligible Lender
Trustee shall execute, authenticate and deliver (or shall cause The Chase
Manhattan Bank (N.A.) as its authenticating agent to authenti cate and
deliver), in the name of the designated transferee or transferees, one or more
new Trust Certificates in authorized denominations of a like aggregate amount
dated the date of authentication by the Eligible Lender Trustee or any
authenticating agent. At the option of a Certificateholder, Trust Certificates
may be exchanged for other Trust Certificates of authorized denominations of a
like
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aggregate amount upon surrender of the Trust Certificates to be exchanged at
the office or agency maintained pursuant to Section 3.8.
Every Trust 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 Certificate
Registrar duly executed by the Certificateholder or his attor ney 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. Each Trust
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 Trust Certificates, but the Eligible Lender Trustee or the
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 Trust Certificates.
The preceding provisions of this Section notwithstanding, the Eligible
Lender Trustee shall not be required to make and the Certificate Registrar need
not register transfers or exchanges of Trust Certificates for a period of 15
days preceding any Distribution Date with respect to the Trust Certificates.
The Trust Certificates and any beneficial interest in such Trust
Certificates 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 Keogh plans, or
(c) entities whose underlying assets include plan assets by reason of a plan's
investment in such entities (each, a "Benefit Plan"). By accepting and holding
a Trust Certificate or an interest therein, the Certificateholder thereof or
Certificate Owner thereof shall be deemed to have repre sented and warranted
that it is not a Benefit Plan, is not purchasing Trust Certificates on behalf
of a Benefit Plan and is not using assets of a Plan to purchase any
Certificates.
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Trust
Certificates. If (a) any mutilated Trust Certificate shall be surrendered to
the Certificate Registrar, or if the Certificate Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Certificate, and (b) there shall be delivered to the 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,
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then in the absence of notice that such Trust 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 Trust Certificate, a new Trust Certificate of like tenor and
denomination. In connection with the issuance of any new Trust Certificate
under this Section, the Eligible Lender Trustee and the 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 dupli
cate Trust Certificate issued pursuant to this Section shall constitute
conclusive evidence of ownership in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Trust Certificate shall be found at any
time.
SECTION 3.6 Persons Deemed Owners. Prior to due presentation of
a Trust Certificate for registration of transfer, the Eligible Lender Trustee
and the Certificate Registrar and any agent of either of them may treat the
Person in whose name any Trust Certificate shall be registered in the
Certificate Register as the owner of such Trust Certificate for the purpose of
receiving distributions pursuant to Section 5.1 and for all other purposes
whatsoever, and neither the Eligible Lender Trustee, the Certificate Registrar
nor any agent thereof shall be bound by any notice to the contrary.
SECTION 3.7 Access to List of Certificateholders' Names and
Addresses. The Eligible Lender Trustee shall furnish or cause to be furnished
to the Depositor, within 15 days after receipt by the Eligible Lender Trustee
of a request therefor from the Depositor in writing, a list, in such form as
the Depositor may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders or one or more Certifi cateholders evidencing not less than
25% of the Certificate Balance apply in writing to the Eligible Lender Trustee,
and such application states that the applicants desire to communicate with
other Certificateholders with respect to their rights under this Agreement or
under the Trust Certificates and such application is accompanied by a copy of
the communication that such applicants propose to transmit, then the Eligible
Lender Trustee shall, within five Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
current list of Certificateholders. Upon receipt of any such application, the
Eligible Lender Trustee shall promptly notify the Depositor by providing a copy
of such application and a copy of the list of Certificateholders produced in
response thereto. Each Certificateholder, by receiving and holding a Trust
Certificate, shall be deemed to have agreed not to hold any of the Depositor,
the Certificate Registrar or the Eligible Lender Trustee accountable by reason
of the disclosure of its name and
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address, regardless of the source from which such information was de rived.1.
SECTION 3.8 Maintenance of Office or Agency. The Eligible Lender
Trustee shall maintain in the Borough of Brooklyn, The City of New York, an
office or offices or agency or agencies where Trust Certificates 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 Trust
Certificates and the other Basic Documents may be served. The Eligible Lender
Trustee initially designates 802 Delaware Avenue, Wilmington, Delaware, as its
principal Corporate Trust Office. The Eligible Lender Trustee's New York
office and its authenticating agent's office are located at 4 Chase Metro Tech
Center, 3rd Floor, Brooklyn, New York 11245, Attention: Corporate Trust
Department. The Eligible Lender Trustee shall give prompt written notice to
the Depositor and to the Certificateholders of any change in the location of
the Certificate Register or any such office or agency.
SECTION 3.9 Appointment of Certificate Paying Agent. The
Certificate Paying Agent shall make distributions to Certificateholders from
the amounts received from the Indenture Trustee out of the Trust Accounts
pursuant to Section 5.1 and shall report the amounts of such distri butions to
the Eligible Lender Trustee. Any 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 Certificate Paying Agent if the
Eligible Lender Trustee determines in its sole discretion that the Certificate
Paying Agent shall have failed to perform its obligations under this Agreement
in any material respect. The Certificate Paying Agent shall initially be the
Eligible Lender Trustee, and any co-paying agent chosen by the Eligible Lender
Trustee and consented to by the Adminis trator (which consent shall not be
unreasonably withheld). The Eligible Lender Trustee shall be permitted to
resign as Certificate Paying Agent upon 30 days' written notice to the Eligible
Lender Trustee. In the event that the Eligible Lender Trustee shall no longer
be the Certificate Paying Agent, the Eligible Lender Trustee shall appoint a
successor to act as Certificate Paying Agent (which shall be a bank or trust
company). The Eligible Lender Trustee shall give notice to the Rating Agencies
of the appointment of a successor Paying Agent. The Eligible Lender Trust ee
shall cause such successor Certificate Paying Agent or any additional
Certificate Paying Agent appointed by the Eligible Lender Trustee to execute
and deliver to the Eligible Lender Trustee an instrument in which such
successor Certificate Paying Agent or additional Certificate Paying Agent shall
agree with the Eligible Lender Trustee that as Certificate Paying Agent, such
successor Certificate Paying Agent or additional Certificate Paying Agent will
hold all sums, if
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any, held by it for payment to the Certificateholders in trust for the benefit
of the Certificate holder entitled thereto until such sums shall be paid to
such Certificateholder. The Certificate Paying Agent shall return all
unclaimed funds to the Eligible Lender Trustee and upon removal of a
Certificate Paying Agent such Certificate Paying Agent shall also return all
funds in its possession to the Eligible Lender Trustee. The provisions of
Sections 7.1, 7.3, 7.4, 7.5 and 8.1 shall apply to the Eligible Lender Trustee
also in its role as Certificate Paying Agent, for so long as the Eligible
Lender Trustee shall act as Certificate Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in
this Agreement to the Cer tificate Paying Agent shall include any copaying
agent unless the context requires otherwise.
SECTION 3.10 Disposition by Depositor. On and after the Closing
Date, the Depositor shall retain beneficial and record ownership of Trust
Certificates representing at least 1% of the Certif icate Balance. Any
attempted transfer of any Trust Certificate that would reduce such interest of
the Depositor below 1% of the Certificate Balance shall be void. The Eligible
Lender Trustee shall cause any Trust Certificate issued to the Depositor on the
Closing Date (and any Trust Certificate issued in exchange therefor) to contain
a legend stating "THIS CERTIFICATE IS NONTRANSFERABLE". The right of the
Depositor to receive the amounts payable to it in accordance with Sections
2.8D(D) and 2.8E of the Administration Agreement shall not be transferable or
assignable by the Depositor.
SECTION 3.11 Book-Entry Certificates. The Trust Certificates, upon
original issuance, will be issued in the form of a typewritten Trust
Certificate or Trust Certificates representing Book- Entry Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust; provided, however, that one Definitive Certificate (as
defined below) may be issued to the Depositor pursuant to Section 3.10. Such
Book-Entry Certificate or BookEntry Certificates shall initially be registered
on the Certificate Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Certificate owner (other than the Depositor)
will receive a Definitive Certificate representing such Certificate Owner's
interest in such Trust Certificate, except as provided in Section 3.13. Unless
and until definitive, fully registered Trust Certificates (the "Definitive
Certificates") have been issued to Certificate owners pursuant to Section 3.13:
(i) the provisions of this Section shall be in full force
and effect;
(ii) the Certificate Registrar and the Eligible Lender
Trustee shall be entitled to deal with the Clearing Agency
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for all purposes of this Agreement (including the payment of principal
of and interest on the Trust Certificates and the giving of instruc
tions or directions hereunder) as the sole Certificateholder and shall
have no obligation to the Certificate owners;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Agreement, the provisions of
this Section shall control;
(iv) the rights of Certificate Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law and agreements between such Certificate Owners and
the Clearing Agency and/or the Clearing Agency Partici pants. Pursuant
to the Certificate Depository Agreement, unless and until Definitive
Certificates are issued pursuant to Section 3.13, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit distribution in respect of the
Certificate Balance and return on the Trust Certificates to such
Clearing Agency Participants; and
(v) whenever this Agreement requires or permits actions to
be taken based upon instructions or directions of Certificateholders of
Trust Certificates evidencing a specified percentage of the Certificate
Balance, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to such
effect from Certificate Owners and/or Clearing Agency Participants
owning or representing, respectively, such required percentage of the
beneficial interest in the Trust Certificates and has delivered such
instructions to the Eligible Lender Trustee.
SECTION 3.12 Notices to Clearing Agency. Whenever a notice or
other communication to the Certificateholders is required under this Agreement,
unless and until Definitive Certificates shall have been issued to Certificate
Owners pursuant to Section 3.13, the Eligible Lender Trustee shall give all
such notices and communications specified herein to be given to
Certificateholders to the Clearing Agency, and shall have no obligations to the
Certificate Owners.
SECTION 3.13 Definitive Certificates. If (i) the Administrator
advises the Eligible Lender Trustee in writing that the Clearing Agency is no
longer willing or able to discharge properly its responsibilities with respect
to the Trust Certificates, and the Administrator is unable to locate a
qualified successor, (ii) the Administrator at its option advises the Eligible
Lender Trustee in writing that it elects to terminate the book-entry system
through the Clearing Agency or
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(iii) after the occurrence of an Event of Default, a Servicer Default or an
Administrator Default, Certificate Owners representing beneficial interests
aggregating at least a majority of the Certificate Balance advise the Clearing
Agency (which shall then notify the Eligible Lender Trustee) in writing that
the continuation of a book-entry system through the Clearing Agency is no
longer in the best interest of the Certificate Owners, then the Eligible Lender
Trustee shall cause the Clearing Agency to notify all Certificate Owners of the
occurrence of any such event and of the availabili ty of the Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to the
Eligible Lender Trustee of the typewritten Trust Certificate or Trust
Certificates representing the Book-Entry Certificates by the Clearing Agency,
accompanied by registration instructions, the Eligible Lender Trustee shall
execute and authenticate the Definitive Certificates in accordance with the
instructions of the Clearing Agency. Neither the Certificate Registrar nor the
Eligible Lender Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on, such instructions. Upon the issuance of Definitive Certificates, the
Eligible Lender Trustee shall recognize the registered holders of the
Definitive Certificates as Certificateholders. The Definitive Certificates
shall, at the expense of the Depositor, be printed, lithographed or engraved
or may be produced in any other manner as is reasonably acceptable to the
Eligible Lender Trustee, as evidenced by its execution thereof.
ARTICLE IV
Actions by Eligible Lender Trustee
SECTION 4.1 Prior Notice to Certificateholders 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 Certificateholders
and each of the Rating Agencies in writing of the proposed action and the Cer
tificateholders shall not have notified the Eligible Lender Trustee in writing
prior to the 30th day after such notice is given that such Certificateholders
have withheld consent or provided alterna tive 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);
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(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not
required and such amendment materially adversely affects the
interest of theCertificateholders;
(d) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner or add any provision that
would not materially adversely affect the interests of the
Certificateholders; or
(e) the appointment pursuant to the Administration Agreement of a
successor Administrator, the appointment pursuant to the
Indenture of a successor Note Registrar, Paying Agent or
Indenture Trustee, or the appointment pursuant to this
Agreement of a successor Certificate Registrar or successor
Certificate Paying Agent, or the consent to the assignment by
the Administrator, the Note Registrar, the Paying Agent, the
Indenture Trustee, the Certificate Registrar or the Certifi
cate Paying Agent of its obligations under the Administration
Agreement, the Indenture or this Agreement, as applicable.
SECTION 4.2 Action by Certificateholders with Respect to Certain
Matters. The Eligible Lender Trustee shall not have the power, except upon the
written direction of the Certificateholders and except as expressly provided in
the Basic Documents, to sell the Trust Student Loans after the termination of
the Indenture.
SECTION 4.3 Action by Certificateholders 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 unanimous
prior approval of all Certificateholders (other than the Depositor) and the
delivery to the Eligible Lender Trustee by each such Certificateholder of a
certificate certifying that such Certificateholder reasonably believes that the
Trust is insolvent.
SECTION 4.4 Restrictions on Certificateholders' Power. The
Certificateholders shall not 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
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Eligible Lender Trustee be permitted to follow any such direction, if given.
SECTION 4.5 Majority Control. Except as expressly provided
herein, any action that may be taken by the Certificateholders under this
Agreement may be taken by the Certificateholders of Trust Certificates
evidencing a majority of the Certificate Balance. Except as expressly provided
herein, any written notice of the Certificateholders delivered pursuant to this
Agreement shall be effective if signed by Certificateholders of Trust
Certificates evidencing not less than a majority of the Certificate Balance at
the time of the delivery of such notice.
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 Certificateholders (i) the Certificateholders'
Return Distribution Amount for such Distribution Date on a pro
rata basis according to amounts payable in respect of
Certificateholders' Return Distribution Amount, (ii) the
Certificate Balance Distri bution Amount for such Distribution
Date, if any, on a pro rata basis according to amounts payable
in respect of the Certificate Balance, and (iii) the
Certificate Return Carryover for such Distribution Date, if
any, on a pro rata basis according to amounts payable in
respect of Certificate Return Carryover, as received from the
Indenture Trustee pursuant to Sections 2.7 and 2.8 of the
Administration Agreement on such Distribution Date.
(b) On each Distribution Date, the Eligible Lender Trustee shall
send to each Certificateholder the statement provided to the
Eligible Lender Trustee by the Administrator pursuant to
Section 2.9 of the Administration Agreement on such
Distribution Date.
(c) In the event that any withholding tax is imposed on the
Trust's payment (or allocations of income) to a
Certificateholder, such tax shall reduce the amount otherwise
distributable to the Certificateholder in accordance with this
Section. The Eligible Lender Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax
that is legally owed by the Trust (but such authorization
shall not prevent the Eligible Lender
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Trustee from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings). The amount
of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust to
be remitted to the appropriate taxing authority. The Eligible
Lender Trustee shall withhold or cause to be withheld at the
maximum applicable rate provided in section 1441, 1442 or 1446
of the Code with respect to all distributions made to persons
that are not known to be U.S. Persons, within the meaning of
the Code, unless it is otherwise determined in the opinion of
counsel. In the event that a Certificate holder wishes to
apply for a refund of any such withholding tax, the Eligible
Lender Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such
Certificateholder agrees to reimburse the Eligible Lender
Trustee for any out-of-pocket expenses incurred.
SECTION 5.2 Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Distribution
Date shall be made to each Certificateholder of record on the preceding Record
Date either by wire transfer, in immediately available funds, to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar appropriate written instruc tions signed by two authorized officers,
if any, at least five Business Days prior to such Distribution Date and such
Certificateholder's Trust Certificates in the aggregate evidence a denomination
of not less than $1,000,000, or, if not, by check mailed to such
Certificateholder at the address of such Certificateholder appearing in the
Certificate Register; provided, however, that, unless Definitive Certificates
have been issued pursuant to Section 3.13, with respect to Trust Certificates
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), distributions will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Notwithstanding the foregoing, the final distribution in respect of
any Trust Certificate (whether on the Certificate Final Maturity Date or
otherwise) shall be payable only upon presentation and surrender of such Trust
Certificate at the Corporate Trust Office of the Eligible Lender Trustee or
such other location specified in writing to the Certificateholder thereof.
SECITON 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
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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 Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. The Eligible
Lender Trustee shall (a) maintain (or cause to be maintained) the books of the
Trust on a calendar year basis on the accrual method of accounting, (b) deliver
(or cause to be delivered) to each Certificateholder (and to each Person who
was a Certificateholder at any time during the applicable calendar year), as
may be required by the Code and applicable Treasury Regulations, such
information as may be required (including Schedule K-1) to enable each such
Certificateholder to prepare its Federal and state income tax returns, (c) file
(or cause to be filed) such tax returns relating to the Trust (including a
partnership information return, Internal Revenue Service Form 1065), and make
such elections as may from time to time be required or appropriate under any
applicable state or Federal statute or rule or regulation thereunder so as to
maintain the Trust's characterization as a partnership for Federal income tax
purposes, (d) cause such tax returns to be signed in the manner required by law
and (e) collect (or cause to be collected) any withholding tax as described in
and in accordance with Section 5.1(c) with respect to income or distributions
to Certificateholders. The Eligible Lender Trustee shall elect under Section
1278 of the Code to include in income currently any market dis count that
accrues with respect to the Trust Student Loans. The Eligible Lender Trustee
shall not make the election provided under Section 754 of the Code. 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 Signature on Returns; Tax Matters Partner.
(a) The Eligible Lender Trustee shall sign on behalf of the Trust
the tax returns of the Trust, unless applicable law requires a
Certificateholder to sign such documents, in which case such
documents shall be signed by the Depositor.
(b) The Depositor shall be designated the "tax matters partner" of
the Trust pursuant to Section 6231(a)(7)(A) of the Code and
applicable Treasury Regulations.
SECTION 5.6 Capital Accounts. The Trust shall maintain accounts
("Capital Accounts") with respect to each Certificateholder (including the
Depositor) in accordance with the following provisions:
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(a) Each Certificateholder's Capital Account shall be increased by
the Capital Contributions (as defined below) of such
Certificateholder, such Certificateholder's distributive share
of gross income (and any Liquidating Profits) and any items in
the nature of income or gain which are specially allocated to
such Certificateholder pursuant to Section 2.10(b) of this
Agreement.
(b) Each Certificateholder's Capital Account shall be reduced by
any amount distributed to such Certificateholder (including,
in the case of the Depositor, any amount released or otherwise
distributed to the Depositor from the Reserve Account under
Sections 2.8D(D) and 2.8E of the Administration Agreement) and
such Certificateholder's distributive share of Losses and
deductions (and any Liquidating Loss), including any special
allocation pursuant to Section 2.10(b).
(c) In the event all or a portion of a Certificate is transferred
in accordance with the terms of this Agreement, the transferee
shall succeed to the Capital Account of the transferor to the
extent it related to such Certificate or a portion thereof.
(d) Notwithstanding the above, the Capital Accounts shall be
adjusted in accordance with the provisions governing the
economic rights of the Certificateholders, as set forth herein
and in the Basic Documents.
"Capital Contribution" means the amount of any cash and the fair market
value of any property contributed to the Trust by a Certificateholder
(including any amounts deemed to be contributed in connection with the original
issuance of the Certificates), including, in the case of the Depositor, the
fair market value of the Trust Student Loans deemed to be contributed by the
Depositor to the Trust, taking into account the provisions of Section
707(a)(2)(B) of the Code and the Regulations thereunder. The foregoing
provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with section 1.704-1(b)
of the Treasury Regulations and shall be interpreted in a manner consistent
therewith.
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
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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 $1,454,000,000. 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 3.2C of the Administration Agreement and other wise follow
the direction of and cooperate with the Servicer in submitting, pursuing and
col lecting 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 and the other Basic
Documents to which the Trust is a party and to administer the Trust in the
interest of the Certificateholders, 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 Admin
istration 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.
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SECTION 6.3 Action upon Instruction.
(a) [Reserved]
(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 or of 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
Certificateholders 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 Certificateholders 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 or the other Basic Documents, as it shall deem to be
in the best interests of the Certificateholders, 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 or 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 Certificateholders requesting
instruction and, to the extent that the Eligible Lender
Trustee acts or
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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 Certificateholders, and shall have
no liability to any Person for such action or inaction.
SECTION 6.4 No Duties Except as Specified in this Agreement or in
Instructions. The Eligible Lender Trustee shall not have any duty or
obligation to manage, make any payment with respect to, register, record, sell,
service, dispose of or otherwise deal with the Trust Estate, or to otherwise
take or refrain from taking any action under, or in connection with, any
document contemplated hereby to which the Eligible Lender Trustee is a party,
except as expressly provided by the terms of this Agreement or in any document
or written instruction received by the Eligible Lender Trustee pursuant to
Section 6.3; and no implied duties or obligations shall be read into this
Agreement or any other Basic Document against the Eligible Lender Trustee. The
Eligible Lender Trustee shall have no responsibility for filing any financing
or continuation 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, The Chase Manhattan Bank
(USA) 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
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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. The
Certificateholders shall not 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 represen tation 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 in structions of the Administrator or
any Certificateholder;
(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;
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(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 Trust Certificates, and the Eligible
Lender Trustee shall in no event assume or incur any
liability, duty, or obligation to any Noteholder or to any
Certificateholder, 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 or any other Basic Document, at the request, order
or direction of any of the Certificateholders, unless such
Certificateholders have 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 Furnishing of Documents. The Eligible Lender Trustee
shall furnish to the Certificateholders promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Eligible Lender Trustee under the Basic Documents. On each Distribution
Date the Eligible Lender Trustee shall provide to each
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Certificateholder of record as of the related Record Date the information
provided by the Administrator to the Eligible Lender Trustee on the related
Determination Date pursuant to Section 2.9 of the Administration Agreement.
SECTION 7.3 Representations and Warranties. The Eligible Lender
Trustee hereby represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking association duly organized and validly
existing in good standing under the laws of the State of
Delaware and having 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
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to be signed by the proper party or parties. The Eligible
Lender Trustee may accept a certified copy of a resolution of
the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution
has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of
the determination of which is not specifically prescribed
herein, the Eligible Lender Trustee may for all purposes
hereof rely on a certificate, signed by the president or any
vice president or by the treasurer or other authorized
officers of the relevant party, as to such fact or matter and
such certificate shall constitute full protection to the
Eligible Lender Trustee for any action taken or omitted to be
taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and
in the performance of its duties and obligations under this
Agreement or the other Basic Documents, the Eligible Lender
Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them
and the Eligible Lender Trustee shall not be liable for the
conduct or misconduct of such agents or attorneys if such
agents or attorneys shall have been selected by the Eligible
Lender Trustee with reasonable care, and (ii) may consult with
counsel and accountants to be selected with reasonable care
and employed by it. The Eligible Lender Trustee shall not be
liable for anything done, suffered or omitted in good faith by
it in accordance with the written opinion or advice of any
such counsel or accountants and not contrary to this Agreement
or any other Basic Document.
SECTION 7.5 Not Acting in Individual Capacity. Except as provided
in this Article VII, in accepting the trusts hereby created The Chase Manhattan
Bank (USA) 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 Trust
Certificates or Trust Student Loans. The recitals contained herein and in the
Trust Certificates (other than the signature of and authentication by the
Eligible Lender Trustee on the Trust Certificates) 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
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Agreement, the Trust Certificates or any other Basic Document (other than the
signature of and authentication by the Eligible Lender Trustee on the Trust
Certificates) 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 suffi ciency of the Trust Estate or its ability to generate the payments to
be distributed to Certificate holders 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 Trust Certificates and
Notes. The Eligible Lender Trustee in its individual or any other capacity may
become the owner or pledgee of Trust Certificates or Notes and may deal with
the Depositor, the Administrator, the Indenture Trustee and the Servicer in
banking transactions with the same rights as it would have if it were not
Eligible Lender Trustee.
ARTICLE VIII
Compensation and Indemnity of Eligible Lender Trustee
SECTION 8.1 Eligible Lender Trustee's Fees and Expenses. The
Eligible Lender Trustee shall receive as compensation for its services
hereunder such fees as have been separately agreed upon before the date hereof
between the Depositor and the Eligible Lender Trustee, and the Eligible Lender
Trustee shall be entitled to be reimbursed by the Depositor, to the extent
provided in such separate agreement, for its other reasonable expenses
(including the reasonable fees and expenses of counsel and independent
accountants) hereunder.
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SECTION 8.2 Payments to the Eligible Lender Trustee. Any amounts
paid to the Eligible Lender Trustee pursuant to Section 8.1 hereof or pursuant
to Section 9 of the Sale Agreement, Section 4.2 of the Administration Agreement
or Section 4.2 of the Servicing Agreement shall be deemed not to be a part of
the Trust Estate immediately after such payment.
SECTION 8.3 Indemnity. The Depositor shall cause the
Administrator to indemnify the Eligible Lender Trustee in its individual
capacity and any of its officer, directors, employees and agents as and to the
extent provided for in Section 4.2 of the Administration Agreement.
ARTICLE IX
Termination of Trust Agreement
SECTION 9.1 Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) and the Trust shall
terminate and be of no further force or effect upon the
earlier of (i) 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 Agree ment and Article V, and (ii) the time
provided in Section 9.2. The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder,
other than the Depositor as described in Section 9.2, shall
not (x) operate to terminate this Agreement or the Trust, nor
(y) entitle such Certificateholder'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), neither the Depositor
nor any Certificateholder shall be entitled to revoke or
terminate the Trust.
(c) Notice of any termination of the Trust, specifying the
Distribution Date upon which the Certificateholders shall
surrender their Trust Certificates to the Certificate Paying
Agent for payment of the final distribution and cancellation,
shall be given promptly by the Eligible Lender Trustee by
letter to Certificateholders mailed within five Business Days
of receipt of notice of such termination from the
Administrator given pursuant to Section 6.1C of the
Administration Agreement, stating (i) the Distribution
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Date upon which final pay ment of the Trust Certificates shall
be made upon presentation and surrender of the Trust
Certificates at the office of the Certificate Paying Agent
therein designated, (ii) the amount of any such final payment
and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Trust Certificates at
the office of the Certificate Paying Agent therein specified.
The Eligible Lender Trustee shall give such notice to the
Certificate Registrar (if other than the Eligible Lender
Trustee) and the Certificate Paying Agent at the time such
notice is given to Certificateholders. Upon presentation and
surrender of the Trust Certificates, the Certificate Paying
Agent shall cause to be distributed to Certificateholders
amounts distributable on such Distribution Date pursuant to
Section 5.1.
In the event that all the Certificateholders shall not surrender their
Trust Certificates for cancellation within six months after the date specified
in the above mentioned written notice, the Eligible Lender Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Trust Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice all the Trust
Certificates shall not have been surrendered for cancellation, the Eligible
Lender Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Trust Certificates, and the cost thereof shall be paid out
of the funds and other assets that shall remain subject to this Agreement. Any
funds remaining in the Trust after exhaustion of such remedies and no later
than five years after the first such notice shall be distributed by the
Eligible Lender Trustee to the Depositor.
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 Business Trust
Act.
SECTION 9.2 Dissolution upon Insolvency of the Depositor.
Notwithstanding the provisions of Section 3808 of the Delaware Business Trust
Act, in the event that an Insolvency Event shall occur with respect to the
Depositor, (x) the Trust created hereunder shall dissolve and (y) this
Agreement shall be terminated in accordance with Section 9.1 90 days after the
date of such Insolvency Event. Promptly after the occurrence of any Insolvency
Event with respect to the Depositor, (i) the Depositor shall give the Indenture
Trustee, the Eligible Lender Trustee and each Rating Agency written notice of
such Insolvency Event, and (ii) the Eligible Lender Trustee shall, upon the
receipt of such
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written notice from the Depositor, give prompt written notice to the
Certificateholders and the Indenture Trustee, of the occurrence of such event
and of the effect of such event under this Section 9.2; provided, however, that
any failure to give a notice required by this sentence shall not prevent or
delay, in any manner, a termination of the Trust pursuant to the first sentence
of this Section 9.2. Upon a termination of the Trust pursuant to this Section,
the Eligible Lender Trustee shall direct the Indenture Trustee promptly to sell
the assets of the Trust (other than the Trust Accounts) in a commercially
reasonable manner and on commercially reasonable terms. The proceeds of such a
sale of the assets of the Trust shall be treated as collec tions under the
Administration Agreement.
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 Business
Trust Act; and (vi) having (or having a parent which has) a rating in respect
of its longterm 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 or the Certificates).
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
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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 appoint ment
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 ap pointment of any such successor
shall in no event relieve the resigning Eligible Lender Trustee from any
obligations otherwise imposed on it under the Basic Documents until such
successor has in fact assumed such appointment.
If at any time the Eligible Lender Trustee shall cease to be or shall
be likely to cease to be eligible in accordance with the provisions of Section
10.1 and shall fail to resign after written request therefor by the
Administrator, or if at any time an Insolvency Event with respect to the
Eligible Lender Trustee shall have occurred and be continuing, then the
Administrator may remove the Eligible Lender Trustee. If the Administrator
shall remove the Eligible Lender Trust ee 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 Business Trust Act. The
Administrator shall provide notice of such resignation or removal of the
Eligible Lender Trustee and to each of the Rating Agencies.
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<PAGE> 36
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 all Certificateholders, the Indenture
Trustee, the Noteholders and the Rating Agencies. If the Administrator shall
fail to mail such notice within 10 days after acceptance of appointment by the
successor Eligible Lender Trustee, the successor Eligible Lender Trustee shall
cause such notice to be mailed at the expense of the Administrator.
SECTION 10.4 Merger or Consolidation of Eligible Lender Trustee.
Any corporation into which the Eligible Lender Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Eligible Lender
Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Eligible Lender Trustee, shall, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding, be the
successor of the Eligible Lender Trustee hereunder; provided that such
corporation shall be eligible pursuant to Section 10.1; and provided further
that the Eligible Lender Trustee shall mail notice of such merger
32
<PAGE> 37
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 capaci ty, 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;
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<PAGE> 38
(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 cotrustee.
Any notice, request or other writing given to the Eligible Lender
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Arti cle. 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 or
the Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provi sions to or
changing in any manner or eliminating any of the provisions in this Agreement
or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the
interests of any Noteholder or Certificateholder.
34
<PAGE> 39
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 Noteholders of Notes evidencing not less
than a majority of the Outstanding Amount of the Notes and (ii) the
Certificateholders of Certificates evidencing not less than a majority of the
Certificate Balance, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or the
Certificateholders; 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 the
Certificateholders or (b) reduce the aforesaid percentage of the Outstanding
Amount of the Notes and the Certificate Balance required to consent to any such
amendment, without the consent of all the outstanding Noteholders and
Certificateholders.
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 each Certificateholder, the Indenture Trustee and
each of the Rating Agencies.
It shall not be necessary for the consent of Certificateholders, 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 Certificateholders provided
for in this Agreement or in any other Basic Document) and of evidencing the
autho rization of the execution thereof by Certificateholders shall be subject
to such reasonable require ments 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 Certificateholders.
The Certificateholders shall not have legal title to any part of the Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided beneficial ownership interest therein only in
accordance with Articles V and IX. No transfer, by operation of
35
<PAGE> 40
law or otherwise, of any right, title, or interest of the Certificateholders to
and in their 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 Certifi cateholders, 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 or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 11.4 Notices.
(a) 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 Corporation, 777 Twin Creek Drive, Killeen,
Texas 76543, or, as to each party, at such other address as
shall be designated by such party in a written notice to each
other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage
prepaid, at the address of such certificateholder as shown in
the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the
Certificateholder receives such notice.
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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<PAGE> 41
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 Sucessors 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
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument
or action by a Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.8 No Petition.
(a) The Depositor will not at any time institute against the Trust
any bank ruptcy proceedings under any United States Federal or
state bankruptcy or similar law in connection with any
obligations relating to the Trust Certificates, 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, each Certificateholder, by accepting a Trust
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 Trust Certificates, the Notes,
this Agreement or any of the other Basic Documents.
SECTION 11.9 No Recourse. Each Certificateholder by accepting a
Trust Certificate acknowledges that such Certificateholder's Trust Certificates
represent 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 Trust Certificates or the other Basic
Documents.
37
<PAGE> 42
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 provi sions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
38
<PAGE> 43
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.
THE CHASE MANHATTAN BANK (USA),
not in its individual
capacity but solely as
Eligible Lender Trustee,
By /s/ John W. Mack
----------------------
Name: John W. Mack
Title: Second Vice President
SLM FUNDING CORPORATION,
Depositor,
By /s/ Denise B. McGlone
----------------------
Name:
Title:
39
<PAGE> 44
EXHIBIT A
TO THE TRUST AGREEMENT
[FORM OF TRUST CERTIFICATE]
Unless this Trust Certificate is presented by an authorized
representative of The Depository Trust Company, a New York Corporation ("DTC"),
to the Issuer (as defined below) or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THIS TRUST 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 GOVERNMEN TAL AGENCY.
NUMBER $52,222,500
R-1 CUSIP NO. 78442GAF3
SLM STUDENT LOAN TRUST 1996-3
FLOATING RATE STUDENT LOAN-BACKED 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 Corporation.
(This Trust Certificate does not represent an interest in or obligation
of SLM Funding Corporation, 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 Cede & Co. is the registered owner of $52,222,500
dollars non-assessable, fully-paid, fractional undivided interest in the SLM
Student Loan Trust 1996-3 (the "Trust"), a trust formed under the laws of the
State of Delaware by SLM Funding Corporation, a Delaware corporation (the
"Depositor"). The Trust was created pursuant to a Trust Agreement dated as of
July 1, 1996 (the "Trust Agreement"), between the Depositor and The Chase
Manhattan Bank (USA), a Delaware state banking
<PAGE> 45
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.
This Certificate is one of the duly authorized Certificates designated
as "Floating Rate Student Loan-Backed Certificates" (herein called the "Trust
Certificates"). This Trust Certificate is issued under and is subject to the
terms, provi sions and conditions of the Trust Agreement, to which Trust
Agreement the holder of this Trust 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 June 17, 1996, certain bank accounts and the proceeds
thereof and certain other rights under the Trust Agreement, the Sale Agreement,
the Purchase Agreement, the Administration Agreement and the Servicing
Agreement and all proceeds of the foregoing. The rights of the holders of the
Trust Certificates to the assets of the Trust are subor dinated to the rights
of the holders of the Notes issued under the Indenture dated as of July 1,
1996, between the Trust and Bankers Trust Company, as Indenture Trustee, and
designated as "Floating Rate Student Loan-Backed Notes" (the "Notes"), as set
forth in the Trust Agreement, the Indenture and the Administration Agreement.
Under the Trust Agreement, to the extent of funds available therefor,
return on the Certificate Balance of this Trust Certificate at the Certificate
Rate (as defined below) will be distributed on the 25th day of each January,
April, July and October (or, if such 25th day is not a Business Day, the next
succeeding Business Day) (each a "Distribution Date"), commencing on October
25, 1996, to the person in whose name this Trust 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
certificateholder's pro rata interest in the amount or amounts to be
distributed to Certificateholders on such Distribution Date pursuant to the
Administration Agreement.
2
<PAGE> 46
The Certificate Rate for each Accrual Period shall be equal to the
lesser of (a) the weighted average of the T-Bill Rates within such Accrual
Period plus 0.95% per annum and (b) the Student Loan Rate for such Accrual
Period. The "Student Loan Rate" for any Accrual Period shall equal the product
of (a) the quotient obtained by dividing (i) 365 (or 366 in the case of a leap
year) by (ii) the actual number of days elapsed in such Accrual Period and (b)
the percentage equivalent of a fraction, (i) the numerator of which is equal to
Expected Interest Collections for the related Collection Period less the
Primary Servicing Fee and the Administration Fee with respect to such
Collection Period and (ii) the denominator of which is the Pool Balance as of
the first day of such Collection Period.
Each holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate from
Available Funds and amounts on deposit in the Reserve Account are subordinated
to the rights of the Noteholders as described in the Trust Agreement, the
Indenture and the Administra tion Agreement.
It is the intent of the Depositor, the Certificateholders and the
Certificate Owners that, for purposes of Federal, state and local income and
franchise and any other income taxes, the Trust will be treated as a
partnership and the Cer tificateholders (including the Depositor in its
capacity as Certificateholder and as recipient of distributions from the
Reserve Account) will be treated as partners in that partnership. The
Depositor and the other Certificateholders by acceptance of a Trust Certificate
(and the Certificate Owners by acceptance of a beneficial interest in a Trust
Certificate), agree to treat, and to take no action inconsistent with the
treatment of, the Trust Certificates for such tax purposes as partnership
interests in the Trust.
Each Certificateholder or Certificate Owner, by its acceptance of a
Trust Certificate or, in the case of a Certificate Owner, a beneficial interest
in a Trust Certificate, covenants and agrees that such Certificateholder or
Certificate Owner, as the case may be, will not at any time institute against
the Depositor or the Trust, or join in any institution against the
3
<PAGE> 47
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 Trust Certificates, the Notes, the Trust
Agreement or any of the other Basic Documents.
Distributions on this Trust Certificate will be made as provided in the
Trust Agreement by the Eligible Lender Trustee by wire transfer or by check
mailed to the Certificateholder of record in the Certificate Register without
the presentation or surrender of this Trust Certificate or the making of any
notation hereon, except that with respect to Trust Certificates registered on
the Record Date in the name of the nominee of the Clearing Agency, unless
Definitive Certificates have been issued (initially, such nominee to be Cede &
Co.), payments will be made by wire transfer in immediately available funds to
the account designated by such nominee. Except as otherwise provided in the
Trust Agreement and notwithstanding the above, the final distribution on this
Trust Certificate will be made after due notice by the Eligible Lender Trustee
of the pendency of such distribution and only upon presentation and surrender
of this Trust 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 Trust
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 Trust Certificate shall not
entitle the holder hereof to any benefit under the Trust Agreement or the
Administration Agreement or be valid for any purpose.
4
<PAGE> 48
IN WITNESS WHEREOF, the Eligible Lender Trustee on behalf of
the Trust and not in its individual capacity has caused this Trust Certificate
to be duly executed as of the date set forth below.
SLM STUDENT LOAN TRUST 1996-3
by THE CHASE MANHATTAN BANK (USA), not in its in
dividual capacity but solely
as Eligible Lender Trustee.
by
---------------------------------
Authorized Signatory
Date: July 9, 1996
5
<PAGE> 49
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned Trust
Agreement.
THE CHASE MANHATTAN BANK (USA), not in
its individual capacity but solely as
Eligible Lender Trustee,
by
-----------------------------
Authorized Signatory
OR
THE CHASE MANHATTAN BANK (USA), not in
its individual capacity but solely as
Eligible Lender Trustee,
by ,
-----------------------------
as Authenticating Agent,
Date: July 9, 1996
6
<PAGE> 50
[REVERSE OF TRUST CERTIFICATE]
The Trust Certificates do not represent an obligation of, or an
interest in, the Depositor, Sallie Mae Servicing Corporation, 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 Trust 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 Trust Agreement. A copy of each of the
Trust Agreement, the Sale Agreement, the Purchase Agreement, the Administra
tion Agreement, 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 any Certificateholder
upon request.
The Trust Agreement permits, with certain options therein provided, the
amendment thereof and the certification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Trust Agreement at
any time by the Depositor and the Eligible Lender Trustee with the consent of
the holders of the Notes and the Trust Certificates each voting as a class
evidencing not less than a majority of the outstanding principal balance of the
Notes and the Certificate Balance. Any such consent by the holder of this
Trust Certificate shall be conclusive and binding on such holder and on all
future holders of this Certificate and of any Trust Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not nota
tion of such consent is made upon this Trust Certificate. The Trust Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the holders of any of the Trust Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of
7
<PAGE> 51
the Trust Certificates are registerable in the Certificate Register upon
surrender of this Certificate for registration of transfer at the offices or
agencies maintained by The Chase Manhattan Bank (USA) in its capacity as Certif
icate Registrar, or by any successor Certificate Registrar, in the Borough of
Manhat tan, The City of New York, accompanied by a written instrument of
transfer in form satisfactory to the Eligible Lender Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Trust
Certificates of authorized denominations evidencing the same aggregate interest
in the Trust will be issued to the designated transferee.
The Trust Certificates are issuable only as registered Trust
Certificates without coupons in denominations of $100,000 or in integral
multiples of $500 in excess thereof. As provided in the Trust Agreement and
subject to certain limitations therein set forth, Trust Certificates are
exchangeable for new Trust Certificates of authorized denominations evidencing
the same aggregate denomination, as requested by the holder surrendering the
same. No service charge will be made for any such regis tration of transfer or
exchange, but the Eligible Lender Trustee or the 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 Certificate Registrar may treat the person
in whose name this Trust Certificate is registered as the owner hereof for all
purposes, and none of the Eligible Lender Trustee or the Certificate Registrar
or any such agent shall be affected by any notice to the contrary.
The Trust Certificates (including any beneficial interests therein) 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 Keogh plan or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in
8
<PAGE> 52
the entity (each, a "Benefit Plan"). By accepting and holding this Trust
Certificate, the Holder hereof shall be deemed to have represented and
warranted that it is not a Benefit Plan.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to
Certificateholders 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 Depositor may at
its option purchase the corpus of the Trust at a price specified in the
Administration Agreement, and such purchase of the Trust Student Loans and
other property of the Trust will effect early retirement of the Trust
Certificates; 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 Trust 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.
9
<PAGE> 53
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 Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
__________________________________________________ Attorney to transfer said
Trust certificate on the books of the 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 Trust 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.
10
<PAGE> 54
EXHIBIT B
TO THE TRUST AGREEMENT
FORM OF CERTIFICATE DEPOSITORY AGREEMENT
<PAGE> 1
EXHIBIT 4.2
================================================================================
INDENTURE
among
SLM STUDENT LOAN TRUST 1996-3,
as Issuer,
THE CHASE MANHATTAN BANK (USA),
not in its individual capacity but
solely as Eligible Lender Trustee
and
BANKERS TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
Dated as of July 1, 1996
===============================================================================
<PAGE> 2
TABLE OF CONTENTS
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ARTICLE I
Definitions and Usage
SECTION 1.1 Definitions and Usage . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.2 Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . 4
ARTICLE II
The Notes
SECTION 2.1 Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.2 Execution, Authentication and Delivery . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.3 Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.4 Registration; Registration of Transfer and Exchange . . . . . . . . . . . . . 7
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes . . . . . . . . . . . . . . . . . 8
SECTION 2.6 Persons Deemed Owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.7 Payment of Principal and Interest; Note Interest
Shortfall; Note Interest Carryover . . . . . . . . . . . . . . . . . . . 10
SECTION 2.8 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.9 Release of Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.10 Book-Entry Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.11 Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.12 Definitive Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE III
Covenants
SECTION 3.1 Payment to Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.3 Money for Payments To Be Held in Trust . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.4 Existence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.5 Protection of Indenture Trust Estate . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.6 Opinions as to Indenture Trust Estate . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.7 Performance of Obligations; Servicing of Trust Student Loans . . . . . . . . . 19
SECTION 3.8 Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.9 Annual Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . 25
</TABLE>
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SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms . . . . . . . . . . . . . 25
SECTION 3.11 Successor or Transferee . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.12 No Other Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.13 No Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.14 Obligations of Servicer and Administrator . . . . . . . . . . . . . . . . . . 28
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities . . . . . . . . . . . . . . 29
SECTION 3.16 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.17 Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.18 Notice of Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.19 Further Instruments and Acts . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . 30
SECTION 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.3 Repayment of Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . 32
SECTION 4.4 Auction of Trust Student Loans . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE V
Remedies
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . 36
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee . 37
SECTION 5.4 Remedies; Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.5 Optional Preservation of the Trust Student Loans . . . . . . . . . . . . . . . 44
SECTION 5.6 Limitation of Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and Interest . . . . 45
SECTION 5.8 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.9 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.10 Delay or Omission Not a Waiver . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.11 Control by Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.12 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.13 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.14 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.15 Action on Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 5.16 Performance and Enforcement of Certain Obligations . . . . . . . . . . . . . . 49
</TABLE>
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ARTICLE VI
The Indenture Trustee
SECTION 6.1 Duties of Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.2 Rights of Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.3 Individual Rights of Indenture Trustee . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.4 Indenture Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.5 Notice of Defaults; Seller Insolvency . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.6 Reports by Indenture Trustee to Noteholders . . . . . . . . . . . . . . . . . 54
SECTION 6.7 Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 6.8 Replacement of Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 6.9 Successor Indenture Trustee by Merger . . . . . . . . . . . . . . . . . . . . 57
SECTION 6.10 Appointment of Co-Trustee or Separate Trustee . . . . . . . . . . . . . . . . 58
SECTION 6.11 Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 6.12 Preferential Collection of Claims Against Issuer . . . . . . . . . . . . . . . 60
ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders . . . . 61
SECTION 7.2 Preservation of Information; Communications to Noteholders . . . . . . . . . . 61
SECTION 7.3 Reports by Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1 Collection of Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 8.2 Trust Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 8.3 General Provisions Regarding Accounts . . . . . . . . . . . . . . . . . . . . 66
SECTION 8.4 Release of Indenture Trust Estate . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 8.5 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE IX
Supplemental Indentures
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders . . . . . . . . . . . . 69
SECTION 9.2 Supplemental Indentures with Consent
</TABLE>
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of Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . 73
SECTION 9.4 Effect of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 9.5 Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . 73
SECTION 9.6 Reference in Notes to Supplemental Indentures . . . . . . . . . . . . . . . . 74
ARTICLE X
Redemption of Notes
SECTION 10.1 Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 10.2 Form of Redemption Notice . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 10.3 Notes Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE XI
Miscellaneous
SECTION 11.1 Compliance Certificates and Opinions, etc. . . . . . . . . . . . . . . . . . 75
SECTION 11.2 Form of Documents Delivered to Indenture Trustee . . . . . . . . . . . . . . . 79
SECTION 11.3 Acts of Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies . . . . . . . 81
SECTION 11.5 Notices to Noteholders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 11.6 Alternate Payment and Notice Provisions . . . . . . . . . . . . . . . . . . . 82
SECTION 11.7 Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 11.8 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . 83
SECTION 11.9 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 11.10 Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 11.11 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 11.12 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 11.13 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 11.14 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 11.15 Recording of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 11.16 Trust Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 11.17 No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 11.18 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
APPENDIX A Definitions and Usage . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SCHEDULE A Schedule of Trust Student Loans . . . . . . . . . . . . . . . . . . . . . . . 89
SCHEDULE B Location of Trust Student Loan Files . . . . . . . . . . . . . . . . . . . . . 90
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EXHIBIT A Form of Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
EXHIBIT B Form of Note Depository Agreement . . . . . . . . . . . . . . . . . . . . . . 103
</TABLE>
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<PAGE> 7
INDENTURE dated as of July 1, 1996, among SLM STUDENT LOAN TRUST
1996-3, a Delaware business trust (the "Issuer"), THE CHASE MANHATTAN BANK
(USA), a Delaware banking corporation, not in its individual capacity but
solely as trustee on behalf of the Issuer (the "Eligible Lender Trustee"), and
BANKERS TRUST COMPANY, a New York banking corporation, as trustee and not in
its individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the holders of the Issuer's Floating
Rate Student Loan-Backed Notes (the "Notes"):
GRANTING CLAUSE
The Issuer and, with respect to the Trust Student Loans, the
Eligible Lender Trustee hereby Grant to the Indenture Trustee, as trustee for
the benefit of the Noteholders, effective as of the Closing Date all of their
right, title and interest in and to the following:
(a) the Trust Student Loans, together with the Interest Subsidy
Payments and Special Allowance Payments with respect to such Trust Student
Loans accrued from and including April 1, 1996 through the Closing Date, and
all obligations of the Obligors thereunder including all moneys accrued and
paid thereunder on or after the Cutoff Date and all guaranties and other rights
relating to the Trust Student Loans;
(b) the Servicing Agreement, including the right of the Issuer
to cause the Servicer to purchase Trust Student Loans from the Issuer under
circumstances described therein;
(c) the Sale Agreement, including the right of the Issuer to
cause the Seller to repurchase Trust Student Loans from the Issuer under
circumstances described therein and including the rights of the Seller under
the Purchase Agreement;
<PAGE> 8
(d) the Purchase Agreement, to the extent that the rights of
the Seller thereunder have been assigned to the Issuer pursuant to the Sale
Agreement, including the right of the Seller to cause the Student Loan
Marketing Association to repurchase Trust Student Loans from the Seller under
circumstances described therein;
(e) the Administration Agreement;
(f) each Guarantee Agreement, including the right of the Issuer
to cause the related Guarantor to make Guarantee Payments in respect of the
Trust Student Loans;
(g) the Trust Accounts and all funds on deposit from time to
time in the Trust Accounts, including the Reserve Account Initial Deposit, and
all investments and proceeds thereof (including all income thereon); and
(h) all present and future claims, demands, causes and choses
in action in respect of any or all of the foregoing and all payments on or
under and all proceeds of every kind and nature whatsoever in respect of any or
all of the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and
other property which at any time constitute all or part of or are included in
the proceeds of any of the foregoing (collectively, the "Collateral").
2
<PAGE> 9
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, equally and ratably without prejudice, priority or distinction, and to
secure compliance with the provisions of this Indenture, all as provided in
this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the
Noteholders, acknowledges such Grant, accepts the trusts under this Indenture
in accordance with the provisions of this Indenture and agrees to perform its
duties required in this Indenture to the best of its ability to the end that
the interests of the Noteholders may be adequately and effectively protected.
3
<PAGE> 10
Article I
Definitions and Usage
SECTION 1.1 Definitions and Usage. Except as otherwise
specified herein or as the context may otherwise require, capitalized terms
used but not otherwise defined herein are defined in Appendix A hereto, which
also contains rules as to usage that shall be applicable herein.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
have the meaning assigned to them by such definitions.
4
<PAGE> 11
Article II
The Notes
SECTION 2.1 Form. The Notes, together with the Indenture Trustee's
certificate of authentication, shall be in substantially the forms set forth in
Exhibit A, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing the Notes, as evidenced by their execution of the Notes.
Any portion of the text of any Note may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms
of the Notes set forth in Exhibit A are part of the terms of this Indenture.
SECTION 2.2 Execution, Authentication and Delivery . The Notes
shall be executed on behalf of the Issuer by any of its Authorized Officers.
The signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
5
<PAGE> 12
The Indenture Trustee shall upon Issuer Order authenticate and
deliver Notes for original issue in an aggregate principal amount of
$1,454,000,000. The aggregate principal amount of Notes outstanding at any
time may not exceed such amount except as provided in Section 2.5.
Each Note shall be dated the date of its authentication. The Notes
shall be issuable as registered Notes in the minimum denomination of $1,000 and
in integral multiples of $1,000 in excess thereof.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
SECTION 2.3 Temporary Notes. Pending the preparation of Definitive
Notes, the Issuer may execute, and upon receipt of an Issuer Order the
Indenture Trustee shall authenticate and deliver, temporary Notes which are
printed, lithographed, typewritten, mimeographed or otherwise produced, of the
tenor of the Definitive Notes in lieu of which they are issued and with such
variations not inconsistent with the terms of this Indenture determined to be
appropriate by the Responsible Officer of the Issuer executing the temporary
Notes, as evidenced by his or her execution of such temporary Notes.
If temporary Notes are issued, the Issuer will cause Definitive Notes
to be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of the Issuer to be
maintained as provided in Section 3.2, without charge to the Noteholder. Upon
surrender for cancellation of any one or more temporary Notes, the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in
6
<PAGE> 13
all respects be entitled to the same benefits under this Indenture as
Definitive Notes.
SECTION 2.4 Registration; Registration of Transfer and
Exchange. The Issuer shall cause to be kept a register (the "Note Register")
in which, subject to such reasonable regulations as it may prescribe, the
Issuer shall provide for the registration of Notes and the registration of
transfers of Notes. The Indenture Trustee shall be "Note Registrar" for the
purpose of registering Notes and transfers of Notes as herein provided. Upon
any resignation of any Note Registrar, the Issuer shall promptly appoint a
successor or, if it elects not to make such an appointment, assume the duties
of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the
Issuer as Note Registrar, the Issuer shall give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location,
and any change in the location, of the Note Register, and the Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and
to obtain copies thereof, and the Indenture Trustee shall have the right to
rely upon a certificate executed on behalf of the Note Registrar by an
Executive Officer thereof as to the names and addresses of the Noteholders and
the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office
or agency of the Issuer to be maintained as provided in Section 3.2, if the
requirements of Section 8-401(1) of the UCC are met, the Issuer shall execute,
and the Indenture Trustee shall authenticate and the Noteholder shall obtain
from the Indenture Trustee, in the name of the designated transferee or
transferees, one or more new Notes in any authorized denominations and a like
aggregate principal amount.
At the option of the Noteholder, Notes may be exchanged for other
Notes in any authorized denominations and a like aggregate principal amount,
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange, the Issuer shall execute, and the
Indenture Trustee shall authenticate and the
7
<PAGE> 14
Noteholder shall obtain from the Indenture Trustee, the Notes which the
Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument
of transfer in form satisfactory to the Indenture Trustee duly executed by the
Noteholder thereof or such Noteholder's attorney duly authorized in writing,
with such signature guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar, which requirements include membership
or participation in Securities Transfer Agent's Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Exchange Act.
No service charge shall be made to a Noteholder for any registration
of transfer or exchange of Notes, but the Indenture Trustee may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
The preceding provisions of this Section notwithstanding, the Issuer
shall not be required to make and the Note Registrar need not register
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to the
Note.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, and (ii) there is delivered to the Issuer and the Indenture
Trustee
8
<PAGE> 15
such security or indemnity as may be required by each of them to hold the
Issuer and the Indenture Trustee harmless, then, in the absence of notice to
the Issuer, the Note Registrar or the Indenture Trustee that such Note has been
acquired by a bona fide purchaser, and provided that the requirements of
Section 8-405 of the UCC are met, the Issuer shall execute and upon its request
the Indenture Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Note, a replacement Note;
provided, however, that if any such destroyed, lost or stolen Note, but not a
mutilated Note, shall have become or within 15 days shall be due and payable,
or shall have been called for redemption, instead of issuing a replacement
Note, the Issuer may pay such destroyed, lost or stolen Note when so due or
payable or upon the Redemption Date without surrender thereof. If, after the
delivery of such replacement Note or payment of a destroyed, lost or stolen
Note pursuant to the proviso to the preceding sentence, a bona fide purchaser
of the original Note in lieu of which such replacement Note was issued presents
for payment such original Note, the Issuer and the Indenture Trustee shall be
entitled to recover such replacement Note (or such payment) from the Person to
whom it was delivered or any Person taking such replacement Note from such
Person to whom such replacement Note was delivered or any assignee of such
Person, except a bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Issuer or the Indenture Trustee in connection
therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer may require the payment by the Noteholder thereof of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of, interest (and any
Note Interest Carryover), if any, on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Issuer, the
Indenture Trustee nor any agent of the Issuer or the Indenture Trustee shall be
affected by notice to the contrary.
SECTION 2.7 Payment of Principal and Interest; Note Interest
Shortfall; Note Interest Carryover.
(a) The Notes shall accrue interest as provided in the form of Note set
forth in Exhibit A, and such interest shall be payable on each
Distribution Date as specified therein, subject to Section 3.1. Any
installment of interest (and any Note Interest Carryover) or principal, if
any, payable on any Note which is punctually paid or duly provided for by
the Issuer on the applicable Distribution Date shall be paid to the Person
in whose name such Note (or one or more Predecessor Notes) is registered
on the Record Date by check mailed first-class, postage prepaid to such
Person's address as it appears on the Note Register on such Record Date,
except that, unless Definitive Notes have been issued pursuant to Section
2.12, with respect to Notes registered on the Record Date in the name of
the nominee of the Clearing Agency (initially, such nominee to be Cede &
Co.), payment shall be made by wire transfer in immediately available
funds to the account designated by such nominee and except for the final
installment of principal payable with respect to such Note on a
Distribution Date or on the Note Final Maturity Date for such Note which
shall be payable as provided below. The funds represented by any such
checks returned undelivered shall be held in accordance with Section 3.3.
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(b) The principal of each Note shall be payable in installments on each
Distribution Date as provided in the form of Note set forth in Exhibit A.
Notwithstanding the foregoing, the entire unpaid principal amount of each
class of the Notes shall be due and payable, if not previously paid, on
the Note Final Maturity Date for such class of Notes and on the date on
which an Event of Default shall have occurred and be continuing if the
Indenture Trustee or the Noteholders of the Notes representing not less
than a majority of the Outstanding Amount of the Notes have declared the
Notes to be immediately due and payable in the manner provided in Section
5.2. All principal payments on the Notes shall be made pro rata to the
Noteholders entitled thereto. The Indenture Trustee shall notify the
Person in whose name a Note is registered at the close of business on the
Record Date preceding the Distribution Date on which the Issuer expects
that the final installment of principal of and interest (and any Note
Interest Carryover) on such Note will be paid. Such notice shall be
mailed or transmitted by facsimile prior to such final Distribution Date
and shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where
such Note may be presented and surrendered for payment of such
Installment. Notices in connection with redemptions of Notes shall be
mailed to Noteholders as provided in Section 10.2.
(c) If the Issuer defaults in a payment of interest on the Notes, the
Issuer shall pay the resulting Note Interest Shortfall on the following
Distribution Date as provided in the Administration Agreement.
(d) The Note Interest Carryover for each Distribution Date shall be
payable on each Distribution Date solely to the extent of funds required
and available to be distributed to Noteholders by the Indenture Trustee
pursuant to Section 2.7C.10, 2.8D(B) or 2.8E of the Administration
Agreement. Any Note Interest Carryover payable on any Distribution Date
shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the applicable Record Date by check
mailed first-class postage prepaid to
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such Person's address as it appears on the Note Register on such Record
Date, except that, unless Definitive Notes have been issued pursuant to
Section 2.12, with respect to the Notes registered on the Record Date in
the name of the nominee of the Clearing Agency (initially, such nominee to
be Cede & Co.), payment shall be made by wire transfer in immediately
available funds to the account designated by such nominee. The funds
represented by any such checks returned undelivered shall be held in
accordance with Section 3.3.
SECTION 2.8 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at
any time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever and all Notes so delivered shall be promptly cancelled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange
for any Notes cancelled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Notes may be held or disposed of by
the Indenture Trustee in accordance with its standard retention or disposal
policy as in effect at the time, unless the Issuer shall direct by an Issuer
Order that they be returned to it and so long as such Issuer Order is timely
and the Notes have not been previously disposed of by the Indenture Trustee.
SECTION 2.9 Release of Collateral. Subject to Section 11.1 and the
terms of the Basic Documents, the Indenture Trustee shall release property from
the lien of this Indenture only upon receipt of an Issuer Request accompanied
by an Officers' Certificate of the Issuer, an Opinion of Counsel and
Independent Certificates in accordance with TIA Section Section 314(c) and
314(d)(1) or an Opinion of Counsel in lieu of such Independent Certificates to
the effect that the TIA does not require any such Independent Certificates.
SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance,
will be issued in the form of typewritten Notes representing the Book-Entry
Notes, to be delivered to The Depository Trust Company, the
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initial Clearing Agency, by, or on behalf of, the Issuer. Such Notes shall
initially be registered on the Note Register in the name of Cede & Co., the
nominee of the initial Clearing Agency, and no Note Owner shall receive a
Definitive Note (as defined below) representing such Note Owner's interest in
such Note, except as provided in Section 2.12. Unless and until definitive,
fully registered Notes (the "Definitive Notes") have been issued to Note Owners
pursuant to Section 2.12:
(i) the provisions of this Section shall be in full force and
effect;
(ii) the Note Registrar and the Indenture Trustee, and their
respective directors, officers, employees and agents, may deal with
the Clearing Agency for all purposes (including the payment of
principal of and interest and other amounts on the Notes) as the
authorized representative of the Note Owners;
(iii) to the extent that the provisions of this Section conflict
with any other provisions of this Indenture, the provisions of this
Section shall control;
(iv) the rights of Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Note Owners and the Clearing Agency and/or
the Clearing Agency Participants pursuant to the Note Depository
Agreement; and unless and until Definitive Notes are issued pursuant
to Section 2.12, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest and other amounts on
the Notes to such Clearing Agency Participants; and
(v) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Noteholders of Notes
evidencing a specified percentage of the Outstanding Amount of the
Notes, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has
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received instructions to such effect from Note Owners and/or Clearing
Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in the Notes and has
delivered such instructions to the Indenture Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Note Owners pursuant to
Section 2.12, the Indenture Trustee shall give all such notices and
communication specified herein to be given to Noteholders to the Clearing
Agency.
SECTION 2.12 Definitive Notes. If (i) the Administrator advises the
Indenture Trustee in writing that the Clearing Agency is no longer willing or
able to discharge its responsibilities with respect to the Notes, and the
Administrator is unable to locate a successor, (ii) the Administrator at its
option advises the Indenture Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after the occurrence of
an Event of Default, a Servicer Default or an Administrator Default, Note
Owners representing beneficial interests aggregating at least a majority of the
Outstanding Amount of the Notes advise the Clearing Agency (which shall then
notify the Indenture Trustee) in writing that the continuation of a book-entry
system through the Clearing Agency is no longer in the best interests of the
Note Owners, then the Indenture Trustee shall cause the Clearing Agency to
notify all Note Owners, through the Clearing Agency, of the occurrence of any
such event and of the availability of Definitive Notes to Note Owners
requesting the same. Upon surrender to the Indenture Trustee of the
typewritten Notes representing the Book-Entry Notes by the Clearing Agency,
accompanied by registration instructions, the Issuer shall execute and the
Indenture Trustee shall authenticate the Definitive Notes in accordance with
the instructions of the Clearing Agency. None of the Issuer, the Note
Registrar or the Indenture Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Notes, the
Indenture Trustee shall recognize the holders of the Definitive Notes as
Noteholders.
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ARTICLE III
Covenants
SECTION 3.1 Payment to Noteholders. The Issuer shall duly and
punctually pay the principal of, interest, if any, on and any Note Interest
Carryover (but only to the extent provided in Sections 2.7(d) and 8.2(c)) with
respect to the Notes in accordance with the terms of the Notes and this
Indenture. Without limiting the foregoing, subject to Section 8.2(c), the
Issuer shall cause to be distributed to Noteholders in accordance with the
Administration Agreement that portion of the amounts on deposit in the Trust
Accounts on a Distribution Date (other than any Eligible Investments deposited
therein that will mature on the Business Day preceding a subsequent
Distribution Date) which the Noteholders are entitled to receive pursuant to
the Administration Agreement. Amounts properly withheld under the Code by any
Person from a payment to any Noteholder of interest (including any Note
Interest Carryover) and/or principal shall be considered as having been paid by
the Issuer to such Noteholder for all purposes of this Indenture.
SECTION 3.2 Maintenance of Office or Agency. The Issuer shall
maintain in the Borough of Brooklyn, The City of New York, an office or agency
where Notes may be surrendered for registration of transfer or exchange, and
where notices and demands to or upon the Issuer in respect of the Notes and
this Indenture may be served. The Issuer hereby initially appoints the
Indenture Trustee to serve as its agent for the foregoing purposes. The Issuer
shall give prompt written notice to the Indenture Trustee of the location, and
of any change in the location, of any such office or agency. If at any time
the Issuer shall fail to maintain any such office or agency or shall fail to
furnish the Indenture Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Corporate Trust Office, and
the Issuer hereby appoints the Indenture Trustee as its agent to receive all
such surrenders, notices and demands.
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SECTION 3.3 Money for Payments To Be Held in Trust. As provided in
Section 8.2(a) and (b), all payments of amounts due and payable with respect to
any Notes that are to be made from amounts distributed from the Collection
Account or any other Trust Account pursuant to Section 8.2(c) shall be made on
behalf of the Issuer by the Indenture Trustee or by another Paying Agent, and
no amounts so distributed from the Collection Account for payments of Notes
shall be paid over to the Issuer except as provided in this Section.
On or before the Business Day next preceding each Distribution Date
and Redemption Date, the Issuer shall distribute or cause to be distributed to
the Indenture Trustee (or any other Paying Agent) an aggregate sum sufficient
to pay the amounts then becoming due under the Notes, such sum to be held in
trust for the benefit of the Persons entitled thereto and (unless the Paying
Agent is the Indenture Trustee) shall promptly notify the Indenture Trustee of
its action or failure so to act.
The Issuer shall cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions
of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and pay such sums to such Persons as
herein provided;
(ii) give the Indenture Trustee notice of any default by the Issuer
of which it has actual knowledge (or any other obligor upon the
Notes) in the making of any payment required to be made with respect
to the Notes;
(iii) at any time during the continuance of any such default, upon
the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
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to the Indenture Trustee all sums so held in trust by such Paying
Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of
Notes if at any time it ceases to meet the standards required to be
met by a Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Indenture
Trustee upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Subject to applicable laws with respect to escheat of funds, any
money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed for
two years after such amount has become due and payable shall be discharged from
such trust and be paid to the Issuer on Issuer Request or if the Issuer has
been terminated to Seller; and the Noteholder thereof shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof (but
only to the extent of the amounts so paid to the Issuer), and all liability of
the Indenture Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided, however, that the Indenture Trustee or such
Paying Agent, before being required to make any such repayment, shall at the
expense and direction of the Issuer cause to be
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published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer. The Indenture Trustee shall also adopt and employ, at the
expense of the Issuer, any other reasonable means of notification of such
repayment (including mailing notice of such repayment to Noteholders whose
Notes have been called but have not been surrendered for redemption or whose
right to or interest in moneys due and payable but not claimed is determinable
from the records of the Indenture Trustee or of any Paying Agent, at the last
address of record for each such Noteholder).
SECTION 3.4 Existence. The Issuer shall keep in full effect its
existence, rights and franchises as a business trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States of
America, in which case the Issuer shall keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Indenture Trust Estate.
SECTION 3.5 Protection of Indenture Trust Estate. The Issuer will
from time to time execute and deliver all such supplements and amendments
hereto and all such financing statements, continuation statements, will take
such other action necessary or advisable to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of any grant
made or to be made by this Indenture;
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(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Indenture Trust Estate and the
rights of the Indenture Trustee and the Noteholders in such Indenture
Trust Estate against the claims of all persons and parties.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be executed pursuant to this Section.
SECTION 3.6 Opinions as to Indenture Trust Estate. (a) On the
Closing Date, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording and filing of this Indenture as is
necessary to perfect and make effective the lien and security interest of this
Indenture and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such lien and
security interest effective.
(b) On or before December 31 in each calendar year, beginning in 1996,
the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
either stating that, in the opinion of such counsel, such action has been
taken with respect to the recording, filing, re-recording and refiling of
this Indenture and any indentures supplemental hereto as is necessary to
maintain the lien and security interest created by this Indenture and
relating the details of such action or stating that in the opinion of such
counsel no such action is necessary to maintain such lien and security
interest. Such Opinion of Counsel shall also describe the recording,
filing, recording and refiling of this Indenture and any indentures
supplemental hereto that will, in the opinion of such counsel, be required
to maintain the lien and security interest of this Indenture until
December 31 in the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Trust Student
Loans. (a) The Issuer will not take any action and will use its best
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efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Indenture Trust Estate or that would
result in the amendment, hypothecation, subordination, termination or discharge
of, or impair the validity or effectiveness of, any such instrument or
agreement, except as expressly provided in this Indenture, any other Basic
Document or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in performing
its duties under this Indenture, and any performance of such duties by a
Person identified to the Indenture Trustee in an Officers' Certificate of
the Issuer shall be deemed to be action taken by the Issuer; provided,
however, the Issuer shall not be liable for any acts of Persons with whom
the Issuer has contracted with reasonable care. Initially, the Issuer has
contracted with the Servicer and the Administrator to assist the Issuer in
performing its duties under this Indenture. The Issuer shall give written
notice to the Indenture Trustee and each Rating Agency of any such
contract with any other Person.
(c) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this Indenture, the other Basic
Documents and the in struments and agreements included in the Indenture
Trust Estate, including filing or causing to be filed all UCC financing
statements and continuation statements prepared by the Issuer and required
to be filed by the terms of this Indenture and the Administration
Agreement in accordance with and within the time periods provided for
herein and therein. Except as otherwise expressly provided therein, the
Issuer shall not waive, amend, modify, supplement or terminate any Basic
Document or any provision thereof without the consent of the Indenture
Trustee or the Noteholders of at least a majority of the Outstanding
Amount of the Notes. The Issuer shall give written notice to each Rating
Agency of any such waiver, amendment, modification, supplement or
termination.
(d) If a Responsible Officer of the Issuer shall have knowledge of the
occurrence of a Servicer Default or an Administrator Default under
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the Servicing Agreement or the Administration Agreement, respectively, the
Issuer shall promptly notify the Indenture Trustee and the Rating Agencies
thereof, and shall specify in such notice the action, if any, the Issuer
is taking with respect to such default. If a Servicer Default shall arise
from the failure of the Servicer to perform any of its duties or
obligations under the Servicing Agreement, or an Administrator Default
shall arise from the failure of the Administrator to perform any of its
duties or obligations under the Administration Agreement, as the case may
be, with respect to the Trust Student Loans, the Issuer shall take all
reasonable steps available to it to enforce its rights under the Basic
Documents in respect of such failure.
(e) As promptly as possible after the giving of notice of termination to
the Servicer of the Servicer's rights and powers, pursuant to Section 5.1
of the Servicing Agreement, or to the Administrator of the Administrator's
rights and powers, pursuant to Section 5.1 of the Administration
Agreement, the Issuer shall appoint a successor servicer (the "Successor
Servicer") or a successor administrator (the "Successor Administrator"),
respectively, and such Successor Servicer or Successor Administrator, as
the case may be, shall accept its appointment by a written assumption in a
form acceptable to the Indenture Trustee. In the event that a Successor
Servicer or Successor Administrator has not been appointed and accepted
its appointment at the time when the Servicer or Administrator, as the
case may be, ceases to act as Servicer or Administrator, respectively,
the Indenture Trustee without further action shall automatically be
appointed the Successor Servicer or Successor Administrator, as the case
may be. The Indenture Trustee may resign as the Servicer or the
Administrator by giving written notice of resignation to the Issuer and in
such event will be released from such duties and obligations, such release
not to be effective until the date a new servicer or a new administrator
enters into an agreement with the Issuer as provided below; provided,
however, that nothing herein shall require or permit the Indenture Trustee
to act as Servicer, or otherwise service the Trust Student Loans, in
violation of the Higher Education Act. Upon delivery of any such notice
to the Issuer, the Issuer shall obtain a new servicer
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as the Successor Servicer under the Servicing Agreement or a new
administrator as the Successor Administrator under the Administration
Agreement, as the case may be. Any Successor Servicer or Successor
Administrator, other than the Indenture Trustee, shall (i) be an
established institution (A) that satisfies any requirements of the Higher
Education Act applicable to servicers and (B) whose regular business
includes the servicing or administration of student loans and (ii) enter
into a servicing agreement or an administration agreement, respectively,
with the Issuer having substantially the same provisions as the provisions
of the Servicing Agreement and the Administration Agreement, as
applicable. If within 30 days after the delivery of the notice referred
to above, the Issuer shall not have obtained such a new servicer or new
administrator, as the case may be, the Indenture Trustee may appoint, or
may petition a court of competent jurisdiction to appoint, a Successor
Servicer or Successor Administrator; provided, however, that such right to
appoint or to petition for the appointment of any such successor shall in
no event relieve the Indenture Trustee from any obligations otherwise
imposed on it under the Basic Documents until such successor has in fact
assumed such appointment. In connection with any such appointment, the
Indenture Trustee may make such arrangements for the compensation of such
successor as it and such successor shall agree, subject to the limitations
set forth below and in the Servicing Agreement or Administration
Agreement, as applicable, and in accordance with Section 5.2 of the
Servicing Agreement and Section 5.2 of the Administration Agreement, the
Issuer shall enter into an agreement with such successor for the servicing
or administration of the Trust Student Loans (such agreement to be in form
and substance satisfactory to the Indenture Trustee). If the Indenture
Trustee shall succeed as provided herein to the Servicer's duties as
Servicer with respect to the Trust Student Loans, or the Administrator's
duties with respect to the Issuer and the Trust Student Loans, as the case
may be, it shall do so in its individual capacity and not in its capacity
as Indenture Trustee and, accordingly, the provisions of Article VI hereof
shall be inapplicable to the Indenture Trustee in its duties as the
successor to the Servicer or the Administrator, as the case may be, and
the servicing or administration of the
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Trust Student Loans. In case the Indenture Trustee shall become
successor to the Servicer or the Administrator, the Indenture Trustee
shall be entitled to appoint as Servicer or as Administrator, as the case
may be, any one of its Affiliates, provided that such appointment shall
not affect or alter in any way the liability of the Indenture Trustee as
Successor Servicer or Successor Administrator, respectively, in accordance
with the terms hereof.
(f) Upon any termination of the Servicer's rights and powers pursuant to
the Servicing Agreement, or any termination of the Administrator's rights
and powers pursuant to the Administration Agreement, as the case may be,
the Issuer shall promptly notify the Indenture Trustee and each Rating
Agency. As soon as a Successor Servicer or a Successor Administrator is
appointed, the Issuer shall notify the Indenture Trustee and each Rating
Agency of such appointment, specifying in such notice the name and address
of such Successor Servicer or such Successor Administrator.
(g) Without derogating from the absolute nature of the assignment granted
to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees that it will not, without
the prior written consent of the Indenture Trustee or the Noteholders of
at least a majority in Outstanding Amount of the Notes, amend, modify,
waive, supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms
of any Collateral or the Basic Documents, except to the extent otherwise
provided in the Basic Documents, or waive timely performance or observance
by the Servicer, the Administrator, the Seller, the Student Loan
Marketing Association, the Issuer or the Eligible Lender Trustee under the
Basic Documents; provided, however, that no such amendment shall (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, distributions that are required to be made for the benefit of
the Noteholders, or (ii) reduce the aforesaid percentage of the Notes
which are required to consent to any such amendment, without the consent
of the Noteholders of all the Outstanding Notes. If any such
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amendment, modification, supplement or waiver shall be so consented to by
the Indenture Trustee or such Noteholders, the Issuer shall give written
notice thereof to each Rating Agency and agrees, promptly following a
request by the Indenture Trustee to do so, to execute and deliver, in its
own name and at its own expense, such agreements, instruments, consents
and other documents as the Indenture Trustee may deem necessary or
appropriate in the circumstances.
SECTION 3.8 Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture or any other
Basic Document, sell, transfer, exchange or otherwise dispose of any
of the properties or assets of the Issuer, including those included
in the Indenture Trust Estate, unless directed to do so by the
Indenture Trustee;
(ii) claim any credit on, or make any deduction from the principal or
interest (including any Note Interest Carryover) payable in respect
of, the Notes (other than amounts properly withheld from such
payments under the Code or applicable state law) or assert any claim
against any present or former Noteholder by reason of the payment of
the taxes levied or assessed upon any part of the Indenture Trust
Estate; or
(iii) (A) permit the validity or effectiveness of this Indenture
to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any
Person to be released from any covenants or obligations with respect
to the Notes under this Indenture except as may be expressly
permitted hereby, (B) permit any lien, charge, excise, claim,
security interest, mortgage or other encumbrance (other than the lien
of this Indenture) to be created on or extend to or otherwise arise
upon or burden the Indenture Trust Estate or any part thereof or any
interest therein or the proceeds thereof (other than tax liens and
other liens that arise by opera-
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tion of law, and other than as expressly permitted by the Basic
Documents) or (C) permit the lien of this Indenture not to constitute
a valid first priority (other than with respect to any such tax or
other lien) security interest in the Indenture Trust Estate.
SECTION 3.9 Annual Statement as to Compliance. The Issuer will
deliver to the Indenture Trustee and each Rating Agency, within 120 days after
the end of each fiscal year of the Issuer (commencing with the fiscal year
1997), an Officers' Certificate of the Issuer stating that:
(i) a review of the activities of the Issuer during such year and of
performance under this Indenture has been made under such Authorized
Officers' supervision; and
(ii) to the best of such Authorized Officers' knowledge, based on
such review, the Issuer has complied with all conditions and
covenants under this Indenture throughout such year, or, if there has
been a default in the compliance of any such condition or covenant,
specifying each such default known to such Authorized Officers and
the nature and status thereof.
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other Person,
unless:
(i) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing
under the laws of the United States of America or any State and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the due and punctual payment of the principal of,
interest on and any Note Interest Carryover, if any, with respect to
all Notes and the performance or observance of every agreement and
covenant of this Indenture on the part of the Issuer to be performed
or observed, all as provided herein;
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(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction will not have any material adverse
Federal or Delaware state tax consequence to the Issuer, any
Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken;
and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate of the Issuer and an Opinion of Counsel each
stating that such consolidation or merger and such supplemental
indenture comply with this Article III and that all conditions
precedent herein provided for relating to such transaction have been
complied with (including any filing required by the Exchange Act).
(b) The Issuer shall not convey or transfer all or substantially all its
properties or assets, including those included in the Indenture Trust
Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of
which is hereby restricted shall (A) be a United States citizen or a
Person organized and existing under the laws of the United States of
America or any State, (B) expressly assume, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee,
in form satisfactory to the Indenture Trustee,
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the due and punctual payment of the principal of, interest on and
Note Interest Carryover, if any, with respect to all Notes and the
performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed, all
as provided herein, (C) expressly agree by means of such supplemental
indenture that all right, title and interest so conveyed or
transferred shall be subject and subordinate to the rights of
Noteholders, (D) unless otherwise provided in such supplemental
indenture, expressly agree to indemnify, defend and hold harmless the
Issuer against and from any loss, liability or expense arising under
or related to this Indenture and the Notes and (E) expressly agree by
means of such supplemental indenture that such Person (or if a group
of Persons, then one specified Person) shall make all filings with
the Commission (and any other appropriate Person) required by the
Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction will not have any material adverse
Federal or Delaware state tax consequence to the Issuer, any
Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken;
and
(vi) e Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate of the Issuer and an Opinion of Counsel each
stating that such conveyance or transfer and such
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supplemental indenture comply with this Article III and that all
conditions precedent herein provided for relating to such transaction
have been complied with (including any filing required by the
Exchange Act).
SECTION 3.11 Successor or Transferee. (a) Upon any consolidation
or merger of the Issuer in accordance with Section 3.10(a), the Person formed
by or surviving such consolidation or merger (if other than the Issuer) shall
succeed to, and be substituted for, and may exercise every right and power of,
the Issuer under this Indenture with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer pursuant to Section 3.10(b), SLM Student Loan Trust 1996-3 will
be released from every covenant and agreement of this Indenture to be
observed or performed on the part of the Issuer with respect to the Notes
immediately upon the delivery by the Issuer of written notice to the
Indenture Trustee stating that SLM Student Loan Trust 1996-3 is to be so
released.
SECTION 3.12 No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the
Trust Student Loans in the manner contemplated by this Indenture and the other
Basic Documents and activities incidental thereto.
SECTION 3.13 No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
SECTION 3.14 Obligations of Servicer and Administrator. The Issuer
shall cause the Servicer to comply with Sections 3.1, 3.2 and 3.3 of the
Administration Agreement and Section 3.7 of the Servicing Agreement and the
Administrator to comply with Sections 2.9, 3.1, 3.2 and 3.3 of the
Administration Agreement.
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SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by this Indenture and the other Basic Documents, the
Issuer shall not make any loan or advance or credit to, or guarantee (directly
or indirectly or by an instrument having the effect of assuring another's
payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or own,
purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.16 Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
SECTION 3.17 Restricted Payments. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Eligible Lender Trustee or any owner of a beneficial interest
in the Issuer or otherwise with respect to any ownership or equity interest or
security in or of the Issuer or to the Servicer or the Administrator, (ii)
redeem, purchase, retire or otherwise acquire for value any such ownership or
equity interest or security or (iii) set aside or otherwise segregate any
amounts for any such purpose; provided, however, that the Issuer may make, or
cause to be made, distributions to the Servicer, the Eligible Lender Trustee,
the Indenture Trustee, the Certificateholders, the Noteholders, the
Administrator and the Seller as contemplated by, and to the extent funds are
available for such purpose under, this Indenture and the other Basic Documents.
The Issuer will not, directly or indirectly, make payments to or distributions
from the Collection Account except in accordance with this Indenture and the
other Basic Documents.
SECTION 3.18 Notice of Events of Default. The Issuer shall give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event
of Default hereunder and each default on the part of the Seller of its
obligations under the Sale Agreement, the Student Loan Marketing
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Association of its obligations under the Purchase Agreement, the Servicer of
its obligations under the Servicing Agreement, or the Administrator of its
obligations under the Administration Agreement. In addition, the Issuer shall
deliver to the Indenture Trustee and each Rating Agency, within five days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of the Issuer of any event which with the giving of notice and the lapse of
time would become an Event of Default under Section 5.1(iii), its status and
what action the Issuer is taking or proposes to take with respect thereto.
SECTION 3.19 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of
mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to
receive payments of principal thereof and interest (including any Note Interest
Carryover) thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8, 3.10, 3.12 and 3.13, (v)
the rights, obligations and immunities of the Indenture Trustee hereunder
(including, without limitation, the rights of the Indenture Trustee under
Section 6.7 and the obligations of the Indenture Trustee under Section 4.2) and
(vi) the rights of Noteholders as beneficiaries hereof with respect to the
property so deposited with the Indenture Trustee payable to all or any of them,
and the Indenture Trustee, on demand of and at the expense of the Issuer, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to the Notes, when:
(A) either
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(1) all Notes theretofore authenticated and delivered (other than
(i) Notes that have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 2.5 and (ii) Notes for whose
payment money has theretofore been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to the Issuer
or discharged from such trust, as provided in Section 3.3) have been
delivered to the Indenture Trustee for cancellation; or
(2) all Notes not theretofore delivered to the Indenture Trustee for
cancellation
(i) have become due and payable,
(ii) will become due and payable at their respective Note
Final Maturity Date, within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Indenture Trustee for the
giving of notice of redemption by the Indenture Trustee in the
name, and at the expense, of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be irrevocably deposited with the Indenture Trustee
cash or direct obligations of or obligations guaranteed by the United
States of America (which will mature prior to the date such amounts are
payable), in trust for such purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore delivered
to the Indenture Trustee for cancellation when due to the Note Final
Maturity Date;
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(B) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(C) the Issuer has delivered to the Indenture Trustee an Officers'
Certificate of the Issuer, an Opinion of Counsel and (if required by
the TIA or the Indenture Trustee) an Independent Certificate from a
firm of certified public accountants, each meeting the applicable
requirements of Section 11.1(a) and, subject to Section 11.2, each
stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been complied
with.
SECTION 4.2 Application of Trust Money. All moneys deposited with
the Indenture Trustee pursuant to Section 4.1 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Noteholders of the particular Notes for
the payment or redemption of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal and
interest (including any Note Interest Carryover); but such moneys need not be
segregated from other funds except to the extent required herein or in the
Administration Agreement or required by law.
SECTION 4.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the
Notes, all moneys then held by any Paying Agent other than the Indenture
Trustee under the provisions of this Indenture with respect to such Notes
shall, upon demand of the Issuer, be paid to the Indenture Trustee to be held
and applied according to Section 3.3 and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
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SECTION 4.4 Auction of Trust Student Loans. Any Trust Student Loans
remaining in the Trust as of the end of the Collection Period immediately
preceding the earliest Distribution Date on which the Pool Balance is equal to
10% or less of the Initial Pool Balance three business days prior to such
Distribution Date (the "Trust Auction Date") shall be offered for sale by the
Indenture Trustee unless the Seller has exercised its option to purchase the
Trust Estate as described in Section 6.1A of the Administration Agreement with
respect to such Distribution Date. The Seller will be deemed to have waived
such option if it fails to notify the Eligible Lender Trustee and the Indenture
Trustee of its exercise thereof in writing prior to the Indenture Trustee's
acceptance of a bid to purchase such Trust Student Loans; provided, however,
that there shall be no such offer for sale if the Indenture Trustee fails to
provide notice to the Seller in accordance with this Section 4.4. The
Indenture Trustee shall provide written notice to the Seller of any such offer
for sale at least 5 business days in advance of the Trust Auction Date. The
Indenture Trustee shall permit the Seller or any of its Affiliates to offer
bids only if the Pool Balance as of the applicable Trust Auction Date is equal
to 10% or less of the Initial Pool Balance. If at least two bids are received,
the Indenture Trustee shall solicit and resolicit new bids from all
participating bidders until only one bid remains or the remaining bidders
decline to resubmit bids. The Indenture Trustee shall accept the highest of
such remaining bids if it is equal to or in excess of both the Minimum Purchase
Amount and the fair market value of such Trust Student Loans as of the end of
the Collection Period immediately preceding the Trust Auction Date. If at
least two bids are not received or the highest bid after the resolicitation
process is completed is not equal to or in excess of the higher of the Minimum
Purchase Amount and the fair market value of the Trust Student Loans, the
Indenture Trustee shall not consummate such sale. The Indenture Trustee may
consult, and, at the direction of the Seller, shall consult, with a financial
advisor, including any un derwriter of the Notes or the Administrator, to
determine if the fair market value of the Trust Student Loans has been offered.
The proceeds of any such sale will be applied in the order of priority set
forth in Section 5.4(b). If the sale is not consummated in accordance with the
foregoing, the Indenture Trustee may, but shall not be under any obligation to,
solicit bids for sale of the Trust Student Loans with respect to future
Distribution Dates upon terms similar to those described above, including the
Seller's waiver of its option to purchase the Trust Estate in
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accordance with Section 6.1A of the Administration Agreement with respect to
each such future Distribution Date.
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ARTICLE V
Remedies
SECTION 5.1 Events of Default. "Event of Default," wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(i) default in the payment of any interest (including, subject to
the limitations of Sections 2.7(d) and 8.2(c), any Note Interest
Carryover) on any Note when the same becomes due and payable, and
such default shall continue for a period of five days; or
(ii) default in the payment of the principal of any Note when the
same becomes due and payable on the related Note Final Maturity Date;
or
(iii) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture (other than a covenant
or agreement, a default in the observance or performance of which is
elsewhere in this Section specifically dealt with), or any
representation or warranty of the Issuer made in this Indenture or in
any certificate or other writing having been incorrect in any
material respect as of the time when made, such default or breach
having a material adverse effect on the holders of the Notes, and
such default or breach shall continue or not be cured, or the
circumstance or condition in respect of which such misrepresentation
or warranty was incorrect shall not have been eliminated or otherwise
cured, for a period of 30 days after there shall have been given, by
registered or certified mail, to the Issuer by the Indenture Trustee
or to the Issuer and
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the Indenture Trustee by the Noteholders of at least 25% of the
Outstanding Amount of the Notes, a written notice specifying such
default or incorrect representation or warranty and requiring it to
be remedied and stating that such notice is a notice of Default
hereunder; or
(iv) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any
substantial part of the Indenture Trust Estate in an involuntary case
under any applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Issuer or for any substantial part of the Indenture
Trust Estate, or ordering the winding-up or liquidation of the
Issuer's affairs, and such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or
(v) the commencement by the Issuer of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or the consent by the the Issuer in
furtherance of any of the foregoing.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. If
an Event of Default should occur and be continuing, then and in every such case
the Indenture Trustee or the Noteholders of Notes representing not less than a
majority of the Outstanding Amount of the Notes may declare all the Notes to be
immediately due and payable, by a notice in
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writing to the Issuer (and to the Indenture Trustee if given by Noteholders),
and upon any such declaration the unpaid principal amount of such Notes,
together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity has
been made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter in this Article V provided,
the Noteholders of Notes representing a majority of the Outstanding Amount of
the Notes, by written notice to the Issuer and the Indenture Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(A) all payments of principal of and interest on
all Notes and all other amounts that would then be due
hereunder or upon such Notes if the Event of Default
giving rise to such acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture
Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of
the principal of the Notes that has become due solely by such
acceleration, have been cured or waived as provided in Section
5.12.
No such rescission shall affect any subsequent default or impair
any right consequent thereto.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee. The Issuer covenants that if (i) default is
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made in the payment of any interest (including, subject to the limitations of
Sections 2.7(d) and 8.2(c), any Note Interest Carryover) on any Note when the
same becomes due andpayable, and such default continues for a period of five
days, or (ii) default is made in the payment of the principal of any Note when
the same becomes due and payable at the related Note Final Maturity Date, the
Issuer shall, upon demand of the Indenture Trustee, pay to it, for the benefit
of the Noteholders, the whole amount then due and payable on such Notes for
principal and interest (and any Note Interest Carryover), with interest upon
the overdue principal, and, to the extent payment at such rate of interest
shall be legally enforceable, upon overdue installments of interest (and any
Note Interest Carryover), at the rate specified in Section 2.7 and in addition
thereto such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its agents and counsel.
(a) In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Indenture Trustee, in its own name and as
trustee of an express trust, may institute a Proceeding for the
collection of the sums so due and unpaid, and may prosecute such
Proceeding to judgment or final decree, and may enforce the same
against the Issuer or other obligor upon such Notes and collect in
the manner provided by law out of the property of the Issuer or other
obligor upon such Notes, wherever situated, the moneys adjudged or
decreed to be payable.
(b) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights
of the Noteholders, by such appropriate Proceedings as the Indenture
Trustee shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or
equitable right vested in the Indenture Trustee by this Indenture or
by law.
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(c) In case there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an
ownership interest in the Indenture Trust Estate, Proceedings under
Title 11 of the United States Code or any other applicable Federal or
state bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or
such other obligor or Person, or in case of any other, comparable
judicial Proceedings relative to the Issuer or other obligor upon the
Notes, or to the creditors or property of the Issuer or such other
obligor, the Indenture Trustee, irrespective of whether the principal
of any Notes shall then be due and payable, as therein expressed or
by declaration or otherwise and irrespective of whether the Indenture
Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and interest (including any Note
Interest Carryover) owing and unpaid in respect of the
Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the
Indenture Trustee (including any claim for reasonable
compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the
Indenture Trustee and each predecessor Indenture Trustee,
except as a result of negligence or bad faith) and of the
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and
regulations, to vote on behalf of the Noteholders in any
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election of a trustee, a standby trustee or Person
performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute all amounts received with respect to the claims
of the Noteholders and of the Indenture Trustee on their
behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have
the claims of the Indenture Trustee or the Noteholders
allowed in any judicial proceedings relative to the Issuer,
its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar
official in any such Proceeding is hereby authorized by each of such
Noteholders to make payments to the Indenture Trustee, and, in the
event that the Indenture Trustee shall consent to the making of
payments directly to such Noteholders, to pay to the Indenture
Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture
Trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by
the Indenture Trustee and each predecessor Indenture Trustee except
as a result of negligence or bad faith.
(d) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any
Noteholder thereof or to authorize the Indenture Trustee to vote in
respect of the claim of any Noteholder in any such proceeding except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
Person.
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(e) All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Indenture Trustee without
the possession of any of the Notes or the production thereof in any trial
or other Proceedings relative thereto, and any such action or Proceedings
instituted by the Indenture Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents
and attorneys, shall be for the ratable benefit of the Noteholders.
(f) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Noteholders, and it shall not
be necessary to make any Noteholder a party to any such Proceedings.
SECTION 5.4 Remedies; Priorities. If an Event of Default shall have
occurred and be continuing, the Indenture Trustee may do one or more of the
following (subject to Section 5.5):
(a) (i) institute Proceedings in its own name and as trustee
of an express trust for the collection of all amounts
then payable on the Notes or under this Indenture with
respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from the
Issuer and any other obligor upon such Notes moneys adjudged
due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture, with respect
to the Indenture Trust Estate;
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(iii) exercise any remedies of a secured party under the UCC
with respect to the Trust Estate and take any other appropriate
action to protect and enforce the rights and remedies of the
Indenture Trustee and the Noteholders;
(iv) sell the Indenture Trust Estate or any portion thereof
or rights or interest therein, at one or more public or private
sales called and conducted in any manner permitted by law;
and/or
(v) elect to have the Eligible Lender Trustee maintain
ownership of the Trust Student Loans and continue to apply
collections with respect to the Trust Student Loans as if there
had been no declaration of acceleration.
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Indenture Trust Estate following an Event of Default, other than
an Event of Default described in Section 5.1(i) or (ii), unless (A) the
Noteholders of 100% of the Outstanding Amount of the Notes consent thereto, (B)
the proceeds of such sale or liquidation distributable to the Noteholders are
sufficient to discharge in full all amounts then due and unpaid upon such Notes
for principal and interest or (C) the Indenture Trustee determines that the
Indenture Trust Estate will not continue to provide sufficient funds for the
payment of principal of and interest on the Notes as they would have become due
if the Notes had not been declared due and payable, and the Indenture Trustee
obtains the consent of Noteholders of 66-2/3% of the Outstanding Amount of the
Notes. In determining such sufficiency or insufficiency with respect to clause
(B) and (C), the Indenture Trustee may, but need not, obtain and rely upon an
opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Indenture Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out the money or property in the following
order:
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FIRST: to the Indenture Trustee for amounts due under Section 6.7;
SECOND: to the Servicer for due and unpaid Primary Servicing Fees;
THIRD: to Noteholders for amounts due and unpaid on the Notes for
interest other than any Note Interest Carryover, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for such interest;
FOURTH: to Noteholders for amounts due and unpaid on the Notes for
principal, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal;
FIFTH: to the Issuer for distribution to the Certificateholders in
respect of any unpaid Certificate Balance and unpaid return on the
Certificates other than any Certificate Return Carryover;
SIXTH: to the Servicer, for any unpaid Carryover Servicing Fees;
SEVENTH: to Noteholders for any unpaid Note Interest Carryover,
ratably, without preference or priority of any kind, according to the
amount of such Note Interest Carryover attributable to each Note;
EIGHTH: to the Issuer for distribution to the Certificateholders of
any unpaid Certificate Return Carryover; and
NINTH: to the Issuer, for distribution in accordance with the terms
of the Administration Agreement and the Trust Agreement.
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The Indenture Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section. At least 15 days before
such record date, the Indenture Trustee shall mail to each Noteholder and
the Issuer a notice that states the record date, the payment date and the
amount to be paid.
SECTION 5.5 Optional Preservation of the Trust Student Loans. If
the Notes have been declared to be due and payable under Section 5.2 following
an Event of Default and such declaration and its consequences have not been
rescinded and annulled, the Indenture Trustee may, but need not, elect to
maintain possession of the Indenture Trust Estate. It is the desire of the
parties hereto and the Noteholders that there be at all times sufficient funds
for the payment of principal of and interest (including any Note Interest
Carryover) on the Notes, and the Indenture Trustee shall take such desire into
account when determining whether or not to maintain possession of the Indenture
Trust Estate. In determining whether to maintain possession of the Indenture
Trust Estate, the Indenture Trustee may, but need not, obtain and rely upon an
opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Indenture Trust Estate for such purpose.
SECTION 5.6 Limitation of Suits. No Noteholder shall have any right
to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(I) such Noteholder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Noteholders of not less than 25% of the Outstanding Amount
of the Notes have made written request to the Indenture Trustee to
institute such Proceeding in respect of such Event of Default in its
own name as Indenture Trustee hereunder;
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(iii) such Noteholder or Noteholders have offered to the
Indenture Trustee reasonable indemnity against the costs, expenses
and liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceeding; and
(v) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the
Noteholders of a majority of the Outstanding Amount of the Notes;
it being understood and intended that no one or more Noteholders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this indenture to affect, disturb or prejudice the rights of any other
Noteholders or to obtain or to seek to obtain priority or preference over any
other Noteholders or to enforce any right under this Indenture, except in the
manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Noteholders,
each representing less than a majority of the Outstanding Amount of the Notes,
the Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, any
Noteholder shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest on such Note on or after the
respective due dates thereof expressed in such Note or in this Indenture (or,
in the case of redemption, on or after the Redemption Date) and to institute
suit for the enforcement of any such payment, and such right shall not be
impaired without the consent of such Noteholder.
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SECTION 5.8 Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had
been instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission
of the Indenture Trustee or any Noteholder to exercise any right or remedy
accruing upon any Default shall impair any such right or remedy or constitute a
waiver of any such Default or an acquiescence therein. Every right and remedy
given by this Article V or by law to the Indenture Trustee or to the
Noteholders may be exercised from time to time, and as often as may be deemed
expedient, by the Indenture Trustee or by the Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. The Noteholders of a majority
of the Outstanding Amount of the Notes shall have the right to direct the time,
method and place of conducting any Proceeding for any remedy available to the
Indenture Trustee with respect to the Notes or exercising any trust or power
conferred on the Indenture Trustee; provided
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(i) that such direction shall not be in conflict with any rule
of law or with this Indenture;
(ii) subject to the express terms of Section 5.4, any direction
to the Indenture Trustee to sell or liquidate the Indenture Trust
Estate shall be by the Noteholders of not less than 100% of the
Outstanding Amount of the Notes;
(iii) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Indenture
Trust Estate pursuant to such Section, then any direction to the
Indenture Trustee by Noteholders of less than 100% of the Outstanding
Amount of the Notes to sell or liquidate the Indenture Trust Estate
shall be of no force and effect; and
(iv) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction;
provided, however, that, subject to Section 6.1, the Indenture Trustee need not
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholders not consenting to
such action.
SECTION 5.12 Waiver of Past Defaults. Prior to the time a judgment
or decree for payment of money due has been obtained as described in Section
5.2, the Noteholders of not less than a majority of the Outstanding Amount of
the Notes may waive any past Default and its consequences except a Default (a)
in payment when due of principal of or interest (including, subject to the
limitations of Sections 2.7(d) and 8.2(c), any Note Interest Carryover) on any
of the Notes or (b) in respect of a covenant or provision hereof which cannot
be modified or amended without the consent of each Noteholder. In the case of
any such waiver, the Issuer, the Indenture Trustee and the Noteholders shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereto.
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Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture
agree, and each Noteholder by such Noteholder's acceptance of any Note shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Indenture Trustee for any action taken, suffered or omitted by
it as Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes or (c) any suit Instituted by any Noteholder
for the enforcement of the payment of principal of or interest (including any
Note Interest Carryover) on any Note on or after the respective due dates
expressed in such Note and in this Indenture (or, in the case of redemption, on
or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Indenture Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
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SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek
and recover judgment on the Notes or under this Indenture shall not be affected
by the seeking, obtaining or application of any other relief under or with
respect to this Indenture. Neither the lien of this Indenture nor any rights
or remedies of the Indenture Trustee or the Noteholders shall be impaired by
the recovery of any judgment by the Indenture Trustee against the Issuer or by
the levy of any execution under such judgment upon any portion of the Indenture
Trust Estate or upon any of the assets of the Issuer. Any money or property
collected by the Indenture Trustee shall be applied in accordance with Section
5.4(b).
SECTION 5.16 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so and at
the Administrator's expense, the Issuer shall take all such lawful action as
the Indenture Trustee may request to compel or secure the performance and
observance by the Seller, the Student Loan Marketing Association, the
Administrator and the Servicer, as applicable, of each of their obligations to
the Issuer, whether directly or by assignment, under or in connection with the
Sale Agreement, the Purchase Agreement, the Administration Agreement and the
Servicing Agreement, respectively, in accordance with the terms thereof, and to
exercise any and all rights, remedies, powers and privileges lawfully available
to the Issuer under or in connection with the Sale Agreement, the Purchase
Agreement, the Administration Agreement and the Servicing Agreement, as the
case may be, to the extent and in the manner directed by the Indenture Trustee,
including the trans mission of notices of default on the part of the Seller,
the Student Loan Marketing Association, the Administrator or the Servicer
thereunder and the institution of legal or administrative actions or
proceedings to compel or secure performance by the Seller, the Student Loan
Marketing Association, the Administrator or the Servicer of each of their
obligations under the Sale Agreement, the Purchase Agreement, the
Administration Agreement and the Servicing Agreement, respectively.
(b) If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and at the written direction of the Noteholders of 66-2/3% of
the Outstanding Amount of the Notes shall, exercise all rights,
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remedies, powers, privileges and claims of the Issuer against the Seller,
the Student Loan Marketing Association, the Administrator or the Servicer
under or in connection with the Sale Agreement, the Purchase Agreement,
the Administration Agreement and the Servicing Agreement, respectively,
including the right or power to take any action to compel or secure
performance or observance by the Seller, the Student Loan Marketing
Association, the Administrator or the Servicer of each of their
obligations to the Issuer thereunder, whether directly or by assignment,
and to give any consent, request, notice, direction, approval, extension
or waiver under the Sale Agreement, the Purchase Agreement, the
Administration Agreement and the Servicing Agreement, respectively, and
any right of the Issuer to take such action shall be suspended.
ARTICLE VI
The Indenture Trustee
SECTION 6.1 Duties of Indenture Trustee. (a) If an Event of
Default has occurred and is continuing, the Indenture Trustee shall exercise
the rights and powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such
duties and only such duties as are specifically set forth in
this Indenture and no implied covenants or obligations shall be
read into this Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Indenture Trustee and
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conforming to the requirements of this Indenture; provided,
however, that the Indenture Trustee shall examine the
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Indenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer
unless it is proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
5.11.
(d) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing with
the Issuer.
(e) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms
of this Indenture or the other Basic Documents.
(f) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayments of such funds or adequate indemnity satisfactory to it against any
loss, liability or expense is not reasonably assured to it.
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(g) Except as expressly provided in the Basic Documents, the
Indenture Trustee shall have no obligation to administer, service or
collect the Trust Student Loans or to maintain, monitor or otherwise
supervise the administration, servicing or collection of the Trust
Student Loans.
(h) In the event that the Indenture Trustee is the Paying Agent
or the Note Registrar, the rights and protections afforded to the
Indenture Trustee pursuant to this Indenture shall also be afforded
to the Indenture Trustee in its capacity as Paying Agent or Note
Registrar.
(i) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the
Indenture Trustee shall be subject to the provisions of this Section
and to the provisions of the TIA.
SECTION 6.2 Rights of Indenture Trustee. (a) The
Indenture Trustee may rely on any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Indenture Trustee need
not investigate any fact or matter stated in such document.
(b) Before the Indenture Trustee acts or refrains from acting,
it may require and shall be entitled to receive an Officers'
Certificate of the Issuer and/or an Opinion of Counsel. The
Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officers' Certificate
or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys or a custodian or nominee, and the
Indenture Trustee shall not be responsible for any misconduct or
negligence on the part of, or for the supervision of, any such agent,
attorney, custodian or nominee appointed with due care by it
hereunder.
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(d) The Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be
authorized or within its rights or powers; provided, however, that
the Indenture Trustee's conduct does not constitute willful
misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice
or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
SECTION 6.3 Individual Rights of Indenture Trustee. The
Indenture Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Issuer or its Affiliates
with the same rights it would have if it were not Indenture Trustee. Any
Paying Agent, Note Registrar, co-registrar or co-paying agent may do the same
with like rights. However, the Indenture Trustee must comply with Sections
6.11 and 6.12.
SECTION 6.4 Indenture Trustee's Disclaimer. The Indenture
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Issuer's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Issuer in the Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Indenture Trustee's certificate of authentication.
SECTION 6.5 Notice of Defaults; Seller Insolvency. (a) If a
Default occurs and is continuing and if it is either actually known or written
notice of the existence thereof has been delivered to a Responsible Officer of
the Indenture Trustee, the Indenture Trustee shall mail notice of the Default
to each Noteholder within 90 days and to each Rating Agency as soon as
practicable within 30 days after it occurs. Except in the case of a Default in
payment of principal of or interest (including any Note Interest Carryover) on
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any Note (including payments pursuant to the mandatory redemption provisions of
such Note), the Indenture Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Noteholders. Except as provided in the first
sentence of this Section 6.5(a), in no event shall the Indenture Trustee be
deemed to have knowledge of a Default or an Event of Default.
(b) If the Indenture Trustee receives notice from the Eligible
Lender Trustee of the occurrence of an Insolvency Event with respect
to the Seller pursuant to Section 9.2 of the Trust Agreement, the
Indenture Trustee shall give prompt written notice to the Noteholders
of the occurrence of such event and of the effect of such event under
such Section 9.2. Upon termination of the Trust pursuant to such
Section 9.2, the Indenture Trustee shall, if so directed by the
Eligible Lender Trustee, sell the Trust Estate (other than the Trust
Accounts) in a commercially reasonable manner and on commercially
reasonable terms. The proceeds of any such sale shall be treated as
collections under the Administration Agreement.
SECTION 6.6 Reports by Indenture Trustee to Noteholders.
The Indenture Trustee shall deliver to each Noteholder (and to each Person who
was a Noteholder at any time during the applicable calendar year) such
information as may be required to enable such holder to prepare its Federal and
state income tax returns. Within 60 days after each December 31 beginning with
the December 31 following the date of this Indenture, the Indenture Trustee
shall mail to each Noteholder a brief report as of such December 31 that
complies with TIA Section 313(a) if required by said section. The Indenture
Trustee shall also comply with TIA Section 313(b). A copy of each such report
required pursuant to TIA Section 313(a) or (b) shall, at the time of such
transaction to Noteholders, be filed by the Indenture Trustee with the
Commission and with each securities exchange, if any, upon which the Notes are
listed, provided that the Issuer has previously notified the Indenture Trustee
of such listing.
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SECTION 6.7 Compensation and Indemnity. The Issuer shall cause
the Seller to pay to the Indenture Trustee reasonable compensation for its
services in accordance with a separate agreement between the Seller and the
Indenture Trustee and shall cause the Seller to reimburse the Indenture
Trustee for all reasonable out-of-pocket expenses incurred or made by it as
provided in such separate agreement. The Indenture Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Issuer shall cause the Administrator to indemnify the Indenture
Trustee and its directors, officers, employees and agents against any and all
loss, liability or expense (including attorneys' fees) incurred by it in
connection with the administration of this trust and the performance of its
duties hereunder and under the other Basic Documents. The Indenture Trustee
shall notify the Issuer and the Administrator promptly of any claim for which
it may seek indemnity. Failure by the Indenture Trustee to so notify the
Issuer and the Administrator shall not relieve the Issuer or the Administrator
of its obligations hereunder and under the other Basic Documents. The Issuer
shall cause the Administrator to defend the claim and the Administrator shall
not be liable for the legal fees and expenses of the Indenture Trustee after it
has assumed such defense; provided, however, that, in the event that there may
be a conflict between the positions of the Indenture Trustee and the
Administrator in conducting the defense of such claim, the Indenture Trustee
shall be entitled to separate counsel acceptable to it in its sole discretion
the reasonable fees and expenses of which shall be paid by the Administrator on
behalf of the Issuer. Neither the Issuer nor the Administrator need reimburse
any expense or indemnify against any loss, liability or expense incurred by the
Indenture Trustee through the Indenture Trustee's own willful misconduct,
negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee
pursuant to this Section shall survive the discharge of this Indenture. When
the Indenture Trustee incurs expenses after the occurrence of a Default
specified in Section 5.1(iv) or (v) with respect to the Issuer, the expenses
are intended to constitute expenses of administration under Title 11 of the
United States Code or any other applicable Federal or state bankruptcy,
insolvency or similar law.
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SECTION 6.8 Replacement of Indenture Trustee. No resignation
or removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.8. The Indenture Trustee
may resign at any time by so notifying the Issuer. The Noteholders of a
majority in Outstanding Amount of the Notes may remove the Indenture Trustee by
so notifying the Indenture Trustee and may appoint a successor Indenture
Trustee. The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section
6.11;
(ii) an Insolvency Event occurs with respect to the
Indenture Trustee;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
If the Indenture Trustee resigns or is removed or if a vacancy
exists in the office of Indenture Trustee for any reason (the Indenture Trustee
in such event being referred to herein as the retiring Indenture Trustee), the
Issuer shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance
of its appointment to the retiring Indenture Trustee and to the Issuer.
Thereupon the resignation or removal of the retiring Indenture Trustee shall
become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the Indenture Trustee under this Indenture. The
successor Indenture Trustee shall mail a notice of its succession to
Noteholders. The retiring Indenture Trustee shall promptly transfer all
property held by it as Indenture Trustee to the successor Indenture Trustee.
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If a successor Indenture Trustee does not take office within 60
days after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Noteholders of a majority in Outstanding
Amount of the Notes may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee. The successor Indenture Trustee
shall give notice of its appointment as successor Indenture Trustee to the
Rating Agencies.
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section, the Issuer's and the Administrator's obligations
under Section 6.7 shall continue for the benefit of the retiring Indenture
Trustee.
SECTION 6.9 Successor Indenture Trustee by Merger. If the
Indenture Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture Trustee,
provided that such corporation or banking association shall be otherwise
qualified and eligible under Section 6.11. The Indenture Trustee shall provide
the Rating Agencies prior written notice of any such transaction.
In case at the time such successor or successors by merger,
conversion or consolidation to the Indenture Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been authenticated
but not delivered, any such successor to the Indenture Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such
Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any successor to the Indenture Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Indenture Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in
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the Notes or in this Indenture provided that the certificate of the Indenture
Trustee shall have.
SECTION 6.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any time, for
the purpose of meeting any legal requirement of any jurisdiction in which any
part of the Indenture Trust Estate may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Indenture Trust Estate,
and to vest in such Person or Persons, in such capacity and for the benefit of
the Noteholders, such title to the Indenture Trust Estate, or any part hereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider necessary
or desirable. No such appointment shall relieve the Indenture Trustee of its
obligations hereunder. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.11 and no notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.8 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Indenture Trustee shall be conferred or
imposed upon and exercised or performed by the Indenture
Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not
authorized to act separately without the Indenture Trustee
joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be
performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of
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title to the Indenture Trust Estate or any portion thereof in
any such jurisdiction) shall be exercised and performed singly
by such separate trustee or co-trustee, but solely at the
direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder;
and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall refer
to this Indenture and the conditions of this Article VI. Each separate
trustee and co-trustee, upon its acceptance of the trusts conferred, shall
be vested with the estates or property specified in its instrument of
appointment, either jointly with the Indenture Trustee or separately, as
may be provided therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the
conduct of, affecting the liability of, or affording protection to, the
Indenture Trustee. Every such instrument shall be filed with the
Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
the Indenture Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Indenture on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Indenture Trustee, to the
extent permitted by law, without the appointment of a new or successor
trustee.
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SECTION 6.11 Eligibility; Disqualification. The Indenture
Trustee shall at all times satisfy the requirements of TIA Section 310(a) and
the requirements of an "eligible lender" under 20 USC Section 1085(d). The
Indenture Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition and it shall have a long-term senior unsecured debt rating of not
less than investment grade by each of the Rating Agencies. The Indenture
Trustee shall comply with TIA Section 310(b), including the optional provision
permitted by the second sentence of TIA Section 310(b)(9); provided, however,
that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against Issuer.
The Indenture Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). An Indenture Trustee who
has resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated.
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ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuer will furnish or cause to be furnished to
the Indenture Trustee (a) not more than five days after the earlier of (i) each
Record Date and (ii) three months after the last Record Date, a list, in such
form as the Indenture Trustee may reasonably require, of the names and
addresses of the Noteholders as of such Record Date, (b) at such other times as
the Indenture Trustee may request in writing, within 30 days after receipt by
the Issuer of any such request, a list of similar form and content as of a date
not more than 10 days prior to the time such list is furnished; provided,
however, that so long as the Indenture Trustee is the Note Registrar, no such
list shall be required to be furnished.
SECTION 7.2 Preservation of Information; Communications to
Noteholders. The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Noteholders contained in
the most recent list furnished to the Indenture Trustee as provided in Section
7.1 and the names and addresses of Noteholders received by the Indenture
Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy
any list furnished to it as provided in such Section 7.1 upon receipt of a new
list so furnished.
(a) Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture
or under the Notes. Upon receipt by the Indenture Trustee of any
request by three or more Noteholders or by one or more holders of
Notes evidencing not less than 25% of the Outstanding Amount of the
Notes to receive a copy of the current list of Noteholders (whether
or not made pursuant to TIA Section 312(b)), the Indenture Trustee
shall promptly notify the Administrator thereof by providing to the
Administrator a copy of such request and a copy of the list of
Noteholders produced in response thereto.
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(b) The Issuer, the Indenture Trustee and the Note Registrar shall
have the protection of TIA Section 312(c).
(c) On each Distribution Date the Indenture Trustee shall provide to
each Noteholder of record as of the related Record Date the
information provided by the Administrator to the Indenture Trustee on
the related Determination Date pursuant to Section 2.9 of the
Administration Agreement.
(d) The Indenture Trustee shall furnish to the Noteholders promptly
upon receipt of a written request therefor, duplicates or copies of
all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Indenture
Trustee under the Basic Documents. The Indenture Trustee shall
furnish to the Noteholders promptly upon receipt thereof from the
Eligible Lender Trustee notice of any amendment of the Administration
Agreement pursuant to Section 8.5 of the Administration Agreement.
SECTION 7.3 Reports by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after
the Issuer is required to file the same with the Commission,
copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Issuer may be required to file
with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to
time by the Commission such additional information, documents
and reports with respect to compliance by the Issuer with the
conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
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(iii) supply to the Indenture Trustee (and the
Indenture Trustee shall transmit by mail to all Noteholders
described in TIA Section 313(c)) such summaries of any
information, documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) of this Section
7.3(a) as may be required by rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
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ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1 Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture. The
Indenture Trustee shall apply all such money received by it on behalf of
Noteholders pursuant to the Administration Agreement as provided in this
Indenture. Except as otherwise expressly provided in this Indenture, if any
default occurs in the making of any payment or performance under any agreement
or instrument that is part of the Indenture Trust Estate, the Indenture Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim
a Default under this Indenture and any right to proceed thereafter as provided
in Article V.
SECTION 8.2 Trust Accounts. (a) On or prior to the Closing
Date, the Issuer shall cause the Administrator to establish and maintain, in
the name of the Indenture Trustee, for the benefit of the Noteholders and the
Certificateholders, the Trust Accounts as provided in Section 2.3 of the
Administration Agreement.
(b) On or before the Business Day preceding each Distribution Date, all
Available Funds with respect to the preceding Collection Period will be
deposited in the Collection Account as provided in Section 2.4 of the
Administration Agreement. On or before each Distribution Date, the
Noteholders' Distribution Amount and any Note Interest Carryover, if any,
with respect to the preceding Collection Period will be distributed from
the Collection Account and any other Trust Account to the Indenture
Trustee (or any other Paying Agent) on
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behalf of the Noteholders as provided in Sections 2.7 and 2.8 of the
Administration Agreement.
(c) On each Distribution Date and Redemption Date, the Indenture Trustee
(or any other Paying Agent) shall distribute all amounts received by it on
behalf of Noteholders pursuant to paragraph (b) above to Noteholders in
respect of the Notes to the extent of amounts payable on the Notes for
principal, interest and any Note Interest Carryover in the following
amounts and in the following order of priority (except as otherwise
provided in Section 5.4(b)):
(i) the Noteholders' Interest Distribution Amount, to the
Noteholders in an amount equal to the accrued and unpaid interest on
the Notes at the respective Note Rates; provided that if there are
not sufficient funds received to pay the entire amount of accrued and
unpaid interest then due on the Notes at the respective Note Rates,
the amounts so received shall be applied to the payment of such
interest on the Notes on a pro rata basis;
(ii) the Noteholders' Principal Distribution Amount, to the
Noteholders of the Class A-1 Notes until the Outstanding Amount of
the Class A-1 Notes is reduced to zero; provided, that if there are
not sufficient funds received to pay the Outstanding Amount of the
Class A-1 Notes, the amounts so received shall be applied to the
payment of principal on the Class A-1 Notes on a pro rata basis;
(iii) the Noteholders' Principal Distribution Amount, to the
Noteholders of the Class A-2 Notes until the Outstanding Amount of
the Class A-2 Notes is reduced to zero; provided, that if there are
not sufficient funds received to pay the Outstanding Amount of the
Class A-2 Notes, the amounts so received shall be applied to the
payment of principal on the Class A-2 Notes on a pro rata basis; and
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(iv) the Note Interest Carryover, if any, to the Noteholders;
provided that if insufficient funds are received to pay the entire
Note Interest Carryover, the amounts so received shall be applied to
the payment of such Note Interest Carryover on a pro rata basis.
SECTION 8.3 General Provisions Regarding Accounts. (a) So long as
no Default shall have occurred and be continuing, all or a portion of the funds
in the Trust Accounts shall be invested in Eligible Investments and reinvested
by the Indenture Trustee upon Issuer Order, subject to the provisions of
Section 2.3B of the Administration Agreement. All income or other gain from
investments of moneys deposited in the Trust Accounts shall be deposited by the
Indenture Trustee in the Collec tion Account, and any loss resulting from such
investments shall be charged to such Trust Account. The Issuer will not direct
the Indenture Trustee to make any investment of any funds or to sell any
investment held in any of the Trust Accounts unless the security interest
granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the Indenture
Trustee, the Issuer shall deliver to the Indenture Trustee an Opinion of
Counsel, acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in any way
be held liable for the selection of Eligible Investments or by reason of
any insufficiency in any of the Trust Accounts resulting from any loss on
any Eligible Investment included therein except for losses attributable to
the Indenture Trustee's failure to make payments on such Eligible
Investments issued by the Indenture Trustee, in its commercial capacity as
principal obligor and not as trustee, in accordance with their terms.
(c) If (i) the Issuer shall have failed to give investment directions
for any funds on deposit in the Trust Accounts to the Indenture Trustee by
10:00 a.m. Eastern Time (or such other time as may be agreed by
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the Issuer and Indenture Trustee) on any Business Day; or (ii) a Default
shall have occurred and be continuing with respect to the Notes but the
Notes shall not have been declared due and payable pursuant to Section
5.2, or, if such Notes shall have been declared due and payable following
an Event of Default, amounts collected or receivable from the Indenture
Trust Estate are being applied in accordance with Section 5.5 as if there
had not been such a declaration; then the Indenture Trustee shall invest
and reinvest funds in the Trust Accounts in the Eligible Investments
described in clause (d) of the definition thereof.
SECTION 8.4 Release of Indenture Trust Estate. (a) Subject to the
payment of its fees and expenses pursuant to Section 6.7, the Indenture Trustee
may, and when required by the provisions of this Indenture shall, execute
instruments to release property from the lien of this Indenture, or convey the
Indenture Trustee's interest in the same, in a manner and under circumstances
that are not inconsistent with the provisions of this Indenture. No party
relying upon an instrument executed by the Indenture Trustee as provided in
this Article VIII shall be bound to ascertain the Indenture Trustee's
authority, inquire into the satisfaction of any conditions precedent or see to
the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Indenture Trustee pursuant to Section 6.7
have been paid, release any remaining portion of the Indenture Trust
Estate that secured the Notes from the lien of this Indenture and release
to the Issuer or any other Person entitled thereto any funds then on
deposit in the Trust Accounts. The Indenture Trustee shall release
property from the lien of this Indenture pursuant to this Section 8.4(b)
only upon receipt of an Issuer Request accompanied by an Officers'
Certificate of the Issuer, an Opinion of Counsel and (if required by the
TIA) Independent Certificates in accordance with TIA Section Section
314(c) and 314(d)(1) meeting the applicable requirements of Section 11.1.
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(c) Each Noteholder, by the acceptance of a Note, acknowledges that from
time to time the Indenture Trustee shall release the lien of this
Indenture on any Trust Student Loan to be sold to (i) the Seller in
accordance with Section 6 of the Sale Agreement, (ii) to the Servicer in
accordance with Section 3.5 of the Servicing Agreement and (iii) to
another eligible lender holding one or more Serial Loans with respect to
such Trust Student Loan, in accordance with Section 3.11E of the Servicing
Agreement, and each Noteholder, by the acceptance of a Note, consents to
any such release.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall receive
at least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require, except in connection with any
action contemplated by Section 8.4(c), as a condition to such action, an
Opinion of Counsel, in form and substance satisfactory to the Indenture
Trustee, stating the legal effect of any such action, outlining the steps
required to complete the same, and concluding that all conditions precedent to
the taking of such action have been complied with and such action will not
materially and adversely impair the security for the Notes or the rights of the
Noteholders in contravention of the provisions of this Indenture; provided,
however, that such Opinion of Counsel shall not be required to express an
opinion as to the fair value of the Indenture Trust Estate. Counsel rendering
any such opinion may rely, without independent investigation, on the accuracy
and validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
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ARTICLE IX
Supplemental Indentures
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of any Noteholders but with prior notice to the Rating
Agencies, the Issuer and the Indenture Trustee, when authorized by an Issuer
Order, at any time and from time to time, may enter into one or more indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject
to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein
and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit of
the Noteholders, or to surrender any right or power herein conferred
upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property
to the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with
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respect to matters or questions arising under this Indenture or in
any supplemental indenture; provided that such action shall not
materially adversely affect the interests of the Noteholders;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the
Notes and to add to or change any of the provisions of this Indenture
as shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of
Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
Federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA.
The Indenture Trustee is hereby authorized to join in the execution
of any such supplemental indenture and to make any further appropriate
agreements and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Noteholders but with
prior notice to the Rating Agencies, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this
Indenture or of modifying in any manner the rights of the Noteholders
under this Indenture; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any Noteholder.
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SECTION 9.2 Supplemental Indentures with Consent of Noteholders.
The Issuer and the Indenture Trustee, when authorized by an Issuer Order, also
may, with prior notice to the Rating Agencies and with the consent of the
Noteholders of not less than a majority of the Outstanding Amount of the Notes,
by Act of such Noteholders delivered to the Issuer and the Indenture Trustee,
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Noteholders under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Noteholder of each Outstanding Note
affected thereby:
(i) change the date of payment of any installment of principal
of or interest (including any Note Interest Carryover) on any Note,
or reduce the principal amount thereof, the interest rate thereon or
the Redemption Price with respect thereto, change the provisions of
this Indenture relating to the application of collections on, or the
proceeds of the sale of, the Indenture Trust Estate to payment of
principal of or interest (including any Note Interest Carryover) on
the Notes, or change any place of payment where, or the coin or
currency in which, any Note or the interest thereon is payable, or
impair the right to institute suit for the enforcement of the
provisions of this Indenture requiring the application of funds
available therefor, as provided in Article V, to the payment of any
such amount due on the Notes on or after the respective due dates
thereof (or, in the case of redemption, on or after the Redemption
Date);
(ii) reduce the percentage of the Outstanding Amount of the
Notes, the consent of the Noteholders of which is required for any
such supplemental indenture, or the consent of the Noteholders of
which is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture;
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(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the
Notes required to direct the Indenture Trustee to direct the Issuer
to sell or liquidate the Indenture Trust Estate pursuant to Section
5.4;
(v) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture or the other Basic Documents cannot be
modified or waived without the consent of the Noteholder of each
Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest (including any Note Interest Carryover) or principal due on
any Note on any Distribution Date (including the calculation of any
of the individual components of such calculation) or to affect the
rights of the Noteholders to the benefit of any provisions for the
mandatory redemption of the Notes contained herein; or
(vii) permit the creation of any lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of
the Indenture Trust Estate or, except as otherwise permitted or
contemplated herein, terminate the lien of this Indenture on any
property at any time subject hereto or deprive any Noteholder of any
Note of the security provided by the lien of this Indenture.
It shall not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
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Promptly after the execution by the Issuer and the Indenture Trustee
of any supplemental indenture pursuant to this Section, the Indenture Trustee
shall mail to the Noteholders of the Notes to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 9.3 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but
shall not be obligated to, enter into any such supplemental indenture that
affects the Indenture Trustee's own rights, duties, liabilities or immunities
under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations
of rights, obligations, duties, liabilities and immunities under this Indenture
of the Indenture Trustee, the Issuer and the Noteholders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
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SECTION 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee
shall, bear a notation in form approved by the Indenture Trustee as to any
matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X
Redemption of Notes
SECTION 10.1 Redemption. The Indenture Trustee shall, upon receipt
of written notice from the Eligible Lender Trustee or the Depositor pursuant to
Section 9.2 of the Trust Agreement of an Insolvency Event with respect to the
Depositor, give prompt written notice to the Noteholders of the occurrence of
such event. In the event that the assets of the Trust are sold pursuant to
Section 9.2 of the Trust Agreement, that portion of the amounts on deposit in
the Trust Accounts to be distributed to the Noteholders shall be paid to the
Noteholders up to the Outstanding Amount of the Notes and all accrued and
unpaid interest thereon and any accrued Note Interest Carryover with respect
thereto (but only to the extent provided by Sections 2.7(d) and 8.2(c)). If
amounts are to be paid to Noteholders pursuant to this Section 10.1, the notice
of such event from the Indenture Trustee to the Noteholders shall include
notice of the redemption of Notes by application of such amounts on the next
Distribution Date which is not sooner than 15 days after the date of such
notice (the "Redemption Date"), whereupon all such amounts shall be payable on
the Redemption Date.
SECTION 10.2 Form of Redemption Notice. Notice of redemption under
Section 10.1 shall be given by the Indenture Trustee by first-class
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mail, postage prepaid, or by facsimile, mailed or transmitted on or prior to
the applicable Redemption Date to each Noteholder, as of the close of business
on the Record Date preceding the applicable Redemption Date, at such
Noteholder's address or facsimile number appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place were such Notes are to be surrendered for payment
of the Redemption Price (which shall be the office or agency of the
Issuer to be maintained as provided in Section 3.2).
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuer. Failure to give notice
of redemption, or any defect therein, to any Noteholder of any Note shall not
impair or affect the validity of the redemption of any other Note.
SECTION 10.3 Notes Payable on Redemption. The Notes or portions
thereof to be redeemed shall on the Redemption Date become due and payable at
the Redemption Price and (unless the Issuer shall default in the payment of the
Redemption Price) no interest shall accrue on the Redemption Price for any
period after the date to which accrued interest is calculated for purposes of
calculating the Redemption Price.
ARTICLE XI
Miscellaneous
SECTION 11.1 Compliance Certificates and Opinions, etc. Upon any
application or request by the Issuer to the Indenture Trustee to take any
action under any provision of this Indenture, the Issuer shall furnish
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to the Indenture Trustee and the Rating Agencies (i) an Officers' Certificate
of the Issuer stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with and (iii) (if required by
the TIA) an Independent Certificate from a firm of certified public accountants
meeting the applicable requirements of this Section, except that, in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this
Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.1(a) or elsewhere in this Indenture, furnish to the Indenture
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Trustee and the Rating Agencies an Officers' Certificate of the Issuer
certifying or stating the opinion of each person signing such certificate
as to the fair value (within 90 days of such deposit) to the Issuer of the
Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee and the Rating Agencies an Officers' Certificate of the
Issuer certifying or stating the opinion of any signer thereof as to
the matters described in clause (i) above, the Issuer shall also
deliver to the Indenture Trustee an Independent Certificate as to the
same matters, if the fair value to the Issuer of the securities to be
so deposited and of all other such securities made the basis of any
such withdrawal or release since the commencement of the then-current
fiscal year of the Issuer, as set forth in the certificates delivered
pursuant to clause (i) above and this clause (ii), is 10% or more of
the Outstanding Amount of the Notes, but such a certificate need not
be furnished with respect to any securities so deposited, if the fair
value thereof to the Issuer as set forth in the related Officers'
Certificate is less than $25,000 or less than one percent of the
Outstanding Amount of the Notes.
(iii) Other than any property released as contemplated by clause
(v) below, whenever any property or securities are to be released
from the lien of this Indenture, the Issuer shall also furnish to the
Indenture Trustee an Officers' Certificate of the Issuer certifying
or stating the opinion of each person signing such certificate as to
the fair value (within 90 days of such release) of the property or
securities proposed to be released and stating that in the opinion of
such person the proposed release will not impair the security under
this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officers' Certificate of the Issuer certifying or stating
the opinion of any signer thereof as to the matters
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described in clause (iii) above, the Issuer shall also furnish to the
Indenture Trustee an Independent Certificate as to the same matters
if the fair value of the property or securities and of all other
property, other than property as contemplated by clause (v) below, or
securities released from the lien of this Indenture since the
commencement of the then-current calendar year, as set forth in the
certificates required by clause (iii) above and this clause (iv),
equals 10% or more of the Outstanding Amount of the Notes, but such
certificate need not be furnished in the case of any release of
property or securities if the fair value thereof as set forth in the
related Officers' Certificate is less than $25,000 or less than one
percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section, the Issuer may, without compliance with the requirements of
the other provisions of this Section, (A) collect, liquidate, sell or
otherwise dispose of Trust Student Loans as and to the extent
permitted or required by the Basic Documents, (B) make cash payments
out of the Trust Accounts as and to the extent permitted or required
by the Basic Documents and (C) convey to the Seller, the Servicer or
another eligible lender those specified Trust Student Loans as and to
the extent permitted or required by and in accordance with Section
8.4(c) hereof and Section 6 of the Sale Agreement, Section 3.5 of the
Servicing Agreement or Section 3.11E of the Servicing Agreement,
respectively, so long as the Issuer shall deliver to the Indenture
Trustee every six months, commencing April 26, 1996, an Officers'
Certificate of the Issuer stating that all the dispositions of
Collateral described in clauses (A), (B) or (C) above that occurred
during the immediately preceding six calendar months were in the
ordinary course of the Issuer's business and that the proceeds
thereof were applied in accordance with the Basic Documents.
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SECTION 11.2 Form of Documents Delivered to Indenture Trustee. In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters, and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Servicer, the Seller, the Issuer or the Administrator, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Seller, the Issuer or the Administrator, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of
the facts and opinions stated in such document shall in such case be conditions
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precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however,
be construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 11.3 Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except
as herein otherwise expressly provided such action shall become effective when
such instrument or instruments are delivered to the Indenture Trustee, and,
where it is hereby expressly required, to the Issuer. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Noteholders signing such instrument
or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.1) conclusive in favor of the Indenture Trustee and
the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Noteholder of any Notes shall bind the
Noteholder of every Note issued upon registration of transfer thereof
or in exchange therefor or in lieu thereof, in respect of anything
done, omitted or suffered to be done by the Indenture Trustee or the
Issuer in reliance thereon, whether or not notation of such action is
made upon such Note.
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SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture shall be in writing and if such request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders is to be made upon,
given or furnished to or filed with:
(a) The Indenture Trustee by any Noteholder, the Servicer, the
Administrator or by the Issuer shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with
the Indenture Trustee at its Corporate Trust Office, or
(b) The Issuer by the Indenture Trustee or by any Noteholder shall
be sufficient for every purpose hereunder if in writing and mailed,
first-class, postage prepaid, to the Issuer addressed to: SLM Student
Loan Trust 1996-3, in care of The Chase Manhattan Bank (USA), 802
Delaware Avenue, Wilmington, Delaware 19899, Attention: Corporate
Trust Department; with copies to The Chase Manhattan Bank, N.A., 4
Chase Metro Tech Center, Brooklyn, New York 11245, Attention:
Corporate Trust Department, and the Administrator, 1050 Thomas
Jefferson Street, N.W., Washington, D.C. 2007, Attention: Director,
Corporate Finance Operations, or any other address previously
furnished in writing to the Indenture Trustee by the Issuer or the
Administrator. The Issuer shall promptly transmit any notice received
by it from the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the
Issuer, the Indenture Trustee or the Eligible Lender Trustee shall be in
writing, personally delivered or mailed by certified mail, return receipt
requested, to (i) in the case of Moody's, at the following address: Moody's,
ABS Monitoring Department, 99 Church Street, New York, New York 10007, (ii) in
the case of Standard & Poor's, at the following address: Standard & Poor's, 25
Broadway (20th Floor), New York, New York 10004, Attention of Asset Backed
Surveillance Department, and (iii) in the case of Fitch, at the following
address: One State Street Plaza, New York, New York 10004, Attention
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Municipal Structured Finance Group; or as to each of the foregoing, at such
other address as shall be designated by written notice to the other parties.
SECTION 11.5 Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner
herein provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed
to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default.
SECTION 11.6 Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Notes to the
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contrary, the Issuer may enter into any agreement with any Noteholder providing
for a method of payment, or notice by the Indenture Trustee or any Paying Agent
to such Noteholder, that is different from the methods provided for in this
Indenture for such payments or notices. The Issuer will furnish to the
Indenture Trustee a copy of each such agreement and the Indenture Trustee will
cause payments to be made and notices to be given in accordance with such
agreements.
SECTION 11.7 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
The provisions of TIA Section Section 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
herein unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns. All covenants and agreements
in this Indenture and the Notes by the Issuer shall bind its successor and
assigns, whether so expressed or not. All agreements of the Indenture Trustee
in this Indenture shall bind the successors, co-trustees and agents (excluding
any legal representatives or accountants) of the Indenture Trustee.
SECTION 11.10 Separability. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 11.11 Benefits of Indenture. Nothing in this Indenture or
in the Notes, express or implied, shall give to any Person, other
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than the parties hereto and their successors hereunder, and the Noteholders,
and any other party secured hereunder, and any other Person with an ownership
interest in any part of the Indenture Trust Estate, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 11.12 Legal Holidays. In any case where the date on which
any payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 11.13 Governing Law. This Indenture shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions (other than Section 5-1401 of the New York General
Obligations Law), and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
SECTION 11.14 Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is subject
to recording in any appropriate public recording offices, such recording is to
be effected by the Issuer and at its expense accompanied by an Opinion of
Counsel (which may be counsel to the Indenture Trustee or any other counsel
reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Noteholders or any
other Person secured hereunder or for the enforcement of any right or remedy
granted to the Indenture Trustee under this Indenture.
SECTION 11.16 Trust Obligations. No recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Seller, the
Administrator, the Servicer, the Eligible Lender Trustee or the Indenture
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Trustee on the Notes or under this Indenture or any certificate or other
writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Eligible Lender Trustee in its individual capacity,
(ii) any owner of a beneficial interest in the Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of the Indenture
Trustee or the Eligible Lender Trustee in its individual capacity, any holder
or owner of a beneficial interest in the Issuer, the Eligible Lender Trustee or
the Indenture Trustee or of any successor or assign thereof in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Eligible Lender Trustee have no
such obligations in their individual capacity) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
For all purposes of this Indenture, in the performance of any duties or
obligations of the Issuer hereunder, the Eligible Lender Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Article VI, VII and VIII of the Trust Agreement.
SECTION 11.17 No Petition. The Indenture Trustee, by entering into
this Indenture, and each Noteholder, by accepting a Note, hereby covenant and
agree that they shall not at any time institute against the Seller or the
Issuer, or join in any institution against the Seller or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency, receivership or
liquidation proceedings, or other proceedings under any United States Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Notes, this Indenture or any of the other Basic Documents. The
foregoing shall not limit the rights of the Indenture Trustee to file any claim
in, or otherwise take any action with respect to, any insolvency proceeding
that was instituted against the Issuer by any Person other than the Indenture
Trustee.
SECTION 11.18 Inspection. The Issuer agrees that, on reasonable
prior notice, it shall permit any representative of the Indenture Trustee,
during the Issuer's normal business hours, to examine all the books of account,
records, reports, and other papers of the Issuer, to make copies
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and extracts therefrom, to cause such books to be audited by Independent
certified public accountants, and to discuss the Issuer's affairs, finances and
accounts with the Issuer's officers, employees, and Independent certified
public accountants, all at such reasonable times and as often as may be
reasonably requested. The Indenture Trustee shall and shall cause its
representatives to hold in confidence all such information obtained from such
examination or inspection except to the extent disclosure may be required by
law (and all reasonable applications for confidential treatment are unavailing)
and except to the extent that the Indenture Trustee may reasonably determine
that such disclosure is consistent with its obligations hereunder.
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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized and duly attested, all as of the day and year first above written.
SLM STUDENT LOAN TRUST 1996-3,
by THE CHASE MANHATTAN BANK (USA), not
in its individual capacity but solely as Eligible
Lender Trustee,
by /s/ John W. mack
----------------------------------
Name: John W. Mack
Title: Second Vice President
THE CHASE MANHATTAN BANK (USA),
not in its individual
capacity but solely as
Eligible Lender Trustee,
by /s/ John W. Mack
----------------------------------
Name: John W. Mack
Title: Second Vice President
BANKERS TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee,
by /s/ Lara Graff
----------------------------------
Name: Lara Graff
Title: Assistant Vice President
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APPENDIX A
TO THE INDENTURE
Definitions and Usage
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SCHEDULE A
TO THE INDENTURE
Schedule of Trust Student Loans
[See Schedule A to the Bill of Sale
(Attachment B to the Sale Agreement)]
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SCHEDULE B
TO THE INDENTURE
Location of Trust Student Loan Files
[See Attachment B to the Servicing Agreement]
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EXHIBIT A
TO THE INDENTURE
[FORM OF CLASS A-1 NOTE]
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer (as
defined below) or its agent for registration of transfer, exchange or payment,
and any Note issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS NOTE IS
NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
NUMBER $150,000,000
R-1 CUSIP NO. 78442 GAD 8
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SLM STUDENT LOAN TRUST 1996-3
FLOATING RATE CLASS A-1 STUDENT LOAN-BACKED NOTES
SLM Student Loan Trust 1996-3, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of 150,000,000 DOLLARS payable on each
Distribution Date in an amount equal to the result obtained by multiplying (i)
a fraction the numerator of which is $150,000,000 and the denominator of which
is $901,000,000 by (ii) the aggregate amount, if any, payable to Class A-1
Noteholders on such Distribution Date in respect of principal of the Notes
pursuant to Section 3.1 of the Indenture dated as of July 1, 1996, among the
Issuer, The Chase Manhattan Bank (USA), a Delaware state banking corporation,
as Eligible Lender Trustee on behalf of the Issuer, and Bankers Trust Company,
a New York banking corporation, as Indenture Trustee (the "Indenture Trustee")
(capitalized terms used but not defined herein being defined in Appendix A to
the Indenture, which also contains rules as to usage that shall be applicable
herein); provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the October 2004 Distribution Date (the "Class
A-1 Maturity Date").
The Issuer shall pay interest on this Note at the rate per annum
equal to the Class A-1 Rate (as defined on the reverse hereof), on each
Distribution Date until the principal of this Note is paid or made available
for payment, on the principal amount of this Note outstanding on the preceding
Distribution Date (after giving effect to all payments of principal made on the
preceding Distribution Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note shall accrue from and
including the preceding Distribution Date (or, in the case of the first
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Accrual Period, the Closing Date) to but excluding the following Distribution
Date (each an "Accrual Period"). Interest shall be calculated on the basis of
the actual number of days elapsed in each Accrual Period divided by 365 (or 366
in the case of a leap year). Such principal of and interest on this Note shall
be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be
duly executed, manually or in facsimile, as of the date set forth below.
SLM STUDENT LOAN TRUST 1996-3
by THE CHASE MANHATTAN BANK (USA), not
in its individual capacity but solely as Eligible Lender Trustee
under the Trust Agreement,
by
-------------------------------
Authorized Signatory
Date: July 9, 1996
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
BANKERS TRUST COMPANY, not in its
individual capacity but solely as Indenture Trustee,
by
-------------------------------
Authorized Signatory
Date: July 9, 1996
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[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Floating Rate Class A-1 Student Loan-Backed Notes (the "Class
A-1 Notes"), which, together with the Issuer's Floating Rate Class A-2 Student
Loan-Backed Notes (the "Class A-2 Notes" and, together with the Class A-1
Notes, the "Notes") are issued under and secured by the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights and obligations thereunder of the Issuer,
the Indenture Trustee and the Noteholders. The Notes are subject to all terms
of the Indenture.
The Class A-1 Notes are and will be equally and ratably secured by
the Collateral pledged as security therefor as provided in the Indenture. The
Class A-1 Notes are senior in right of payment to the Class A-2 Notes as and to
the extent provided in the Indenture.
Principal of the Class A-1 Notes shall be payable on each
Distribution Date in an amount described on the face hereof. "Distribution
Date" means the 25th day of each January, April, July and October or, if any
such date is not a Business Day, the next succeeding Business Day, commencing
October 25, 1996.
As described on the face hereof, the entire unpaid principal amount
of this Note shall be due and payable on the Class A-1 Maturity Date.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which (i) an Event of Default shall
have occurred and be continuing and (ii) the Indenture Trustee or the
Noteholders representing not less than a majority of the Outstanding Amount of
the Notes shall have declared the Notes to be immediately due and payable in
the manner provided in
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Section 5.2 of the Indenture. All principal payments on the Class A-1 Notes
shall be made pro rata to the Noteholders entitled thereto.
Interest on the Class A-1 Notes shall be payable on each Distribution
Date on the principal amount outstanding of the Class A-1 Notes until the
principal amount thereof is paid in full, at a rate per annum equal to the
Class A-1 Rate. The "Class A-1 Rate" for each Accrual Period shall be equal to
the lesser of (a) the weighted average of the T-Bill Rates within such Accrual
Period plus 0.49% per annum and (b) the Student Loan Rate for such Accrual
Period. The "Student Loan Rate" for any Accrual Period shall equal the product
of (a) the quotient obtained by dividing (i) 365 (or 366 in the case of a leap
year) by (ii) the actual number of days elapsed in such Accrual Period and (b)
the percentage equivalent of a fraction, (i) the numerator of which is equal to
Expected Interest Collections for the Collection Period relating to such
Accrual Period less the Primary Servicing Fee and the Administration Fee with
respect to such Collection Period, and (ii) the denominator of which is the
Pool Balance as of the first day of such Collection Period.
Any Note Interest Carryover that may exist on any Distribution Date
attributable to the Notes shall be payable to the Noteholders on that
Distribution Date and any succeeding Distribution Dates, solely out of the
funds available and required to be applied thereto pursuant to the
Administration Agreement.
Payments of interest on this Note on each Distribution Date, together
with the installment of principal, if any, to the extent not in full payment of
this Note, shall be made by check mailed to the Person whose name appears as
the Registered Holder of this Note (or one or more Predecessor Notes) on the
Note Register on the Record Date, except that with respect to Notes
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<PAGE> 103
registered on the Record Date in the name of the nominee of the Clearing
Agency, unless Definitive Notes have been issued (initially, such nominee to be
Cede & Co.), payments shall be made by wire transfer in immediately available
funds to the account designated by such nominee. Such checks shall be mailed
to the Person entitled thereto at the address of such Person as it appears on
the Note Register as of the applicable Record Date without requiring that this
Note be submitted for notation of payment, and the mailing of such check shall
constitute payment of the amount thereof regardless of whether such check is
returned undelivered. Any reduction in the principal amount of this Note (or
any one or more Predecessor Notes) effected by any payments made on any
Distribution Date shall be binding upon all future Noteholders of this Note and
of any Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Distribution Date, then the
Indenture Trustee, in the name of and on behalf of the Issuer, shall notify the
Person who was the Noteholder hereof as of the preceding Record Date by notice
mailed no later than five days prior to such Distribution Date and the amount
then due and payable shall be payable only upon presentation and surrender of
this Note at the Indenture Trustee's Corporate Trust Office or at the office of
the Indenture Trustee's agent appointed for such purposes located in the
Borough of Manhattan, The City of New York.
The Issuer shall pay interest on overdue installments of interest on
this Note at the Class A-1 Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or
agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which requirements
include membership or participation in Securities Transfer
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Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP (all in accordance with the Exchange Act), and such other documents
as the Indenture Trustee may require, and thereupon one or more new Notes of
authorized denominations and in the same aggregate principal amount shall be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in the Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Eligible Lender Trustee in
its individual capacity, (ii) any owner of a beneficial interest in the Issuer
or (iii) any partner, owner, beneficiary, agent, officer, director or employee
of the Indenture Trustee or the Eligible Lender Trustee in its individual
capacity, any holder or owner of a beneficial interest in the Issuer, the
Eligible Lender Trustee or the Indenture Trustee or of any successor or assign
thereof in its individual capacity, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the
Eligible Lender Trustee have no such obligations in their individual capacity)
and except that any such partner, owner or beneficiary shall be fully liable,
to the extent provided by applicable law, for any unpaid consideration for
stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that by accepting the benefits of the Indenture such Noteholder or Note Owner
will not at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency, receivership or liquidation
proceedings or other proceedings under any United States Federal or state
98
<PAGE> 105
bankruptcy or similar law in connection with any obligations relating to the
Notes, the Indenture or the other Basic Documents.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day
of determination or as of such other date as may be specified in the Indenture)
is registered as the owner hereof for all purposes whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Noteholders representing a majority of the
Outstanding Amount of all Notes at the time outstanding. The Indenture also
contains provisions permitting the Noteholders representing specified
percentages of the Outstanding Amount of the Notes, on behalf of all the
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the holder of this Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such holder and upon
all future holders of this Note and of any Note issued upon registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent or waiver is made upon this Note. The Indenture also permits
the Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
99
<PAGE> 106
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note shall be construed in accordance with the laws of the State
of New York, without reference to its conflict of law provisions, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place, and rate, and in the coin or currency, herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Bankers Trust Company in its
individual capacity, The Chase Manhattan Bank (USA) in its individual capacity,
any owner of a beneficial interest in the Issuer, nor any of their respective
partners, beneficiaries, agents, officers, directors, employees or successors
or assigns shall be personally liable for, nor shall recourse be had to any of
them for, the payment of principal of or interest on, or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in this Note or the Indenture; it being expressly understood that
said covenants, obligations and indemnifications have been made by the Eligible
Lender Trustee for the sole purposes of binding the interests of the Eligible
Lender Trustee in the assets of the Issuer. The Noteholder of this Note by the
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the
Noteholder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained in
the Indenture or in this Note.
100
<PAGE> 107
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- --------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________ attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated:
-------------------------------
------------------------------------ */
Signature Guaranteed:
------------------------------------ */
- ----------------------
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in
101
<PAGE> 108
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
102
<PAGE> 109
EXHIBIT B
TO THE INDENTURE
Note Depository Agreement
103
<PAGE> 1
EXHIBIT 19.1
SALLIE MAE STUDENT LOAN TRUST
- --------------------------------------------------------------------------------
1995-1
QUARTERLY SERVICING REPORT
REPORTING PERIOD: 4/1/96-6/30/96
DISTRIBUTION DATE: 7/25/96
Questions?
1-800-321-7179
<PAGE> 2
SALLIE MAE STUDENT LOAN TRUST 1995-1
OFFICER'S CERTIFICATE
INDENTURE TRUSTEE ELIGIBLE LENDER TRUSTEE
- ----------------- -----------------------
Bankers Trust Company Chase Manhattan Bank (USA)
Four Albany Street 1 Chase Manhattan Plaza
New York, NY 10006 Wilmington, Delaware 19801-1398
Attn: Corporate Trust & Agency Group Attn: Manager, Trust Division
(212) 250-6547 (302) 575-5022
ADMINISTRATOR SERVICER
- ------------- --------
Sallie Mae Sallie Mae Servicing Corporation
11600 Sallie Mae Drive 11600 Sallie Mae Drive
Reston, Virginia 20190-4798 Reston, Virginia 20193
Attn: Director, Corporate Finance ATTN: Director
Operations ABS Administration
(703) 810-7711
================================================================================
Pursuant to Section 3.1 of the Administration Agreement (the "Agreement"), we,
the undersigned, hereby certify that (i) a review of the activities and
performance of the Servicer and Administrator from April 1, 1996 through June
30, 1996 has been made, and (ii) to the best of our knowledge, the Servicer and
Administrator have fulfilled their obligations under the Agreement throughout
such period.
July 19, 1996
SALLIE MAE, AS ADMINISTRATOR
/s/ Robert R. Levine
- -----------------------------------
Robert R. Levine, Vice President
and Treasurer
/s/ Mark G. Overend
- -----------------------------------
Mark G. Overend, Vice President
and Controller
<PAGE> 3
SALLIE MAE STUDENT LOAN TRUST 1995-1
QUARTERLY SERVICING REPORT
REPORT DATE: 06/30/96 REPORTING PERIOD: 4/01/96-6/30/96
I. DEAL PARAMETERS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
A STUDENT LOAN PORTFOLIO CHARACTERISTICS 03/31/96 ACTIVITY 06/30/96
--------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
i Portfolio Balance $905,375,401.17 ($51,617,943.98) $853,757,457.19
ii Interest to be Capitalized $602,404.08 $677,908.07
--------------- ---------------
iii TOTAL POOL $905,977,805.25 $854,435,365.26
=============== ===============
B i Weighted Average Coupon (WAC) 8.3411% 8.3443%
ii Weighted Average Remaining Term 86.05 84.75
iii Number of Loans 499,528 480,738
iv Number of Borrowers 215,291 207,681
--------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
C NOTES AND CERTIFICATES SPREAD BALANCE 4/25/96 % OF POOL BALANCE 7/25/96 % OF POOL
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
i A-1 Notes 795452AA9 0.575% $655,977,805.25 72.406% $604,435,365.26 70.741%
ii A-2 Notes 795452AB7 0.750% $215,000,000.00 23.731% $215,000,000.00 25.163%
iii Certificates 795452AC5 1.000% $35,000,000.00 3.863% $35,000,000.00 4.096%
-------------------------------------------------------------------------------------------------------------------------
iv TOTAL NOTES AND CERTIFICATES $905,977,805.25 100.000% $854,435,365.26 100.000%
=========================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
D RESERVE ACCOUNT 04/25/96 07/25/96
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
i Required Reserve Acct Deposit (%) 0.50% 0.50%
ii Reserve Acct Initial Deposit ($)
iii Specified Reserve Acct Balance ($) $4,529,889.03 $4,272,176.83
iv Reserve Account Floor Balance ($) $1,000,000.00 $1,000,000.00
v Current Reserve Acct Balance ($) $4,529,889.03 $4,272,176.83
----------------------------------------------------------------------------------------------------------
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1995-1 Page 1
<PAGE> 4
II. TRANSACTIONS FROM: 04/01/96 THROUGH: 06/30/96
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
A STUDENT LOAN PRINCIPAL ACTIVITY
i Regular Principal Collections $41,999,553.67
ii Principal Collections from Guarantor $6,580,254.84
iii Principal Reimbursements $3,722,370.03
iv Other System Adjustments ($48.49)
--------
v TOTAL PRINCIPAL COLLECTIONS $52,302,130.05
B STUDENT LOAN NON-CASH PRINCIPAL ACTIVITY
i Other Adjustments $185,344.16
ii Capitalized Interest ($869,530.23)
-------------
iii TOTAL NON-CASH PRINCIPAL ACTIVITY ($684,186.07)
----------------------------------------------------------------------
C TOTAL STUDENT LOAN PRINCIPAL ACTIVITY $51,617,943.98
----------------------------------------------------------------------
D STUDENT LOAN INTEREST ACTIVITY
i Regular Interest Collections $16,104,237.23
ii Interest Claims Received from Guarantors $410,448.66
iii Interest Reimbursements $33,086.35
iv Other System Adjustments ($14.31)
v Special Allowance Payments $537,884.11
vi Subsidy Payments $836,267.57
-----------
vii TOTAL INTEREST COLLECTIONS $17,921,909.61
E STUDENT LOAN NON-CASH INTEREST ACTIVITY
i Interest Accrual Adjustment ($112,327.13)
ii Capitalized Interest $869,530.23
-----------
iii TOTAL NON-CASH INTEREST ADJUSTMENTS $757,203.10
----------------------------------------------------------------------
F TOTAL STUDENT LOAN INTEREST ACTIVITY $18,679,112.71
----------------------------------------------------------------------
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1995-1 Page 2
<PAGE> 5
III. COLLECTION ACCOUNT ACTIVITY 04/01/96 THROUGH 06/30/96
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
A PRINCIPAL COLLECTIONS
i Principal Payments Received-Cash $48,579,808.51
ii Cash Forwarded by Administrator on behalf of Seller $1,095,912.08
iii Cash Forwarded by Administrator on behalf of Servicer $2,077.71
iv Cash Forwarded by Administrator for Consolidation Activity $2,624,331.75
-------------
v TOTAL PRINCIPAL COLLECTIONS $52,302,130.05
B INTEREST COLLECTIONS
i Interest Payments Received-Cash $17,888,837.57
ii Cash Forwarded by Administrator on behalf of Seller $10,400.78
iii Cash Forwarded by Administrator on behalf of Servicer $2,587.37
iv Cash Forwarded by Administrator for Consolidation Activity $20,083.89
----------
v TOTAL INTEREST COLLECTIONS $17,921,909.61
C OTHER REIMBURSEMENTS $55,753.89
D ADMINISTRATOR ACCOUNT INVESTMENT INCOME $506,107.02
E TOTAL FUNDS RECEIVED $70,785,900.57
(LESS: SERVICING FEES PREVIOUSLY REMITTED) ($1,371,209.60)
---------------------------------------------------------------------------------------------------
TOTAL FUNDS TRANSFERRED TO COLLECTION ACCOUNT $69,414,690.97
---------------------------------------------------------------------------------------------------
F SERVICING FEE CALCULATION-CURRENT MONTH
i Unit Charge Calculation $673,904.00
ii Percentage of Principal Calculation $1,096,275.70
iii Lesser of Unit or Principal Calculation $673,904.00
G SERVICING FEES DUE FOR CURRENT PERIOD $673,904.00
H CARRYOVER SERVICING FEES DUE $1,304,221.48
APR 1996 Servicing Carryover $450,332.85
MAY 1996 Servicing Carryover $436,182.01
JUN 1996 Servicing Carryover $422,371.70
-----------------
$1,308,886.56
Less: Servicing ADJ [A iii + B iii] ($4,665.08)
-----------------
Carryover Servicing Fee Due $1,304,221.48
=================
I ADMINISTRATION FEES DUE $20,000.00
---------------------------------------------------------------------------------------------------
J TOTAL FEES DUE FOR PERIOD $1,998,125.48
---------------------------------------------------------------------------------------------------
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1995-1 Page 3
<PAGE> 6
IV. PORTFOLIO CHARACTERISTICS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------
WEIGHTED AVG COUPON # OF LOANS %
- ----------------------------------------------------------------------------------------------------------
STATUS 03/31/96 06/30/96 03/31/96 06/30/96 03/31/96 06/30/96
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
INTERIM:
IN SCHOOL
Current 8.4236% 8.3938% 518 463 0.1037% 0.0963%
GRACE
Current 8.3998% 8.4151% 267 236 0.0535% 0.0491%
- ----------------------------------------------------------------------------------------------------------
TOTAL INTERIM 8.4161% 8.4012% 785 699 0.1571% 0.1454%
- ----------------------------------------------------------------------------------------------------------
REPAYMENT
ACTIVE
Current 8.3337% 8.3358% 439,544 421,952 87.9919% 87.7717%
31-60 Days Delinquent 8.4048% 8.4178% 17,512 18,578 3.5057% 3.8645%
61-90 Days Delinquent 8.4325% 8.4499% 5,415 6,268 1.0840% 1.3038%
91-120 Days Delinquent 8.4598% 8.4367% 2,209 2,853 0.4422% 0.5935%
Greater than 120 Days
Delinquent 8.4437% 8.4440% 9,059 4,180 1.8135% 0.8695%
DEFERMENT
Current 8.3416% 8.3433% 16,500 14,578 3.3031% 3.0324%
FORBEARANCE
Current 8.3285% 8.3282% 7,366 7,617 1.4746% 1.5844%
- ----------------------------------------------------------------------------------------------------------
TOTAL REPAYMENT 8.3407% 8.3430% 497,605 476,026 99.6150% 99.0198%
- ----------------------------------------------------------------------------------------------------------
CLAIMS IN PROCESS (1) 8.4549% 8.4693% 1,138 4,013 0.2278% 0.8348%
AGED CLAIMS REJECTED (2) 0% 0% - - 0% 0%
- ----------------------------------------------------------------------------------------------------------
GRAND TOTAL 8.3412% 8.3443% 499,528 480,738 100.00% 100.00%
- ----------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
------------------------------------------------------------------
PRINCIPAL AMOUNT %
- ---------------------------------------------------------------------------------------------------
STATUS 03/31/96 06/30/96 03/31/96 06/30/96
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
INTERIM:
IN SCHOOL
Current $1,150,285.61 $996,019.15 0.1271% 0.1167%
GRACE
Current $523,421.82 $530,365.75 0.0578% 0.0621%
- ---------------------------------------------------------------------------------------------------
TOTAL INTERIM $1,673,707.43 $1,526,384.90 0.1849% 0.1788%
- ---------------------------------------------------------------------------------------------------
REPAYMENT
ACTIVE
Current $780,738,441.77 $732,403,998.02 86.2337% 85.7860%
31-60 Days Delinquent $33,888,099.61 $36,020,757.54 3.7430% 4.2191%
61-90 Days Delinquent $10,873,860.48 $12,890,374.94 1.2010% 1.5098%
91-120 Days Delinquent $4,631,238.55 $6,127,438.95 0.5115% 0.7177%
Greater than 120 Days
Delinquent $19,035,951.90 $8,552,575.25 2.1025% 1.0018%
DEFERMENT
Current $36,059,548.70 $31,671,220.91 3.9828% 3.7096%
FORBEARANCE
Current $16,133,919.10 $16,790,639.37 1.7820% 1.9667%
- ---------------------------------------------------------------------------------------------------
TOTAL REPAYMENT $901,361,060.11 $844,457,004.98 99.5566% 98.9106%
- ---------------------------------------------------------------------------------------------------
CLAIMS IN PROCESS (1) $2,340,633.62 $7,774,067.30 0.2585% 0.9106%
AGED CLAIMS REJECTED (2) $ - $ - 0% 0%
- ---------------------------------------------------------------------------------------------------
GRAND TOTAL $905,375,401.16 $853,757,457.18 100.00% 100.00%
- ---------------------------------------------------------------------------------------------------
</TABLE>
(1) CLAIMS FILED AND UNPAID; INCLUDES CLAIMS REJECTED AGED LESS THAN 6 MONTHS.
(2) CLAIMS REJECTED (SUBJECT TO CURE) AGED 6 MONTHS OR MORE; ALSO INCLUDES
CLAIMS DEEMED INCURABLE PENDING REPURCHASE.
SALLIE MAE STUDENT LOAN TRUST 1995-1 Page 4
<PAGE> 7
V. INTEREST CALCULATION
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
A Borrower Interest Accrued During Collection Period $17,354,368.62
B Interest Subsidy Payments Accrued During Collection Period $766,579.31
C SAP Payments Accrued During Collection Period $687,255.54
D INV Earnings Accrued for Collection Period (RESERVE & COLLECTION ACTS) $69,970.18
E Investment Earnings (ADMINISTRATOR ACT) $506,107.02
--------------
F NET EXPECTED INTEREST COLLECTIONS $19,384,280.67
G STUDENT LOAN RATE
i Days in Collection Period (4/01/96-06/30/96) 91
ii Days in Year 366
iii Net Expected Interest Collections $19,384,280.67
iv Primary Servicing Fee $2,045,113.60
v Administration Fee $20,000.00
vi Total Pool Balance at Beginning of Collection Period $905,977,805.25
vii STUDENT LOAN RATE 7.68863%
</TABLE>
<TABLE>
<CAPTION>
ACCRUED
INT FACTOR ACCRUAL PERIOD
---------- --------------
<S> <C> <C> <C> <C>
H Class A-1 T-Bill Based Interest Rate 5.79544%
I CLASS A-1 INTEREST RATE 0.014409426 (4/25/96-7/25/96) 5.79544%
J Class A-2 T-Bill Based Interest Rate 5.97044%
K CLASS A-2 INTEREST RATE 0.014844536 (4/25/96-7/25/96) 5.97044%
L Certificate T-Bill Based Rate of Return 6.22044%
M CERTIFICATE RATE OF RETURN 0.015466120 (4/25/96-7/25/96) 6.22044%
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1995-1 Page 5
<PAGE> 8
VI. INPUTS FROM PREVIOUS QUARTERLY SERVICING REPORTS 03/31/96
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
A Total Student Loan Pool Outstanding
i Current Pool Balance $905,375,401.17
ii Interest To Be Capitalized $602,404.08
-----------------
iii TOTAL STUDENT LOAN POOL OUTSTANDING $905,977,805.25
=================
B Total Note and Certificate Factor 0.90597780525
C TOTAL NOTE AND CERTIFICATE BALANCE $905,977,805.25
</TABLE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------
D NOTE BALANCE 04/25/96 CLASS A-1 CLASS A-2 CERTIFICATES
--------------------------------------------------------------------------------------------------------
<S> <C> <C>
i Current Factor-4/25/96 0.8746370737 1.0000000000 1.0000000000
ii Note Principal Shortfall $0.00 $0.00 $0.00
iii Expected Note Balance $655,977,805.25 $215,000,000.00 $35,000,000.00
--------------------------------------------------
iv NOTE BALANCE $655,977,805.25 $215,000,000.00 $35,000,000.00
==================================================
E Interest Shortfall $0.00 $0.00 $0.00
F Interest Carryover $0.00 $0.00 $0.00
--------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C>
G Reserve Account Balance $4,529,889.03
H Unpaid Primary Servicing Fees from Prior Month(s) $0.00
I Unpaid Administration fees from Prior Quarter(s) $0.00
J Unpaid Carryover Servicing Fees from Prior Quarter(s) $0.00
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1995-1 Page 6
<PAGE> 9
VII. WATERFALL FOR DISTRIBUTIONS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
REMAINING
FUNDS BALANCE
-------------
<S> <C> <C>
A TOTAL AVAILABLE FUNDS (SECTION III E + SECTION V-D) $69,484,661.15 $69,484,661.15
B PRIMARY SERVICING FEES-CURRENT MONTH $673,904.00 $68,810,757.15
C ADMINISTRATION FEE-QUARTERLY $20,000.00 $68,790,757.15
D NOTEHOLDER'S INTEREST DISTRIBUTION AMOUNT
i Class A-1 $9,452,263.64 $59,338,493.51
ii Class A-2 $3,191,575.24 $56,146,918.27
--------------
iii TOTAL NOTEHOLDER'S INTEREST DISTRIBUTION $12,643,838.88
E CERTIFICATEHOLDER'S RETURN DISTRIBUTION AMOUNT $541,314.20 $55,605,604.07
F NOTEHOLDER'S PRINCIPAL DISTRIBUTION AMOUNT
i Class A-1 $51,542,439.99 $4,063,164.08
ii Class A-2 $0.00 $4,063,164.08
--------------
iii TOTAL NOTEHOLDER'S PRINCIPAL DISTRIBUTION $51,542,439.99
G CERTIFICATEHOLDER'S BALANCE DISTRIBUTION AMOUNT $0.00 $4,063,164.08
H INCREASE TO THE SPECIFIED RESERVE ACCOUNT BALANCE $0.00 $4,063,164.08
I CARRYOVER SERVICING FEES $1,304,221.48 $2,758,942.60
J NOTEHOLDER'S INTEREST CARRYOVER
i Class A-1 $0.00 $2,758,942.60
i Class A-2 $0.00 $2,758,942.60
--------------
iii TOTAL NOTEHOLDER'S INTEREST CARRYOVER $0.00
K CERTIFICATEHOLDER'S RETURN CARRYOVER $0.00 $2,758,942.60
L EXCESS TO RESERVE ACCOUNT $2,758,942.60 $0.00
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1995-1 Page 7
<PAGE> 10
VIII. DISTRIBUTIONS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
A DISTRIBUTION AMOUNTS CLASS A-1 CLASS A-2 CERTIFICATES
--------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
i Quarterly Interest Due $9,452,263.64 $3,191,575.24 $541,314.20
ii Quarterly Interest Paid $9,452,263.64 $3,191,575.24 $541,314.20
-------------- ------------- -----------
iii INTEREST SHORTFALL $0.00 $0.00 $0.00
iv Interest Carryover Due $0.00 $0.00 $0.00
v Interest Carryover Paid $0.00 $0.00 $0.00
-------------- ------------- -----------
vi INTEREST CARRYOVER $0.00 $0.00 $0.00
vii Quarterly Principal Due (B) $51,542,439.99 $0.00 $0.00
viii Quarterly Principal Paid $51,542,439.99 $0.00 $0.00
-------------- ------------- -----------
ix QUARTERLY PRINCIPAL SHORTFALL $0.00 $0.00 $0.00
--------------------------------------------------------------------------------------------------------------------
x TOTAL DISTRIBUTION AMOUNT $60,994,703.63 $3,191,575.24 $541,314.20
--------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C> <C>
B PRINCIPAL DISTRIBUTION RECONCILIATION
i Notes and Certificates Principal Balance 6/30/96 $905,977,805.25
ii Pool Balance 06/30/96 $854,435,365.26
---------------
iii Principal Distribution Amount $51,542,439.99
===============
C Total Principal Distribution $51,542,439.99
D Total Interest Distribution $13,185,153.08
--------------
E TOTAL CASH DISTRIBUTIONS-NOTE AND CERTIFICATES $64,727,593.07
</TABLE>
<TABLE>
<CAPTION>
F NOTE & CERTIFICATE BALANCES 04/25/96 07/25/96
------------------------------------------------------------------------------
<S> <C> <C> <C>
i A-1 Note Balance $655,977,805.25 $604,435,365.26
A-1 Note Pool Factor 0.8746370737 0.8059138203
ii A-2 Note Balance $215,000,000.00 $215,000,000.00
A-2 Note Pool Factor 1.0000000000 1.0000000000
iii Certificate Balance $35,000,000.00 $35,000,000.00
Certificate Pool Factor 1.0000000000 1.0000000000
------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C>
G RESERVE ACCOUNT RECONCILIATION
i Beginning of Period Balance $4,529,889.03
ii Deposits to correct Shortfall $0.00
iii Deposits from Excess Servicing $2,758,942.60
-------------
iv Total Reserve Account Balance Available $7,288,831.63
v Required Reserve Account Balance $4,272,176.83
vi Shortfall Carried to Next Period $0.00
vii Excess Reserve - Release to SLM Funding Corp $3,016,654.80
viii Ending Reserve Account Balance $4,272,176.83
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1995-1 Page 8
<PAGE> 11
IX. HISTORICAL POOL INFORMATION
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
----------------------------------------------------------
4/1/96 - 6/30/96 1/1/96 - 3/31/96 9/29/95 - 12/31/95
---------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGINNING STUDENT LOAN PORTFOLIO BALANCE $905,375,401.17 $954,345,726.48 $1,000,126,078.04
---------------------------------------------------------------------------------------------------------------------
STUDENT LOAN PRINCIPAL ACTIVITY
i Regular Principal Collections $ 41,999,553.67 $ 45,086,756.56 $ 42,875,612.89
ii Principal Collections from Guarantor $ 6,580,254.84 $ 482,294.51 $ 92,046.91
iii Principal Reimbursements $ 3,722,370.03 $ 4,554,369.19 $ 2,775,561.40
iv Other System Adjustments $ (48.49) $ 0.00 $ 39,190.77
-------------------------------------------------------
v Total Principal Collections $ 52,302,130.05 $ 50,123,420.26 $ 45,782,411.97
Student Loan Non-Cash Principal Activity
i Other Adjustments $ 185,344.16 $ 150,766.06 $ 233,926.53
ii Capitalized Interest $ (869,530.23) $ (1,303,861.01) $ (235,986.94)
-------------------------------------------------------
iii Total Non-Cash Principal Activity $ (684,186.07) $ (1,153,094.95) $ (2,060.41)
---------------------------------------------------------------------------------------------------------------------
(-) TOTAL STUDENT LOAN PRINCIPAL ACTIVITY $ 51,617,943.98 $ 48,970,325.31 $ 45,780,351.56
---------------------------------------------------------------------------------------------------------------------
STUDENT LOAN INTEREST ACTIVITY
i Regular Interest Collections $ 16,104,237.23 $ 18,105,760.68 $ 18,633,508.65
ii Interest Claims Received from Guarantors $ 410,448.66 $ 13,929.01 $ 3,259.20
iii Interest Reimbursements $ 33,086.35 $ 39,560.27 $ 17,871.78
iv Other System Adjustments $ (14.31) $ 0.00 $ 7.70
v Special Allowance Payments $ 537,884.11 $ 1,112,141.11 $ 43,719.37
vi Subsidy Payments $ 836,267.57 $ 683,029.83 $ 5,919.00
-------------------------------------------------------
vii Total Interest Collections $ 17,921,909.61 $ 19,954,420.90 $ 18,704,285.70
Student Loan Non-Cash Interest Activity
i Interest Accrual Adjustment $ (112,327.13) $ (144,452.46) $ (227,131.25)
ii Capitalized Interest $ 869,530.23 $ 1,303,861.01 $ 235,986.94
-------------------------------------------------------
iii Total Non-Cash Interest Adjustments $ 757,203.10 $ 1,159,408.55 $ 8,855.69
-------------------------------------------------------
TOTAL STUDENT LOAN INTEREST ACTIVITY $ 18,679,112.71 $ 21,113,829.45 $ 18,713,141.39
(=) ENDING STUDENT LOAN PORTFOLIO BALANCE $853,757,457.19 $905,375,401.17 $ 954,345,726.48
---------------------------------------------------------------------------------------------------------------------
(+) INTEREST TO BE CAPITALIZED $ 677,908.07 $ 602,404.08 $ 639,070.92
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
(=) TOTAL POOL $854,435,365.26 $905,977,805.25 $ 954,984,797.40
---------------------------------------------------------------------------------------------------------------------
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1995-1 Page 9
<PAGE> 12
SALLIE MAE STUDENT LOAN TRUST 1995-1
PAYMENT HISTORY AND CPRS
<TABLE>
<CAPTION>
DISTRIBUTION ACTUAL SINCE ISSUED
DATE POOL BALANCES CPR*
<S> <C> <C>
Oct-95 $ 1,000,126,078
Jan-96 $ 954,984,797 4.9%
Apr-96 $ 905,977,805 5.0%
Jul-96 $ 854,435,365 5.7%
</TABLE>
*"Since Issued CPR" is based on the current period's ending pool balance
calculated against the original pool balance and assuming cutoff date pool
data.
<PAGE> 13
SALLIE MAE STUDENT LOAN TRUST
- --------------------------------------------------------------------------------
1996-1
QUARTERLY SERVICING REPORT
REPORTING PERIOD: 4/1/96-6/30/96
DISTRIBUTION DATE: 7/25/96
Questions?
1-800-321-7179
<PAGE> 14
SALLIE MAE STUDENT LOAN TRUST 1996-1
OFFICER'S CERTIFICATE
INDENTURE TRUSTEE ELIGIBLE LENDER TRUSTEE
- ----------------- -----------------------
Bankers Trust Company Chase Manhattan Bank (USA)
Four Albany Street 1 Chase Manhattan Plaza
New York, NY 10006 Wilmington, Delaware 19801-1398
Attn: Corporate Trust & Agency Group Attn: Manager, Trust Division
(212) 250-6547 (302) 575-5022
ADMINISTRATOR SERVICER
- ------------- --------
Sallie Mae Sallie Mae Servicing Corporation
11600 Sallie Mae Drive 11600 Sallie Mae Drive
Reston, Virginia 20190-4798 Reston, Virginia 20193
Attn: Director, Corporate Finance ATTN: Director ABS Administration
Operations
(703) 810-7711
================================================================================
Pursuant to Section 3.1 of the Administration Agreement (the "Agreement"), we,
the undersigned, hereby certify that (i) a review of the activities and
performance of the Servicer and Administrator from April 1, 1996 through June
30, 1996 has been made, and (ii) to the best of our knowledge, the Servicer and
Administrator have fulfilled their obligations under the Agreement throughout
such period.
July 19, 1996
SALLIE MAE, AS ADMINISTRATOR
/s/ Robert R. Levine
- ----------------------------------
Robert R. Levine, Vice President
and Treasurer
/s/ Mark G. Overend
- ----------------------------------
Mark G. Overend, Vice President
and Controller
<PAGE> 15
SALLIE MAE STUDENT LOAN TRUST 1996-1
QUARTERLY SERVICING REPORT
REPORT DATE: 06/30/96 REPORTING PERIOD: 4/01/96-6/30/96
I. DEAL PARAMETERS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
A STUDENT LOAN PORTFOLIO CHARACTERISTICS 03/31/96 ACTIVITY 06/30/96
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
i Portfolio Balance $1,459,260,458.15 ($48,301,974.00) $1,410,958,484.15
ii Interest to be Capitalized $12,610,267.46 $10,991,431.27
----------------- -----------------
iii TOTAL POOL $1,471,870,725.61 $1,421,949,915.42
================= =================
B i Weighted Average Coupon (WAC) 8.3737% 8.3764%
ii Weighted Average Remaining Term 103.00 101.80
iii Number of Loans 607,764 594,758
iv Number of Borrowers 231,513 227,373
---------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
C NOTES AND CERTIFICATES SPREAD BALANCE 4/25/96 % OF POOL BALANCE 7/25/96 % OF POOL
---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
i A-1 Notes 795452AD3 0.56% $ 945,870,725.61 64.263% $ 895,949,915.42 63.009%
ii A-2 Notes 795452AE1 0.75% $ 473,500,000.00 32.170% $ 473,500,000.00 33.299%
iii Certificates 795452AF8 0.98% $ 52,500,000.00 3.567% $ 52,500,000.00 3.692%
---------------------------------------------------------------------------------------------------------------------
iv TOTAL NOTES AND CERTIFICATES $1,471,870,725.61 100.000% $1,421,949,915.42 100.000%
=====================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
D RESERVE ACCOUNT 04/25/96 07/25/96
------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
i Required Reserve Acct Deposit (%) 0.25% 0.25%
ii Reserve Acct Initial Deposit ($)
iii Specified Reserve Acct Balance ($) $3,679,676.81 $3,554,874.79
iv Reserve Account Floor Balance ($) $1,500,000.00 $1,500,000.00
v Current Reserve Acct Balance ($) $3,679,676.81 $3,554,874.79
------------------------------------------------------------------------------------------------------
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1996-1 Page 1
<PAGE> 16
II. TRANSACTIONS FROM: 04/01/96 THROUGH: 06/30/96
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
A STUDENT LOAN PRINCIPAL ACTIVITY
i Regular Principal Collections $41,078,207.45
ii Principal Collections from Guarantor $842,636.38
iii Principal Reimbursements $12,387,879.90
iv Other System Adjustments ($548.12)
---------
v TOTAL PRINCIPAL COLLECTIONS $54,308,175.61
B STUDENT LOAN NON-CASH PRINCIPAL ACTIVITY
i Other Adjustments $1,000,024.50
ii Capitalized Interest ($7,006,226.11)
---------------
iii TOTAL NON-CASH PRINCIPAL ACTIVITY ($6,006,201.61)
----------------------------------------------------------------------
C TOTAL STUDENT LOAN PRINCIPAL ACTIVITY $48,301,974.00
----------------------------------------------------------------------
D STUDENT LOAN INTEREST ACTIVITY
i Regular Interest Collections $17,084,616.87
ii Interest Claims Received from Guarantors $21,865.02
iii Interest Reimbursements $142,527.81
iv Other System Adjustments $244.79
v Special Allowance Payments $343,884.36
vi Subsidy Payments $4,651,078.41
---------------
vii TOTAL INTEREST COLLECTIONS $22,244,217.26
E STUDENT LOAN NON-CASH INTEREST ACTIVITY
i Interest Accrual Adjustment ($994,738.78)
ii Capitalized Interest $7,006,226.11
---------------
iii TOTAL NON-CASH INTEREST ADJUSTMENTS $6,011,487.33
----------------------------------------------------------------------
F TOTAL STUDENT LOAN INTEREST ACTIVITY $28,255,704.59
----------------------------------------------------------------------
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1996-1 Page 2
<PAGE> 17
III. COLLECTION ACCOUNT ACTIVITY 04/01/96 THROUGH 06/30/96
<TABLE>
<S> <C> <C>
A PRINCIPAL COLLECTIONS
i Principal Payments Received-Cash $41,920,843.83
ii Cash Forwarded by Administrator on behalf of Seller $2,700,734.39
iii Cash Forwarded by Administrator on behalf of Servicer $7,850.63
iv Cash Forwarded by Administrator for Consolidation Activity $9,678,746.76
-------------
v TOTAL PRINCIPAL COLLECTIONS $54,308,175.61
B INTEREST COLLECTIONS
i Interest Payments Received-Cash $22,101,444.66
ii Cash Forwarded by Administrator on behalf of Seller $32,495.93
iii Cash Forwarded by Administrator on behalf of Servicer $180.86
iv Cash Forwarded by Administrator for Consolidation Activity $110,095.81
-----------
v TOTAL INTEREST COLLECTIONS $22,244,217.26
C OTHER REIMBURSEMENTS $55,778.84
D ADMINISTRATOR ACCOUNT INVESTMENT INCOME $444,243.81
E TOTAL FUNDS RECEIVED $77,052,415.52
(LESS: SERVICING FEES PREVIOUSLY REMITTED) ($1,777,618.15)
--------------------------------------------------------------------------------------------------
TOTAL FUNDS TRANSFERRED TO COLLECTION ACCOUNT $75,274,797.37
--------------------------------------------------------------------------------------------------
F SERVICING FEE CALCULATION-CURRENT MONTH
i Unit Charge Calculation $880,883.85
ii Percentage of Principal Calculation $1,307,261.28
iii Lesser of Unit or Principal Calculation $880,883.85
G SERVICING FEES DUE FOR CURRENT PERIOD $880,883.85
H CARRYOVER SERVICING FEES DUE $1,300,175.33
APR 1996 Servicing Carryover $446,330.37
MAY 1996 Servicing Carryover $435,499.02
JUN 1996 Servicing Carryover $426,377.43
--------------
$1,308,206.82
LESS: Servicing ADJ [A iii + B iii] ($8,031.49)
--------------
TOTAL CARRYOVER SERVICING FEE DUE $1,300,175.33
==============
I ADMINISTRATION FEES DUE $20,000.00
--------------------------------------------------------------------------------------------------
J TOTAL FEES DUE FOR PERIOD $2,201,059.18
--------------------------------------------------------------------------------------------------
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1996-1 Page 3
<PAGE> 18
IV. PORTFOLIO CHARACTERISTICS
<TABLE>
<CAPTION>
--------------------------------------------------------------------------
WEIGHTED AVG COUPON # OF LOANS %
--------------------------------------------------------------------------
STATUS 03/31/96 06/30/96 03/31/96 06/30/96 03/31/96 06/30/96
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
INTERIM:
IN SCHOOL
Current 8.3277% 8.3317% 61,507 42,207 10.1202% 7.0965%
GRACE
Current 8.3106% 8.3082% 20,917 26,179 3.4416% 4.4016%
- -----------------------------------------------------------------------------------------------------
TOTAL INTERIM 8.3234% 8.3225% 82,424 68,386 13.5618% 11.4981%
- -----------------------------------------------------------------------------------------------------
REPAYMENT
ACTIVE
Current 8.3633% 8.3683% 382,608 391,490 62.9534% 65.8234%
31-60 Days Delinquent 8.4236% 8.4461% 25,328 28,418 4.1674% 4.7781%
61-90 Days Delinquent 8.4315% 8.4443% 14,362 10,742 2.3631% 1.8061%
91-120 Days Delinquent 8.3893% 8.4188% 9,445 6,061 1.5541% 1.0191%
Greater than 120 Days
Delinquent 8.4605% 8.4253% 3,390 12,512 0.5578% 2.1037%
DEFERMENT
Current 8.4468% 8.4259% 66,197 56,552 10.8919% 9.5084%
FORBEARANCE
Current 8.3833% 8.3972% 23,854 18,963 3.9249% 3.1884%
- -----------------------------------------------------------------------------------------------------
TOTAL REPAYMENT 8.3835% 8.3852% 525,184 524,738 86.4125% 88.2271%
- -----------------------------------------------------------------------------------------------------
CLAIMS IN PROCESS (1) 0.0000% 8.4262% 156 1,634 0.0257% 0.2747%
AGED CLAIMS REJECTED (2) 0.0000% 0.0000% - - 0% 0%
- -----------------------------------------------------------------------------------------------------
GRAND TOTAL 8.3737% 8.3764% 607,764 594,758 100.00% 100.00%
- -----------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------------------------
PRINCIPAL AMOUNT %
---------------------------------------------------------------
STATUS 03/31/96 06/30/96 03/31/96 06/30/96
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
INTERIM:
IN SCHOOL
Current $ 182,004,479.56 $ 123,707,891.46 12.4724% 8.7676%
GRACE
Current $ 61,382,916.14 $ 79,219,632.85 4.2064% 5.6146%
- ---------------------------------------------------------------------------------------------
TOTAL INTERIM $ 243,387,395.70 $ 202,927,524.31 16.6788% 14.3822%
- ---------------------------------------------------------------------------------------------
REPAYMENT
ACTIVE
Current $ 828,361,503.62 $ 849,039,643.81 56.7658% 60.1747%
31-60 Days Delinquent $ 55,829,878.25 $ 62,560,873.31 3.8259% 4.4339%
61-90 Days Delinquent $ 35,272,813.20 $ 25,356,196.93 2.4172% 1.7971%
91-120 Days Delinquent $ 23,663,361.51 $ 14,611,465.45 1.6216% 1.0356%
Greater than 120 Days
Delinquent $ 7,984,804.35 $ 30,315,604.32 0.5472% 2.1486%
DEFERMENT
Current $ 191,178,439.88 $ 163,574,096.50 13.1010% 11.5931%
FORBEARANCE
Current $ 73,190,091.13 $ 58,659,931.57 5.0156% 4.1575%
- ---------------------------------------------------------------------------------------------
TOTAL REPAYMENT $1,215,480,891.94 $1,204,117,811.89 83.2943% 85.3404%
- ---------------------------------------------------------------------------------------------
CLAIMS IN PROCESS (1) $ 392,170.50 $ 3,913,147.94 0.0269% 0.2773%
AGED CLAIMS REJECTED (2) $ - $ - 0% 0%
- ---------------------------------------------------------------------------------------------
GRAND TOTAL $1,459,260,458.14 $1,410,958,484.14 100.00% 100.00%
- ---------------------------------------------------------------------------------------------
</TABLE>
(1) CLAIMS FILED AND UNPAID; INCLUDES CLAIMS REJECTED AGED LESS THAN 6 MONTHS.
(2) CLAIMS REJECTED (SUBJECT TO CURE) AGED 6 MONTHS OR MORE; ALSO INCLUDES
CLAIMS DEEMED INCURABLE PENDING REPURCHASE.
SALLIE MAE STUDENT LOAN TRUST 1996-1 Page 4
<PAGE> 19
V. INTEREST CALCULATION
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
A Borrower Interest Accrued During Collection Period $ 22,766,663.62
B Interest Subsidy Payments Accrued During Collection Period $ 6,916,774.27
C SAP Payments Accrued During Collection Period $ 778,059.64
D INV Earnings Accrued for Collection Period (RESERVE & COLLECTION ACTS) $ 54,740.27
E Investment Earnings (ADMINISTRATOR ACT) $ 444,243.81
--------------
F NET EXPECTED INTEREST COLLECTIONS $ 30,960,481.61
G STUDENT LOAN RATE
i Days in Collection Period (4/01/96-06/30/96) 91
ii Days in Year 366
iii Net Expected Interest Collections $ 30,960,481.61
iv Primary Servicing Fee $ 2,658,502.00
v Administration Fee $ 20,000.00
vi Total Pool Balance at Beginning of Collection Period $1,471,870,725.61
vii STUDENT LOAN RATE 7.72823%
ACCRUED
INT FACTOR ACCRUAL PERIOD
---------- --------------
H Class A-1 T-Bill Based Interest Rate 5.78044%
I CLASS A-1 INTEREST RATE 0.014372131 (4/25/96-7/25/96) 5.78044%
J Class A-2 T-Bill Based Interest Rate 5.97044%
K CLASS A-2 INTEREST RATE 0.014844536 (4/25/96-7/25/96) 5.97044%
L Certificate T-Bill Based Rate of Return 6.20044%
M CERTIFICATE RATE OF RETURN 0.015416393 (4/25/96-7/25/96) 6.20044%
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1996-1 Page 5
<PAGE> 20
VI. INPUTS FROM PREVIOUS QUARTERLY SERVICING REPORTS 03/31/96
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
A Total Student Loan Pool Outstanding
i Current Pool Balance $1,459,260,458.15
ii Interest To Be Capitalized $ 12,610,267.46
-------------------
iii TOTAL STUDENT LOAN POOL OUTSTANDING $1,471,870,725.61
===================
B Total Note and Certificate Factor 0.98124715041
C TOTAL NOTE AND CERTIFICATE BALANCE $1,471,870,725.61
</TABLE>
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------
D NOTE BALANCE 04/25/96 CLASS A-1 CLASS A-2 CERTIFICATES
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
i Current Factor-4/25/96 0.9711198415 1.0000000000 1.0000000000
ii Note Principal Shortfall $ 0.00 $ 0.00 $ 0.00
iii Expected Note Balance $945,870,725.61 $473,500,000.00 $52,500,000.00
--------------- --------------- --------------
iv NOTE BALANCE $945,870,725.61 $473,500,000.00 $52,500,000.00
E Interest Shortfall $ 0.00 $ 0.00 $ 0.00
F Interest Carryover $ 0.00 $ 0.00 $ 0.00
---------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C>
G Reserve Account Balance $3,679,676.81
H Unpaid Primary Servicing Fees from Prior Month(s) $ 0.00
I Unpaid Administration fees from Prior Quarter(s) $ 0.00
J Unpaid Carryover Servicing Fees from Prior Quarter(s) $ 0.00
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1996-1 Page 6
<PAGE> 21
VII. WATERFALL FOR DISTRIBUTIONS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
REMAINING
FUNDS BALANCE
--------------
<S> <C> <C>
A Total Available Funds (Section III E + Section V-D) $75,329,537.64 $75,329,537.64
B Primary Servicing Fees-Current Month $ 880,883.85 $74,448,653.79
C Administration Fee $ 20,000.00 $74,428,653.79
D Noteholder's Interest Distribution Amount
i Class A-1 $13,594,177.98 $60,834,475.81
ii Class A-2 $ 7,028,887.80 $53,805,588.01
--------------
iii TOTAL NOTEHOLDER'S INTEREST DISTRIBUTION $20,623,065.78
E CERTIFICATEHOLDER'S RETURN DISTRIBUTION AMOUNT $ 809,360.63 $52,996,227.38
F Noteholder's Principal Distribution Amount
i Class A-1 $49,920,810.19 $ 3,075,417.19
ii Class A-2 $ 0.00 $ 3,075,417.19
--------------
iii TOTAL NOTEHOLDER'S PRINCIPAL DISTRIBUTION $49,920,810.19
G CERTIFICATEHOLDER'S BALANCE DISTRIBUTION AMOUNT $ 0.00 $ 3,075,417.19
H Increase to the Specified Reserve Account Balance $ 0.00 $ 3,075,417.19
I Carryover Servicing Fees $ 1,300,175.33 $ 1,775,241.86
J Noteholder's Interest Carryover
i Class A-1 $ 0.00 $ 1,775,241.86
i Class A-2 $ 0.00 $ 1,775,241.86
--------------
iii TOTAL NOTEHOLDER'S INTEREST CARRYOVER $ 0.00
K CERTIFICATEHOLDER'S RETURN CARRYOVER $ 0.00 $ 1,775,241.86
L EXCESS TO RESERVE ACCOUNT $ 1,775,241.86 $0.00
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1996-1 Page 7
<PAGE> 22
VIII. DISTRIBUTIONS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------
A DISTRIBUTION AMOUNTS CLASS A-1 CLASS A-2 CERTIFICATES
-------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
i Quarterly Interest Due $13,594,177.98 $7,028,877.80 $809,360.63
ii Quarterly Interest Paid $13,594,177.98 $7,028,887.80 $809,360.63
-------------- ------------- -----------
iii INTEREST SHORTFALL $ 0.00 $ 0.00 $ 0.00
iv Interest Carryover Due $ 0.00 $ 0.00 $ 0.00
v Interest Carryover Paid $ 0.00 $ 0.00 $ 0.00
-------------- ------------- -----------
vi INTEREST CARRYOVER $ 0.00 $ 0.00 $ 0.00
vii Quarterly Principal Due (B) $49,920,810.19 $ 0.00 $ 0.00
viii Quarterly Principal Paid $49,920,810.19 $ 0.00 $ 0.00
-------------- ------------- -----------
ix QUARTERLY PRINCIPAL SHORTFALL $ 0.00 $ 0.00 $ 0.00
-------------------------------------------------------------------------------------------------------------
x Total Distribution Amount $63,514,988.17 $7,028,887.80 $809,360.63
-------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C>
B PRINCIPAL DISTRIBUTION RECONCILIATION
i Notes and Certificates Principal Balance 03/31/96 $1,471,870,725.61
ii Pool Balance 06/30/96 $1,421,949,915.42
-----------------
iii Pool Exceeding Notes and Certificate Balance (i-ii) $ 49,920,810.19
-----------------
iv Principal Distribution Amount $ 49,920,810.19
=================
C Total Principal Distribution $ 49,920,810.19
D Total Interest Distribution $ 21,432,426.41
-----------------
E TOTAL CASH DISTRIBUTIONS-NOTE AND CERTIFICATES $ 71,353,236.60
</TABLE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------
F NOTE & CERTIFICATE BALANCES 04/25/96 07/25/96
------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
i A-1 Note Balance (795452AD3) $945,870,725.61 $895,949,915.42
A-1 Note Pool Factor 0.9711198415 0.9198664429
ii A-2 Note Balance (795452AE1) $473,500,000.00 $473,500,000.00
A-2 Note Pool Factor 1.0000000000 1.0000000000
iii Certificate Balance (795452AF8) $ 52,500,000.00 $ 52,500,000.00
Certificate Pool Factor 1.0000000000 1.0000000000
------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C>
G RESERVE ACCOUNT RECONCILIATION
i Beginning of Period Balance $3,679,676.81
ii Deposits to correct Shortfall $ 0.00
iii Deposits from Excess Servicing $1,775,241.86
-------------
iv Total Reserve Account Balance Available $5,454,918.67
v Required Reserve Account Balance $3,554,874.79
vi Shortfall Carried to Next Period $ 0.00
vii Excess Reserve - Release to SLM Funding Corp $1,900,043.88
viii Ending Reserve Account Balance $3,554,874.79
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1996-1 Page 8
<PAGE> 23
IX. HISTORICAL POOL INFORMATION
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
----------------------------------------
4/1/96-6/30/96 2/5/96-3/31/96
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C>
BEGINNING STUDENT LOAN PORTFOLIO BALANCE $1,459,260,458.15 $1,489,927,280.77
- ---------------------------------------------------------------------------------------------------------
STUDENT LOAN PRINCIPAL ACTIVITY
i Regular Principal Collections $ 41,078,207.45 $ 27,226,246.55
ii Principal Collections from Guarantor $ 842,636.38 $ 27,657.36
iii Principal Reimbursements $ 12,387,879.90 $ 6,083,122.75
iv Other System Adjustments $ (548.12) $ 2,229.83
----------------------------------------
v Total Principal Collections $ 54,308,175.61 $ 33,339,256.49
Student Loan Non-Cash Principal Activity
i Other Adjustments $ 1,000,024.50 $ 746,961.96
ii Capitalized Interest $ (7,006,226.11) $ (3,419,395.83)
----------------------------------------
iii Total Non-Cash Principal Activity $ (6,006,201.61) $ (2,672,433.87)
- ---------------------------------------------------------------------------------------------------------
(-) TOTAL STUDENT LOAN PRINCIPAL ACTIVITY $ 48,301,974.00 $ 30,666,822.62
- ---------------------------------------------------------------------------------------------------------
STUDENT LOAN INTEREST ACTIVITY
i Regular Interest Collections $ 17,084,616.87 $ 10,764,171.47
ii Interet Claims Received from Guarantors $ 21,865.02 $ 326.78
iii Interest Reimbursements $ 142,527.81 $ 50,757.10
iv Other System Adjustments $ 244.79 $ 10,446.21
v Special Allowance Payments $ 343,884.36 $ 0.00
vi Interest Subsidy Payments $ 4,651,078.41 $ 0.00
----------------------------------------
vii Total Interest Collections $ 22,244,217.26 $ 10,825,701.56
Student Loan Non-Cash Interest Activity
i Interest Accrual Adjustment $ (994,738.78) $ (733,594.53)
ii Capitalized Interest $ 7,006,226.11 $ 3,419,395.83
----------------------------------------
iii Total Non-Cash Interest Adjustments $ 6,011,487.33 $ 2,685,801.30
----------------------------------------
TOTAL STUDENT LOAN INTEREST ACTIVITY $ 28,255,704.59 $ 13,511,502.86
(=) ENDING STUDENT LOAN PORTFOLIO BALANCE $1,410,958,484.15 $1,459,260,458.15
- ---------------------------------------------------------------------------------------------------------
(+) INTEREST TO BE CAPITALIZED $ 10,991,431.27 $ 12,610,267.46
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
(=) TOTAL POOL $1,421,949,915.42 $1,471,870,725.61
- ---------------------------------------------------------------------------------------------------------
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1996-1 Page 9
<PAGE> 24
SALLIE MAE STUDENT LOAN TRUST 1996-1
PAYMENT HISTORY AND CPRS
<TABLE>
<CAPTION>
DISTRIBUTION ACTUAL SINCE ISSUED
DATE POOL BALANCES CPR*
<S> <C> <C>
Feb-96 $ 1,502,106,411
Apr-96 $ 1,471,870,726 5.1%
Jul-96 $ 1,421,949,915 5.6%
</TABLE>
*"Since Issued CPR" is based on the current period's ending pool balance
calculated against the original pool balance and assuming cutoff date pool
data.
<PAGE> 25
SLM STUDENT LOAN TRUST
- --------------------------------------------------------------------------------
1996-2
QUARTERLY SERVICING REPORT
REPORTING PERIOD: 4/8/96-6/30/96
DISTRIBUTION DATE: 7/25/96
Questions?
1-800-321-7179
<PAGE> 26
SALLIE MAE STUDENT LOAN TRUST 1996-2
OFFICER'S CERTIFICATE
INDENTURE TRUSTEE ELIGIBLE LENDER TRUSTEE
- ----------------- -----------------------
Bankers Trust Company Chase Manhattan Bank (USA)
Four Albany Street 1 Chase Manhattan Plaza
New York, NY 10006 Wilmington, Delaware 19801-1398
Attn: Corporate Trust & Agency Group Attn: Manager, Trust Division
(212) 250-6547 (302) 575-5022
ADMINISTRATOR SERVICER
- ------------- --------
Sallie Mae Sallie Mae Servicing Corporation
11600 Sallie Mae Drive 11600 Sallie Mae Drive
Reston, Virginia 20190-4798 Reston, Virginia 20193
Attn: Director, Corporate Finance ATTN: Director ABS Administration
Operations
(703) 810-7711
================================================================================
Pursuant to Section 3.1 of the Administration Agreement (the "Agreement"), we,
the undersigned, hereby certify that (i) a review of the activities and
performance of the Servicer and Administrator from April 1, 1996 through June
30, 1996 has been made, and (ii) to the best of our knowledge, the Servicer and
Administrator have fulfilled their obligations under the Agreement throughout
such period.
July 19, 1996
SALLIE MAE, AS ADMINISTRATOR
/s/ Robert R. Levine
- --------------------------------
Robert R. Levine, Vice President
and Treasurer
/s/ Mark G. Overend
- --------------------------------
Mark G. Overend, Vice President
and Controller
<PAGE> 27
SLM STUDENT LOAN TRUST 1996-2
QUARTERLY SERVICING REPORT
REPORT DATE: 06/30/96 REPORTING PERIOD: 4/08/96-6/30/96
I. DEAL PARAMETERS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
A STUDENT LOAN PORTFOLIO CHARACTERISTICS 04/08/96 ACTIVITY 06/30/96
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
i Portfolio Balance $1,499,948,797.64 ($31,282,512.88) $1,468,666,284.76
ii Interest to be Capitalized $ 17,659,125.81 $ 14,944,789.14
----------------- -----------------
iii TOTAL POOL $1,517,607,923.45 $1,483,611,073.90
================= =================
B i Weighted Average Coupon (WAC) 8.35% 8.3560%
ii Weighted Average Remaining Term 107.40 105.70
iii Number of Loans 624,025 618,098
iv Number of Borrowers 264,002 261,926
---------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
C NOTES AND CERTIFICATES SPREAD BALANCE 4/26/96 % OF POOL BALANCE 7/25/96 % OF POOL
---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
i A-1 Notes 78442GAA4 0.51% $ 975,000,000.00 64.355% $ 943,581,073.90 63.600%
ii A-2 Notes 78442GAB2 0.71% $ 487,000,000.00 32.145% $ 487,000,000.00 32.825%
iii Certificates 78442GAC0 0.96% $ 53,030,000.00 3.500% $ 53,030,000.00 3.574%
---------------------------------------------------------------------------------------------------------------------
iv TOTAL NOTES AND CERTIFICATES $1,515,030,000.00 100.000% $1,483,611,073.90 100.000%
=====================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
D RESERVE ACCOUNT 04/26/96 07/25/96
--------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
i Required Reserve Acct Deposit (%) 0.25% 0.25%
ii Reserve Acct Initial Deposit ($) $3,787,575.00
iii Specified Reserve Acct Balance ($) $3,787,575.00 $3,709,027.68
iv Reserve Account Floor Balance ($) $1,515,030.00 $1,515,030.00
v Current Reserve Acct Balance ($) $3,787,575.00 $3,709,027.68
--------------------------------------------------------------------------------------------------------
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1996-2 Page 1
<PAGE> 28
II. TRANSACTIONS FROM: 04/08/96 THROUGH: 06/30/96
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
A STUDENT LOAN PRINCIPAL ACTIVITY
i Regular Principal Collections $32,387,112.35
ii Principal Collections from Guarantor $232,013.54
iii Principal Reimbursements $5,880,791.49
iv Other System Adjustments ($1,709.32)
-----------
v TOTAL PRINCIPAL COLLECTIONS $38,498,208.06
B STUDENT LOAN NON-CASH PRINCIPAL ACTIVITY
i Other Adjustments $700,262.22
ii Capitalized Interest ($7,915,957.40)
---------------
iii TOTAL NON-CASH PRINCIPAL ACTIVITY ($7,215,695.18)
---------------------------------------------------------------------
C TOTAL STUDENT LOAN PRINCIPAL ACTIVITY $31,282,512.88
---------------------------------------------------------------------
D STUDENT LOAN INTEREST ACTIVITY
i Regular Interest Collections $13,326,889.75
ii Interest Claims Received from Guarantors $4,693.63
iii Interest Reimbursements $90,073.72
iv Other System Adjustments $309.87
v Special Allowance Payments $0.00
vi Subsidy Payments $0.00
-----
vii TOTAL INTEREST COLLECTIONS $13,421,966.97
E STUDENT LOAN NON-CASH INTEREST ACTIVITY
i Interest Accrual Adjustment ($689,754.99)
ii Capitalized Interest $7,915,957.40
---------------
iii TOTAL NON-CASH INTEREST ADJUSTMENTS $7,226,202.41
----------------------------------------------------------------------
F TOTAL STUDENT LOAN INTEREST ACTIVITY $20,648,169.38
----------------------------------------------------------------------
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1996-2 Page 2
<PAGE> 29
III. COLLECTION ACCOUNT ACTIVITY 04/08/96 THROUGH 06/30/96
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
A PRINCIPAL COLLECTIONS
i Principal Payments Received-Cash $32,619,125.89
ii Cash Forwarded by Administrator on behalf of Seller $ 1,417,083.80
iii Cash Forwarded by Administrator on behalf of Servicer $ 2,532.31
iv Cash Forwarded by Administrator for Consolidation Activity $ 4,459,466.06
---------------
v TOTAL PRINCIPAL COLLECTIONS $38,498,208.06
B INTEREST COLLECTIONS
i Interest Payments Received-Cash $13,331,583.38
ii Cash Forwarded by Administrator on behalf of Seller $ 31,879.81
iii Cash Forwarded by Administrator on behalf of Servicer $ (0.73)
iv Cash Forwarded by Administrator for Consolidation Activity $ 58,504.51
---------------
v TOTAL INTEREST COLLECTIONS $13,421,966.97
C OTHER REIMBURSEMENTS $ 30,056.57
D ADMINISTRATOR ACCOUNT INVESTMENT INCOME $ 196,068.48
E FUNDS BORROWED FROM NEXT COLLECTION PERIOD (7-1-96 TO 9-30-96) $ 3,410,553.29
F TOTAL FUNDS RECEIVED $55,556,853.37
(LESS: SERVICING FEES PREVIOUSLY REMITTED) $(1,391,406.67)
---------------------------------------------------------------------------------------------------
TOTAL FUNDS TRANSFERRED TO COLLECTION ACCOUNT $54,165,446.70
---------------------------------------------------------------------------------------------------
G SERVICING FEE CALCULATION-CURRENT MONTH
i Unit Charge Calculation $ 1,188,904.64
ii Percentage of Principal Calculation $ 1,689,395.50
iii Lesser of Unit or Principal Calculation $ 1,188,904.64
H SERVICING FEES DUE FOR CURRENT PERIOD $ 1,188,904.64
I CARRYOVER SERVICING FEES DUE $ 1,092,103.84
APR 1996 Servicing Carryover $85,055.55
MAY 1996 Servicing Carryover $509,089.01
JUN 1996 Servicing Carryover $500,490.86
---------------
$1,094,635.42
LESS: Servicing ADJ [A iii + B iii] $ (2,531.58)
---------------
TOTAL: CARRYOVER SERVICING FEE DUE $1,092,103.84
===============
J ADMINISTRATION FEES DUE $20,000.00
---------------------------------------------------------------------------------------------------
K TOTAL FEES DUE FOR PERIOD $2,301,008.48
---------------------------------------------------------------------------------------------------
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1996-2 Page 3
<PAGE> 30
IV. PORTFOLIO CHARACTERISTICS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
--------------------------------------------------------------------------
WEIGHTED AVG COUPON # OF LOANS %
- ------------------------------------------------------------------------------------------------------
STATUS 04/08/96 06/30/96 04/08/96 06/30/96 04/08/96 06/30/96
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
INTERIM:
IN SCHOOL
Current 8.3645% 8.3698% 116,920 86,074 18.7364% 13.9256%
GRACE
Current 8.3207% 8.3435% 58,895 45,412 9.4379% 7.3471%
- ------------------------------------------------------------------------------------------------------
TOTAL INTERIM 8.3505% 8.3605% 175,815 131,486 28.1744% 21.2727%
- ------------------------------------------------------------------------------------------------------
REPAYMENT
ACTIVE
Current 8.3183% 8.3328% 330,188 368,184 52.9126% 59.5673%
31-60 Days Delinquent 8.3699% 8.4072% 25,056 27,727 4.0152% 4.4859%
61-90 Days Delinquent 8.3920% 8.3780% 12,480 10,771 1.9999% 1.7426%
91-120 Days Delinquent 0.0000% 8.3782% 0.00 6,265 0.0000% 1.0136%
Greater than 120 Days
Delinquent 0.0000% 8.3931% 0.00 7,141 0.0000% 1.1553%
DEFERMENT
Current 8.4726% 8.4370% 57,274 48,819 9.1782% 7.8983%
FORBEARANCE
Current 8.4075% 8.3641% 23,212 17,456 3.7197% 2.8241%
- ------------------------------------------------------------------------------------------------------
TOTAL REPAYMENT 8.354% 8.354% 448,210 486,363 71.8256% 78.6870%
- ------------------------------------------------------------------------------------------------------
CLAIMS IN PROCESS (1) 0.0000% 8.4183% 0.00 249 0.0000% 0.0403%
AGED CLAIMS REJECTED (2) 0.0000% 0.0000% 0.00 0.00 0% 0%
- ------------------------------------------------------------------------------------------------------
GRAND TOTAL 8.354% 8.356% 624,025 618,098 100.00% 100.00%
- ------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
----------------------------------------------------------------
PRINCIPAL AMOUNT %
- ----------------------------------------------------------------------------------------------
STATUS 04/08/96 06/30/96 04/08/96 06/30/96
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
INTERIM:
IN SCHOOL
Current $ 335,769,077.46 $ 242,075,889.03 22.3854% 16.4827%
GRACE
Current $ 157,657,798.69 $ 133,262,167.87 10.5109% 9.0737%
- ----------------------------------------------------------------------------------------------
TOTAL INTERIM $ 493,426,876.15 $ 375,338,056.90 32.8962% 25.5564%
- ----------------------------------------------------------------------------------------------
REPAYMENT
ACTIVE
Current $ 693,078,786.18 $ 788,778,958.06 46.2068% 53.7072%
31-60 Days Delinquent $ 53,460,168.72 $ 61,095,812.74 3.5641% 4.1600%
61-90 Days Delinquent $ 28,107,052.60 $ 23,797,260.54 1.8739% 1.6203%
91-120 Days Delinquent $ 0.00 $ 14,070,084.55 0.0000% 0.9580%
Greater than 120 Days
Delinquent $ 0.00 $ 15,979,638.31 0.0000% 1.0880%
DEFERMENT
Current $ 164,121,368.63 $ 138,988,786.45 10.9418% 9.4636%
FORBEARANCE
Current $ 67,754,545.35 $ 50,034,804.14 4.5171% 3.4068%
- ----------------------------------------------------------------------------------------------
TOTAL REPAYMENT $1,006,521,921.48 $1,092,745,344.79 67.1038% 74.4039%
- ----------------------------------------------------------------------------------------------
CLAIMS IN PROCESS (1) $ 0.00 $ 582,883.06 0.0000% 0.0397%
AGED CLAIMS REJECTED (2) $ 0.00 $ 0.00 0% 0%
- ----------------------------------------------------------------------------------------------
GRAND TOTAL $1,499,948,797.63 $1,468,666,284.75 100.00% 100.00%
- ----------------------------------------------------------------------------------------------
</TABLE>
(1) CLAIMS FILED AND UNPAID; INCLUDES CLAIMS REJECTED AGED LESS THAN 6 MONTHS.
(2) CLAIMS REJECTED (SUBJECT TO CURE) AGED 6 MONTHS OR MORE; ALSO INCLUDES
CLAIMS DEEMED INCURABLE PENDING REPURCHASE.
SALLIE MAE STUDENT LOAN TRUST 1996-2 Page 4
<PAGE> 31
V. INTEREST CALCULATION
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
A Borrower Interest Accrued During Collection Period $ 19,408,848.37
B Interest Subsidy Payments Accrued During Collection Period $ 9,017,625.58
C SAP Payments Accrued During Collection Period $ 531,326.51
D INV Earnings Accrued for Collection Period (RESERVE & COLLECTION ACTS) $ 35,670.37
E Investment Earnings (ADMINISTRATOR ACT) $ 196,068.48
F NET EXPECTED INTEREST COLLECTIONS $ 29,189,539.31
G STUDENT LOAN RATE
i Days in Collection Period (4/08/96-06/30/96) 84
ii Days in Year 366
iii Net Expected Interest Collections $ 29,189,539.31
iv Primary Servicing Fee $ 2,580,311.31
v Administration Fee $ 20,000.00
vi Total Pool Balance at Beginning of Collection Period $1,517,607,923.45
vii STUDENT LOAN RATE 7.63393%
</TABLE>
<TABLE>
<CAPTION>
ACCRUED
INT FACTOR ACCRUAL PERIOD
---------- --------------
<S> <C> <C> <C> <C>
H Class A-1 T-Bill Based Interest Rate 5.73178%
I CLASS A-1 INTEREST RATE 0.014094536 (4/26/96-7/25/96) 5.73178%
J Class A-2 T-Bill Based Interest Rate 5.93178%
K CLASS A-2 INTEREST RATE 0.014586339 (4/26/96-7/25/96) 5.93178%
L Certificate T-Bill Based Rate of Return 6.18178%
M CERTIFICATE RATE OF RETURN 0.015201093 (4/26/96-7/25/96) 6.18178%
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1996-2 Page 5
<PAGE> 32
VI. INPUTS FROM PREVIOUS QUARTERLY SERVICING REPORTS 04/08/96
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
A Total Student Loan Pool Outstanding
i Current Pool Balance $1,499,948,797.64
ii Interest To Be Capitalized $ 17,659,125.81
-------------------
iii TOTAL STUDENT LOAN POOL OUTSTANDING $1,517,607,923.45
===================
B Total Note and Certificate Factor 1.00000000000
C TOTAL NOTE AND CERTIFICATE BALANCE $1,515,030,000.00
</TABLE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------
D NOTE BALANCE 04/26/96 CLASS A-1 CLASS A-2 CERTIFICATES
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
i Current Factor-4/26/96 1.0000000000 1.0000000000 1.0000000000
ii Note Principal Shortfall $ 0.00 $ 0.00 $ 0.00
iii Expected Note Balance $975,000,000.00 $487,000,000.00 $53,030,000.00
iv NOTE BALANCE $975,000,000.00 $487,000,000.00 $53,030,000.00
E Interest Shortfall $ 0.00 $ 0.00 $ 0.00
F Interest Carryover $ 0.00 $ 0.00 $ 0.00
------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C>
G Reserve Account Balance $3,787,575.00
H Unpaid Primary Servicing Fees from Prior Month(s) $ 0.00
I Unpaid Administration fees from Prior Quarter(s) $ 0.00
J Unpaid Carryover Servicing Fees from Prior Quarter(s) $ 0.00
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1996-2 Page 6
<PAGE> 33
VII. WATERFALL FOR DISTRIBUTIONS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
REMAINING
FUNDS BALANCE
-------------
<S> <C> <C> <C>
A Total Available Funds ( Sections III -F + V-D+VIII-G) $54,279,664.39 $54,279,664.39
B Primary Servicing Fees-Current Month $ 1,188,904.64 $53,090,759.75
C Administration Fee $ 20,000.00 $53,070,759.75
D Noteholder's Interest Distribution Amount
i Class A-1 $13,742,172.60 $39,328,587.15
ii Class A-2 $ 7,103,547.09 $32,225,040.06
--------------
iii TOTAL NOTEHOLDER'S INTEREST DISTRIBUTION $20,845,719.69
E CERTIFICATEHOLDER'S RETURN DISTRIBUTION AMOUNT $ 806,113.96 $31,418,926.10
F Noteholder's Principal Distribution Amount
i Class A-1 $31,418,926.10 $ (0.00)
ii Class A-2 $ 0.00 $ (0.00)
--------------
iii TOTAL NOTEHOLDER'S PRINCIPAL DISTRIBUTION $31,418,926.10
G CERTIFICATEHOLDER'S BALANCE DISTRIBUTION AMOUNT $ 0.00 $ (0.00)
H Increase to the Specified Reserve Account Balance $ 0.00 $ 0.00
I Carryover Servicing Fees (INSUFFICIENT FUNDS AVAILABLE) $ 0.00 $ 0.00
J Noteholder's Interest Carryover
i Class A-1 $ 0.00 $ 0.00
i Class A-2 $ 0.00 $ 0.00
--------------
iii TOTAL NOTEHOLDER'S INTEREST CARRYOVER $ 0.00
K CERTIFICATEHOLDER'S RETURN CARRYOVER $ 0.00 $ 0.00
L EXCESS TO RESERVE ACCOUNT $ 0.00 $ 0.00
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1996-2 Page 7
<PAGE> 34
VIII. DISTRIBUTIONS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
A DISTRIBUTION AMOUNTS CLASS A-1 CLASS A-2 CERTIFICATES
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
i Quarterly Interest Due $13,742,172.60 $7,103,547.09 $806,113.96
ii Quarterly Interest Paid $13,742,172.60 $7,103,547.09 $806,113.96
-------------- ------------- -----------
iii INTEREST SHORTFALL $ 0.00 $ 0.00 $ 0.00
iv Interest Carryover Due $ 0.00 $ 0.00 $ 0.00
v Interest Carryover Paid $ 0.00 $ 0.00 $ 0.00
-------------- ------------- -----------
vi INTEREST CARRYOVER $ 0.00 $ 0.00 $ 0.00
vii Quarterly Principal Due (B) $31,418,926.10 $ 0.00 $ 0.00
viii Quarterly Principal Paid $31,418,926.10 $ 0.00 $ 0.00
-------------- ------------- -----------
ix QUARTERLY PRINCIPAL SHORTFALL $ 0.00 $ 0.00 $ 0.00
-----------------------------------------------------------------------------------------------------------------------
x Total Distribution Amount $45,161,098.70 $7,103,547.09 $806,113.96
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C>
B PRINCIPAL DISTRIBUTION RECONCILIATION
i Notes and Certificates Principal Balance 06/30/96 $1,515,030,000.00
ii Pool Balance 06/30/96 $1,483,611,073.90
-----------------
iii Pool Exceeding Notes and Certificate Balance (i-ii) $ 31,418,926.10
-----------------
iv Principal Distribution Amount $ 31,418,926.10
=================
C Total Principal Distribution $ 31,418,926.10
D Total Interest Distribution $ 21,651,833.65
-----------------
E TOTAL CASH DISTRIBUTIONS-NOTE AND CERTIFICATES $ 53,070,759.75
</TABLE>
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------
F NOTE & CERTIFICATE BALANCES 04/26/96 07/25/96
------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
i A-1 Note Balance (78442GAA4) $975,000,000.00 $943,581,073.90
A-1 Note Pool Factor 1.0000000000 0.9677754604
ii A-2 Note Balance (78442GAB2) $487,000,000.00 $487,000,000.00
A-2 Note Pool Factor 1.0000000000 1.0000000000
iii Certificate Balance (78442GAC0) $ 53,030,000.00 $ 53,030,000.00
Certificate Pool Factor 1.0000000000 1.0000000000
------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C>
G RESERVE ACCOUNT RECONCILIATION
i Beginning of Period Balance $3,787,575.00
ii Deposits to correct Shortfall $ 0.00
iii Deposits from Excess Servicing $ 0.00
-------------
iv Total Reserve Account Balance Available $3,787,575.00
v Required Reserve Account Balance $3,709,027.68
vi Shortfall Carried to Next Period $ 0.00
vii EXCESS RESERVE -RELEASE TO COLLECTION ACT AVAIL FUNDS $ 78,547.32
viii Ending Reserve Account Balance $3,709,027.68
</TABLE>
SALLIE MAE STUDENT LOAN TRUST 1996-2 Page 8
<PAGE> 35
SLM STUDENT LOAN TRUST 1996-2
PAYMENT HISTORY AND CPRS
<TABLE>
<CAPTION>
DISTRIBUTION ACTUAL SINCE ISSUED
DATE POOL BALANCES CPR*
<S> <C> <C>
Apr-96 $ 1,517,607,923
Jul-96 $ 1,483,611,074 4.1%
</TABLE>
*"Since Issued CPR" is based on the current period's ending pool balance
calculated against the original pool balance and assuming cutoff date pool
data.
<PAGE> 1
EXHIBIT 99.1
PURCHASE AGREEMENT MASTER SECURITIZATION TERMS NUMBER 1000
These Purchase Agreement Master Securitization Terms Number 1000
("Master Terms") dated as of July 9, 1996 among SLM Funding Corporation
("Funding"), The Chase Manhattan Bank (USA), not in its individual capacity but
solely as Interim Eligible Lender Trustee (the "Interim Eligible Lender
Trustee") for the benefit of Funding under the Interim Trust Agreement dated as
of July 1, 1996 between Funding and the Interim Eligible Lender Trustee, and
Student Loan Marketing Association ("Sallie Mae"), shall be effective upon
execution by the parties hereto. References to Funding herein mean the Interim
Eligible Lender Trustee for all purposes involving the holding or transferring
of legal title to the Eligible Loans.
WHEREAS, Sallie Mae is the owner of certain student loans guaranteed
under the Higher Education Act;
WHEREAS, Sallie Mae may desire to sell its interest in such loans from
time to time and Funding may desire to purchase such loans from Sallie Mae;
WHEREAS, the Interim Eligible Lender Trustee is willing to hold legal
title to, and serve as eligible lender trustee with respect to, such loans on
behalf of Funding;
NOW, THEREFORE, in connection with the mutual promises contained
herein, the parties hereto agree as follows:
SECTION 1. TERMS
These Master Terms establish the terms under which Sallie Mae may sell
and Funding (and with respect to legal title, the Interim Eligible Lender
Trustee on behalf of Funding) may purchase the Loans (and all obligations of
the Borrowers thereunder) specified on each Purchase Agreement as the parties
may execute from time to time pursuant to these Master Terms. Each such
Purchase Agreement shall be substantially in the form of Attachment A hereto,
incorporating by reference the terms of these Master Terms, and shall be a
separate agreement among Sallie Mae, Funding, and the Interim Eligible Lender
Trustee on behalf of Funding with respect to the Loans covered by the terms of
such Purchase Agreement. If the terms of a Purchase Agreement conflict with
the terms of these Master Terms, the terms of such Purchase Agreement shall
supersede and govern.
SECTION 2. DEFINITIONS
Capitalized terms used but not otherwise defined herein shall have the
definitions set forth in Appendix A hereto.
<PAGE> 2
For purposes hereof:
(A) "Account" means all of the Eligible Loans hereunder of one (1)
Borrower that are of the same Loan type made under the identical
subsection of the Higher Education Act and in the same status.
(B) "Bill of Sale" means that document executed by an authorized
officer of Sallie Mae which shall set forth the Loans offered by
Sallie Mae and accepted for purchase by the Interim Eligible Lender
Trustee for the benefit of Funding and which shall sell, assign and
convey to the Interim Eligible Lender Trustee for the benefit of
Funding and its assignees all rights, title and interest of Sallie Mae
in the Loans listed on the Bill of Sale and will certify that the
representations and warranties made by Sallie Mae pursuant to Section
5(A) of these Master Terms are true and correct.
(C) "Borrower" means the obligor on a Loan.
(D) "Consolidation Loan" means a Loan made pursuant to and in full
compliance with Section 428C of the Higher Education Act.
(E) "Cutoff Date" means with respect to the first sale hereunder,
June 17, 1996, and, with respect to subsequent sales hereunder, a date
agreed to by Sallie Mae and Funding to use in determining the
Principal Balance and accrued interest to be capitalized for purposes
of completing the Loan Transmittal Summary Form.
(F) "Deferred Payment" means an amount equal to the sum of (i) 100%
of the first amounts distributed to Funding pursuant to Section
2.8C(G) of the Administration Agreement (exclusive of the amount of
any such distribution attributable to the reduction from time to time
of the Specified Reserve Account Balance) up to the amount of the
Interest Subsidy Payments and Special Allowance Payments on the Loans
which accrued from and including April 1, 1996 to but not including
the date of the Bill of Sale (as agreed to by Sallie Mae and Funding
upon the availability of the information needed to determine such
amount), which amount shall constitute payment to Sallie Mae in
consideration for the sale and assignment by Sallie Mae of the right
to receive such payments attributable to such period and (ii) after
payment in full of the amount required pursuant to clause (i) above,
66 2/3% of any and all additional amounts distributed to Funding
pursuant to Section 2.8C(G) of the Administration Agreement (exclusive
of the amount of any such distribution attributable to the reduction
from time to time of the Specified Reserve Account Balance).
2
<PAGE> 3
(G) "Delinquent" means the period any payment of principal or interest
due on the Loan is overdue.
(H) "Eligible Loan" means a Loan offered for sale by Sallie Mae under
the Purchase Agreement which as of the Cutoff Date is current or no
more Delinquent than permitted under the Purchase Agreement in payment
of principal or interest and which meets the following criteria as of
the effective date of the Bill of Sale:
(i) is a Stafford Loan, a Consolidation Loan, a PLUS Loan or
SLS Loan;
(ii) is owned by Sallie Mae and is fully disbursed;
(iii) is guaranteed as to principal and interest by the
applicable Guarantor to the maximum extent permitted by the
Higher Education Act for such Loan;
(iv) bears interest at a stated rate of not less than the
maximum rate permitted under the Higher Education Act for such
Loan;
(v) is eligible for the payment of the quarterly special
allowance at the full and undiminished rate established under
the formula set forth in the Higher Education Act for such
Loan;
(vi) if not yet in repayment status, is eligible for the
payment of interest benefits by the Secretary or, if not so
eligible, is a Loan for which interest either is billed
quarterly to Borrower or deferred until commencement of the
repayment period, in which case such accrued interest is
subject to capitalization to the full extent permitted by the
applicable Guarantor;
(vii) is supported by the following documentation:
(a) for each Loan:
1. loan application, and any supplement thereto,
2. original promissory note and any addendum
thereto or a certified copy thereof if more
than one loan is represented by a single
promissory note and all loans so represented
are not being sold at the same time,
3. evidence of guarantee,
3
<PAGE> 4
4. any other document and/or record which
Funding may be required to retain pursuant
to Regulations; and
(b) for each Loan only if applicable:
1. payment history (or similar document)
including (i) an indication of the Principal
Balance and the date through which interest
has been paid, each as of the Cutoff Date and
(ii) an accounting of the allocation of all
payments by Borrower or on Borrower's behalf
to principal and interest on the Loan,
2. documentation which supports periods of
current or past deferment or past
forbearance,
3. a collection history, if the Loan was ever in
a delinquent status, including detailed
summaries of contacts and including the
addresses or telephone numbers used in
contacting or attempting to contact Borrower
and any endorser and, if required by the
Guarantor, copies of all letters and other
correspondence relating to due diligence
processing,
4. evidence of all requests for skip-tracing
assistance and current address of Borrower,
if located,
5. evidence of requests for pre- claims
assistance, and evidence that the Borrower's
school(s) have been notified,
6. a record of any event resulting in a change
to or confirmation of any data in the Loan
file.
(I) "Initial Payment" means the dollar amount specified in the
applicable Purchase Agreement.
(J) "Loan" means the Note or Notes offered for sale pursuant to the
Purchase Agreement and related documentation together with any
guaranties and other rights relating thereto.
(K) "Loan Transmittal Summary Forms" means the forms provided to
Sallie Mae by Funding and completed by Sallie Mae which list, by
Borrower, the Loans subject to the Bill
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of Sale and the outstanding Principal Balance and accrued interest
thereof as of the Cutoff Date.
(L) "Note" means the promissory note of the Borrower and any
amendment thereto evidencing the Borrower's obligation with regard to
a student loan guaranteed under the Higher Education Act.
(M) "PLUS Loan" means a Loan which was made pursuant to the PLUS
Program established under Section 428B of the Higher Education Act (or
predecessor provisions).
(N) "Principal Balance" means the outstanding principal amount of the
Loan, plus interest expected to be capitalized (if any), less amounts
which may not be insured (such as late charges).
(O) "Purchase Agreement" means a Purchase Agreement (including any
attachments thereto), substantially in the form of Attachment A
hereto, of which these Master Terms form a part by reference.
(P) "Purchase Price" means the sum of the Initial Payment and
Deferred Payment.
(Q) "Sale Agreement" means the Sale Agreement Master Securitization
Terms Number 1000 among SLM Funding Corporation as seller, The Chase
Manhattan Bank (USA) as Interim Eligible Lender Trustee and Eligible
Lender Trustee.
(R) "Secretary" means the United States Secretary of Education or any
successor.
(S) "SLS Loan" means a Loan which was made pursuant to the
Supplemental Loans for Students Program established under Section 428A
of the Higher Education Act (or predecessor provisions), including
Loans referred to as ALAS Loans or Student PLUS Loans.
(T) "Stafford Loans" mean Subsidized Stafford Loans and Unsubsidized
Stafford Loans.
(U) "Subsidized Stafford Loan" means a Loan for which the interest
rate is governed by Section 427A(a) or 427A(d) of the Higher Education
Act.
(V) "Unsubsidized Stafford Loan" means a Loan made pursuant to
Section 428H of the Higher Education Act.
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SECTION 3. SALE/PURCHASE
(A) Consummation of Sale and Purchase
The sale and purchase of Eligible Loans pursuant to a Purchase
Agreement shall be consummated upon Funding's receipt from Sallie Mae
of the Bill of Sale and the payment by Funding to Sallie Mae of the
Initial Payment, and when consummated such sale and purchase shall be
effective as of the date of the Bill of Sale. Sallie Mae and Funding
shall use their best efforts to perform promptly their respective
obligations pursuant to such Purchase Agreement.
(B) Settlement of the Initial Payment
Funding on the date of the Bill of Sale shall pay Sallie Mae
the Initial Payment by wire transfer of immediately available funds to
the account specified by Sallie Mae.
(C) Interest Subsidy and Special Allowance Payments
On the date of the Bill of Sale, Sallie Mae shall be entitled
to all Interest Subsidy Payments and Special Allowance Payments on the
Loans subject to each Bill of Sale accruing up to but not including
April 1, 1996. The Interim Eligible Lender Trustee on behalf of
Funding shall be entitled to all Special Allowance Payments and
Interest Subsidy Payments accruing from April 1, 1996.
(D) Special Programs
In consideration of the sale of the Eligible Loans under these
Master Terms and each Purchase Agreement, Funding agrees to cause the
Servicer to offer borrowers of Trust Student Loans all special
programs, whether or not in existence as of the date of any Purchase
Agreement, generally offered to the obligors of comparable loans owned
by Sallie Mae subject to terms and conditions of Section 3.12 of the
Servicing Agreement.
(E) Deferred Payment
(i) Funding shall pay the Deferred Payment to Sallie Mae when
and as the same is received by Funding.
(ii) In the event of an early termination, Funding shall pay
the Deferred Payment to Sallie Mae in accordance with the following:
(I) If the Trust Student Loans are purchased by
Funding pursuant to Section 6.1 of the Administration
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Agreement, Funding shall pay to Sallie Mae as part of the
Deferred Payment an amount equal to the sum of (X) 100% of the
present value of the excess of the projected future yield on
the Trust Student Loans after the date of such purchase over
the projected cost to Funding of carrying the Trust Student
Loans as reasonably estimated by Funding assuming (1) that
interest rates applicable to the Trust Student Loans in effect
on the date of such purchase remain in effect, (2) that the
cost to Funding of carrying the Trust Student Loans is equal
to the blended rate on the Notes and Certificates on the date
of such purchase, (3) that the servicing costs and loss
experience applicable to the Trust Student Loans during the
one year period preceding such purchase continue during the
remaining life of the Trust Student Loans and (4) a discount
rate equal to the blended rate on the Notes and Certificates
on the date of such purchase, up to an amount equal to the
difference, if any, between the amount required to be paid to
Sallie Mae pursuant to clause (i) of the definition of
Deferred Payment and the amount actually paid to Sallie Mae in
respect thereof prior to the date of such purchase, and (Y)
after payment in full to Sallie Mae of the amount, if any,
required pursuant to clause (X) above, 66 2/3% of the
remaining present value amount, if any, determined in
accordance with clause (X) above.
(II) If the Trust Student Loans are sold pursuant to
the auction provision in Section 4.4 of the Indenture, Funding
shall pay to Sallie Mae as part of the Deferred Payment, an
amount equal to the sum of (X) 100% of the amount, if any, by
which the sale price exceeds the Minimum Purchase Amount and
any costs of terminating the Trust, up to an amount equal to
the difference, if any, between the amount required to be paid
to Sallie Mae pursuant to clause (i) of the definition of
Deferred Payment and the amount actually paid to Sallie Mae in
respect thereof prior to the date of such sale pursuant to
auction, and (Y) after payment in full to Sallie Mae of the
amount, if any, required pursuant to clause (X) above, 66 2/3%
of the remaining amount, if any, by which the sale price
exceeds the Minimum Purchase Amount and any costs of
terminating the Trust.
(III) If the provisions of Section 2.8C(F) of the
Administration Agreement are operative, upon payment in full
of the Notes and Certificates to the extent of amounts then
distributable by the Trust to Funding, Funding shall pay to
Sallie Mae as part of the
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Deferred Payment, an amount equal to the sum of (X) 100% of
the aggregate amount that would have been distributed to
Funding pursuant to Section 2.8C(G) of the Administration
Agreement (exclusive of the amount of any such distribution
attributable to the reduction from time to time of the
Specified Reserve Account Balance) but for the operation of
Section 2.8C(F) of the Administration Agreement, up to an
amount equal to the difference, if any, between the amount
required to be paid to Sallie Mae pursuant to clause (i) of
the definition of Deferred Payment and the amount actually
paid to Sallie Mae in respect thereof prior to the date of
such distribution by the Trust to Funding, and (Y) after
payment in full to Sallie Mae of the amount, if any, required
pursuant to clause (X) above, 66 2/3% of any remaining amount
distributable by the Trust to Funding upon such payment in
full of the Notes and Certificates.
SECTION 4. CONDITIONS PRECEDENT TO PURCHASE
(A) Activities Prior to the Purchase Date
Sallie Mae shall provide any assistance requested by Funding
in determining that all required documentation on the Loans is present
and correct.
(B) Continued Servicing
Following the execution of each Purchase Agreement, Sallie Mae
shall service, or cause to be serviced, all Loans subject to such
Purchase Agreement as required under the Higher Education Act until
the date of the Bill of Sale.
(C) Bill of Sale/Loan Transmittal Summary Form
Sallie Mae shall deliver to Funding:
(i) a Bill of Sale executed by an authorized officer of Sallie
Mae, covering Loans offered by Sallie Mae and accepted by
Funding as set forth thereon, selling, assigning and conveying
to the Interim Eligible Lender Trustee on behalf of Funding
and its assignees all right, title and interest of Sallie Mae,
including the insurance interest of Sallie Mae, in each of the
Loans, and stating that the representations and warranties
made by Sallie Mae in Section 5 of these Master Terms are true
and correct on and as of the date of the Bill of Sale; and
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(ii) the Loan Transmittal Summary Form, attached to the Bill
of Sale, identifying each of the Eligible Loans which is the
subject of the Bill of Sale and setting forth the unpaid
Principal Balance of each such Loan.
(D) Endorsement
Sallie Mae shall provide a blanket endorsement transferring
the entire interest of Sallie Mae in the Loans to the Interim Eligible
Lender Trustee on behalf of Funding with the form of endorsement
provided for in the Purchase Agreement.
At the direction of and in such form as Funding may designate,
Sallie Mae also agrees to individually endorse any Eligible Loan as
Funding may request from time to time.
(E) Officer's Certificate
Sallie Mae shall furnish to Funding, with each Bill of Sale
provided in connection with each purchase of Loans pursuant to these
Master Terms, an Officer's Certificate, dated as of the date of such
Bill of Sale, in substantially the form of Attachment C.
(F) Loan Transfer Statement
Upon Funding's request, Sallie Mae shall deliver to Funding
one (1) or more Loan Transfer Statements (Department of Education Form
OE 1074 or its equivalent) provided by Funding, executed by Sallie Mae
and dated the date of the Bill of Sale. Sallie Mae agrees that
Funding and the Interim Eligible Lender Trustee may use the Bill of
Sale, including the Loan Transmittal Summary Form attached to the Bill
of Sale, in lieu of OE Form 1074, as official notification to the
Guarantor of the assignment by Sallie Mae to the Interim Eligible
Lender Trustee on behalf of Funding of the Loans listed on the Bill of
Sale.
(G) Power of Attorney
Sallie Mae hereby grants to Funding and the Interim Eligible
Lender Trustee for the benefit of Funding an irrevocable power of
attorney, which power of attorney is coupled with an interest, to
individually endorse or cause to be individually endorsed in the name
of Sallie Mae any Eligible Loan to evidence the transfer of such
Eligible Loan to Funding and the Interim Eligible Lender Trustee for
the benefit of Funding and to cause to be transferred physical
possession of any Note from Sallie Mae or the
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Servicer to Funding or the Interim Eligible Lender Trustee or any
custodian on their behalf.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SALLIE MAE AND
INTERIM ELIGIBLE LENDER TRUSTEE
(A) General
Sallie Mae represents and warrants to Funding that with respect to a
portfolio of Loans, as of the date of each Purchase Agreement and Bill of Sale:
(i) Sallie Mae is an eligible lender or other qualified holder
of loans originated pursuant to the Federal Family Education
Loan Program established under the Higher Education Act;
(ii) Sallie Mae is duly organized and existing under the laws
of the applicable jurisdiction;
(iii) Sallie Mae has all requisite power and authority to
enter into and to perform the terms of the Purchase Agreement;
and
(iv) Sallie Mae will not, with respect to any Loan purchased
under Purchase Agreements executed pursuant to these Master
Terms, agree to release any Guarantor from any of its
contractual obligations as an insurer of such Loan or agree
otherwise to alter, amend or renegotiate any material term or
condition under which such Loan is insured, except as required
by law or rules and regulations issued pursuant to law,
without the express prior written consent of Funding.
(B) Particular
Sallie Mae represents and warrants to Funding as to the Loans
purchased by Funding under each Purchase Agreement and each Bill of
Sale executed pursuant these Master Terms that:
(i) Sallie Mae has good title to, and is the sole owner of,
the Loans (together with the Special Allowance Payments and
Interest Subsidy Payments with respect to such Loans accrued
from and including April 1, 1996 through the date hereof),
free and clear of all security interests, liens, charges,
claims, offsets, defenses, counterclaims or encumbrances of
any nature and no right of rescission, offsets, defenses or
counterclaims have been asserted or threatened with respect to
the Loans (together with the Special Allowance Payments and
Interest Subsidy
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Payments with respect to such Loans accrued from and including
April 1, 1996 through the date hereof);
(ii) The Loans are Eligible Loans and the description of the
Loans set forth in the Purchase Agreement is true and correct;
(iii) Sallie Mae is authorized to sell, assign, transfer and
repurchase the Loans; and the sale, assignment and transfer of
such Loans is or, in the case of a Loan repurchase by Sallie
Mae, will be made pursuant to and consistent with the laws and
regulations under which Sallie Mae operates, and will not
violate any decree, judgment or order of any court or agency,
or conflict with or result in a breach of any of the terms,
conditions or provisions of any agreement or instrument to
which Sallie Mae is a party or by which Sallie Mae or its
property is bound, or constitute a default (or an event which
could constitute a default with the passage of time or notice
or both) thereunder;
(iv) The Loans are each in full force and effect in accordance
with their terms and are legal, valid and binding obligations
of the respective Borrowers thereunder subject to no defenses
(except the defense of infancy);
(v) Each Loan has been duly made and serviced in accordance
with the provisions of the Federal Family Education Loan
Program established under the Higher Education Act, and has
been duly insured by a Guarantor; such guarantee is in full
force and effect and is freely transferable to the Interim
Eligible Lender Trustee on behalf of Funding as an incident to
the purchase of each Loan; and all premiums due and payable to
such Guarantor shall have been paid in full as of the date of
the Bill of Sale;
(vi) Any payments on the Loans received by Sallie Mae which
have been allocated to reduction of principal and interest on
such Loans have been allocated on a simple interest basis; the
information with respect to the Loans as of the Cutoff Date as
stated on the Loan Transmittal Summary Form is true and
correct;
(vii) Due diligence and reasonable care have been exercised in
the making, administering, servicing and collecting the Loans
and, with respect to any Loan for which repayment terms have
been established, all disclosures of information required to
be made pursuant to the Higher Education Act have been made;
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(viii) All origination fees authorized to be collected
pursuant to Section 438 of the Higher Education Act have been
paid to the Secretary;
(ix) Each Loan has been duly made and serviced in accordance
with the provisions of all applicable federal and state laws;
(x) No Loan is more than ninety (90) days delinquent as of the
Cutoff Date and no default, breach, violation or event
permitting acceleration under the terms of any Loan has
arisen; and neither Sallie Mae nor any predecessor holder of
any Loan has waived any of the foregoing other than as
permitted by the Basic Documents;
(xi) It is the intention of Sallie Mae, the Interim Eligible
Lender Trustee and Funding, and Sallie Mae hereby warrants
that, the transfer and assignment herein contemplated
constitute a valid sale of the Loans from Sallie Mae to the
Interim Eligible Lender Trustee on behalf of Funding and that
the beneficial interest in and title to such Loans not be part
of Sallie Mae's estate in the event of the bankruptcy of
Sallie Mae or the appointment of a receiver with respect to
Sallie Mae;
(xii) There is only one original executed copy of the
promissory note evidencing each Loan; and
(xiii) No Borrower of any Loan as of the Cutoff Date is noted
in the related Loan File as being currently involved in a
bankruptcy proceeding.
(C) The Interim Eligible Lender Trustee represents and warrants that
as of the date of each Purchase Agreement and each Bill of Sale:
(i) The Interim Eligible Lender Trustee is a state banking
corporation duly organized and validly existing in good
standing under the laws of the state of Delaware and having 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 Purchase Agreement;
(ii) The Interim Eligible Lender Trustee has taken all
corporate action necessary to authorize the execution and
delivery by it of the Purchase Agreement, and the Purchase
Agreement will be executed and delivered by one of its
officers who is duly authorized to execute and deliver the
Purchase Agreement on its behalf;
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(iii) Neither the execution nor the delivery by it of the
Purchase 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 Interim 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; and
(iv) The Interim Eligible Lender Trustee is 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 the Purchase
Agreement and the other Basic Documents, it has a lender
identification number with respect to the Trust Student Loans
from the Department and has in effect a Guarantee Agreement
with each of the Guarantors with respect to the Trust Student
Loans.
SECTION 6. PURCHASE OF TRUST STUDENT LOANS; REIMBURSEMENT
Each party to this Agreement shall give notice to the other parties
promptly, in writing, upon the discovery of any breach of Sallie Mae's
representations and warranties made pursuant to Section 5 hereof which has a
materially adverse effect on the interest of Funding in any Trust Student Loan.
In the event of such a material breach which is not curable by reinstatement of
the Guarantor's guarantee of such Trust Student Loan, Sallie Mae shall
repurchase any affected Trust Student Loan not later than 120 days following
the earlier of the date of discovery of such material breach and the date of
receipt of the Guarantor reject transmittal form with respect to such Trust
Student Loan. In the event of such a material breach which is curable by
reinstatement of the Guarantor's guarantee of such Trust Student Loan, unless
the material breach shall have been cured within 360 days following the earlier
of the date of discovery of such material breach and the date of receipt of the
Guarantor reject transmittal form with respect to such Trust Student Loan,
Sallie Mae shall purchase such Trust Student Loan not later than the sixtieth
day following the end of such 360-day period. Sallie Mae shall also remit as
provided in Section 2.6 of the Administration Agreement on the date of purchase
of any Trust Student Loan pursuant to this Section 6 an amount equal to all
nonguaranteed interest amounts and forfeited Interest Subsidy Payments and
Special Allowance Payments with respect to such Trust Student Loan. In
consideration of the purchase of any such Trust Student Loan pursuant to this
Section 6, Sallie Mae
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shall remit the Purchase Amount in the manner specified in Section 2.6 of the
Administration Agreement.
In addition, if any breach of Section 5 hereof by Sallie Mae does not
trigger such purchase obligation but does result in the refusal by a Guarantor
to guarantee all or a portion of the accrued interest (or any obligation of
Funding to repay such interest to a Guarantor), or the loss (including any
obligation of Funding to repay the Department) of Interest Subsidy Payments and
Special Allowance Payments, with respect to any Trust Student Loan affected by
such breach, then Sallie Mae shall reimburse Funding by remitting an amount
equal to the sum of all such nonguaranteed interest amounts and such forfeited
Interest Subsidy Payments or Special Allowance Payments in the manner specified
in Section 2.6 of the Administration Agreement not later than (i) the last day
of the next Collection Period ending not less than 60 days from the date of the
Guarantor's refusal to guarantee all or a portion of accrued interest or loss
of Interest Subsidy Payments or Special Allowance Payments, or (ii) in the case
where Sallie Mae reasonably believes such losses are likely to be collected,
not later than the last day of the next Collection Period ending not less than
360 days from the date of the Guarantor's refusal to guarantee all or a portion
of accrued interest or loss of Interest Subsidy Payments or Special Allowance
Payments. At the time such payment is made, Sallie Mae shall not be required
to reimburse Funding for interest that is then capitalized, however, such
amounts shall be reimbursed if the borrower subsequently defaults and such
capitalized interest is not paid by the Guarantor.
Anything in this Section 6 to the contrary notwithstanding, if as of
the last Business Day of any month the aggregate outstanding principal amount
of Trust Student Loans with respect to which claims have been filed with and
rejected by a Guarantor or with respect to which the Servicer determines that
claims cannot be filed pursuant to the Higher Education Act as a result of a
breach by Sallie Mae or the Servicer, exceeds 1% of the Pool Balance, Sallie
Mae (and the Servicer as provided in the Servicing Agreement) shall purchase,
within 30 days of a written request of the Eligible Lender Trustee or the
Indenture Trustee, such affected Trust Student Loans in an aggregate principal
amount such that after such purchase the aggregate principal amount of such
affected Trust student Loans is less than 1% of the Pool Balance. The Trust
Student Loans to be purchased by Sallie Mae and the Servicer pursuant to the
preceding sentence shall be based on the date of claim rejection (or the date
of notice referred to in the first sentence of this Section 6) with Trust
Student Loans with the earliest such date to be purchased first.
In lieu of repurchasing Trust Student Loans pursuant to this Section
6, Sallie Mae may, at its option, substitute
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Eligible Loans or arrange for the substitution of Eligible Loans which are
substantially similar on an aggregate basis as of the date of substitution to
the Trust Student Loans for which they are being substituted with respect to
the following characteristics:
(1) status (i.e., in-school, grace, deferment, forbearance or
repayment),
(2) program type (i.e., Unsubsidized Stafford, Subsidized
Stafford, PLUS or SLS),
(3) school type,
(4) total return,
(5) principal balance, and
(6) remaining term to maturity.
In addition, each substituted Eligible Loan will comply, as of the
date of substitution, with all of the representations and warranties made
hereunder. In choosing Eligible Loans to be substituted pursuant to this
Section 6, Sallie Mae shall make a reasonable determination that the Eligible
Loans to be substituted will not have a material adverse effect on the
Noteholders and the Certificateholders.
In the event that Sallie Mae elects to substitute Eligible Loans
pursuant to this Section 6, Sallie Mae will remit to the Administrator the
amount of any shortfall between the Purchase Amount of the substituted Eligible
Loans and the Purchase Amount of the Trust Student Loans for which they are
being substituted. Sallie Mae shall also remit to the Administrator an amount
equal to all nonguaranteed interest amounts and forfeited Interest Subsidy
Payments and Special Allowance Payments with respect to the Trust Student Loans
in the manner provided in Section 2.6 of the Administration Agreement. The
sole remedy of Funding, the Eligible Lender Trustee, the Certificateholders and
the Noteholders with respect to a breach by Sallie Mae pursuant to Section 5
hereof shall be to require Sallie Mae to purchase Trust Student Loans, to
reimburse Funding as provided above or to substitute Student Loans pursuant to
this Section. The Eligible Lender Trustee shall have no duty to conduct any
affirmative investigation as to the occurrence of any condition requiring the
purchase of any Trust Student Loan or the reimbursement for any interest
penalty pursuant to this Section 6.
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SECTION 7. OBLIGATION TO REMIT SUBSEQUENT PAYMENTS
AND FORWARD COMMUNICATIONS
(A) Any payment received by Sallie Mae with respect to amounts
accrued after the Date of the Bill of Sale for any Loan sold to Funding, which
payment is not reflected in the Loan Transmittal Summary Form, shall be
received by Sallie Mae in trust for the account of Funding and Sallie Mae
hereby disclaims any title to or interest in any such amounts. Within two (2)
business days following the date of receipt, Sallie Mae shall remit to Funding
an amount equal to any such payments on a list provided by Funding identifying
the Loans with respect to which such payments were made, the amount of each
such payment and the date each such payment was received.
(B) Any written communication received at any time by Sallie Mae with
respect to any Loan subject to this Purchase Agreement shall be transmitted by
Sallie Mae to Servicer within two (2) business days of receipt. Such
communications shall include, but not be limited to, letters, notices of death
or disability, notices of bankruptcy, forms requesting deferment of repayment
or loan cancellation, and like documents.
SECTION 8. CONTINUING OBLIGATION OF SALLIE MAE
Sallie Mae shall provide all reasonable assistance necessary for
Funding to resolve account problems raised by any Borrower, the Guarantor or
the Secretary provided such account problems are attributable to or are alleged
to be attributable to (a) an event occurring during the period Sallie Mae owned
the Loan, or (b) a payment made or alleged to have been made to Sallie Mae.
Further, Sallie Mae agrees to execute any financing statements at the request
of Funding in order to reflect Funding's interest in the Loans.
SECTION 9. LIABILITY OF SALLIE MAE; INDEMNITIES
Sallie Mae shall be liable in accordance herewith only to the extent
of the obligations specifically undertaken by Sallie Mae under this Purchase
Agreement.
(i) Sallie Mae shall indemnify, defend and hold harmless Funding and
the Interim Eligible Lender Trustee in its individual capacity and
their officers, directors, employees and agents from and against any
taxes that may at any time be asserted against any such Person with
respect to the transactions contemplated herein and in the other Basic
Documents (except any such income taxes arising out of fees paid to
the Interim Eligible Lender Trustee), including any sales, gross
receipts, general corporation, tangible personal property, privilege
or license taxes
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(but, in the case of Funding, not including any taxes asserted with
respect to, and as of the date of, the sale of the Loans to the
Interim Eligible Lender Trustee on behalf of Funding, or asserted with
respect to ownership of the Trust Student Loans) and costs and
expenses in defending against the same.
(ii) Sallie Mae shall indemnify, defend and hold harmless Funding and
the Interim Eligible Lender Trustee in its individual capacity, and
the officers, directors, employees and agents of Funding, and the
Interim Eligible Lender Trustee from and against any and all costs,
expenses, losses, claims, damages and liabilities arising out of, or
imposed upon such Person through, Sallie Mae's willful misfeasance,
bad faith or gross negligence in the perfor mance of its duties under
the Purchase Agreement, or by reason of reckless disregard of its
obligations and duties under the Purchase Agreement.
(iii) Sallie Mae shall be liable as primary obligor for, and shall
indemnify, defend and hold harmless the Interim Eligible Lender
Trustee in its individual capacity and its officers, directors,
employees and agents from and against, all costs, expenses, losses,
claims, damages, obligations and liabilities arising out of, incurred
in connection with or relating to the Purchase Agreement, the other
Basic Documents, the acceptance or performance of the trusts and
duties set forth herein and in the Sale Agreement or the action or the
inaction of the Interim Eligible Lender Trustee hereunder, except to
the extent that such cost, expense, loss, claim, damage, obligation or
liability: (a) shall be due to the willful misfeasance, bad faith or
negligence (except for errors in judgment) of the Interim Eligible
Lender Trustee, (b) shall arise from any breach by the Interim
Eligible Lender Trustee of its covenants made under any of the Basic
Documents; or (c) shall arise from the breach by the Interim Eligible
Lender Trustee of any of its representations or warranties made in its
individual capacity set forth in these Master Terms or any Purchase
Agreement. In the event of any claim, action or proceeding for which
indemnity will be sought pursuant to this paragraph, the Interim
Eligible Lender Trustee's choice of legal counsel shall be subject to
the approval of Sallie Mae, which approval shall not be unreasonably
withheld.
Indemnification under this Section shall survive the resignation or
removal of the Interim Eligible Lender Trustee and the termination of these
Master Terms, and shall include reasonable fees and expenses of counsel and
expenses of litigation. If Sallie Mae shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such payments
are made thereafter shall collect any of
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such amounts from others, such Person shall promptly repay such amounts to
Sallie Mae, without interest.
SECTION 10. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF SALLIE MAE
Any Person (a) into which Sallie Mae may be merged or consolidated,
(b) which may result from any merger or consolida tion to which Sallie Mae
shall be a party or (c) which may suc ceed to the properties and assets of
Sallie Mae substantially as a whole, shall be the successor to Sallie Mae
without the execution or filing of any document or any further act by any of
the parties to this Purchase Agreement; provided, however, that Sallie Mae
hereby covenants that it will not consummate any of the foregoing transactions
except upon satisfaction of the following: (i) the surviving Person, if other
than Sallie Mae, executes an agreement of assumption to perform every
obligation of Sallie Mae under the Purchase Agreement, (ii) immediately after
giving effect to such transaction, no representation or warranty made pursuant
to Section 5 shall have been breached, (iii) the surviving Person, if other
than Sallie Mae, shall have delivered to the Interim Eligible Lender Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply
with this Section and that all conditions precedent, if any, provided for in
this Purchase Agreement relating to such transaction have been complied with,
and that the Rating Agency Condition shall have been satisfied with respect to
such transaction (iv) if Sallie Mae is not the surviving entity, Sallie Mae
shall have delivered to the Interim Eligible Lender Trustee an Opinion of
Counsel either (A) stating that, in the opinion of such counsel, all financing
statements and continuation statements and amendments thereto have been
executed and filed that are necessary fully to preserve and protect the
interest of Funding and the Interim Eligible Lender Trustee in the Loans and
reciting the details of such filings, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to preserve and protect such
interests.
SECTION 11. LIMITATION ON LIABILITY OF SALLIE MAE AND OTHERS
Sallie Mae and any director or officer or employee or agent thereof
may rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any
matters arising hereunder (provided that such reliance shall not limit in any
way Sallie Mae's obligations under Section 6.) Sallie Mae shall not be under
any obligation to appear in, prosecute or defend any legal action that shall
not be incidental to its obligations under these Master Terms or any Purchase
Agreement, and that in its opinion may involve it in any expense or liability.
Except as
18
<PAGE> 19
provided herein, the repurchase (or substitution) and reimbursement obligations
of Sallie Mae will constitute the sole remedy available to Funding for uncured
breaches; provided, however, that the information with respect to the Loans
listed on the Bill of Sale may be adjusted in the ordinary course of business
subsequent to the date of the Bill of Sale and to the extent that the aggregate
Principal Balance of the Loans listed on the Bill of Sale is less than the
aggregate Principal Balance stated on the Bill of Sale, Sallie Mae shall remit
such amount to the Interim Eligible Lender Trustee on behalf of Funding. Such
reconciliation payment shall be made from time to time but no less frequently
than semi-annually.
SECTION 12. LIMITATION OF LIABILITY OF INTERIM ELIGIBLE LENDER
TRUSTEE
Notwithstanding anything contained herein to the contrary, these
Master Terms and any Purchase Agreement have been signed by The Chase Manhattan
Bank (USA) not in its individual capacity but solely in its capacity as Interim
Eligible Lender Trustee for Funding and in no event shall The Chase Manhattan
Bank (USA) in its individual capacity have any liability for the represen
tations, warranties, covenants, agreements or other obligations of Funding,
under these Master Terms or any Purchase Agreement or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of Funding.
SECTION 13. EXPENSES
Except as otherwise provided herein, each party to these Master Terms
or any Purchase Agreement shall pay its own expense incurred in connection with
the preparation, execution and delivery of these Master Terms and any Purchase
Agreement and the transactions contemplated herein or therein.
SECTION 14. SURVIVAL OF COVENANTS/SUPERSESSION
All covenants, agreements, representations and warranties made herein
and in or pursuant to any Purchase Agreements executed pursuant to these Master
Terms shall survive the consummation of the purchase of the Loans provided for
in each Purchase Agreement. All covenants, agreements, representations and
warranties made or furnished pursuant hereto by or on behalf of Sallie Mae
shall bind and inure to the benefit of any successors or assigns of Funding and
shall survive with respect to each Loan. Each Purchase Agreement supersedes
all previous agreements and understandings between Funding and Sallie Mae with
respect to the subject matter thereof. These Master Terms and any Purchase
Agreement may be changed, modified or discharged, and any rights or
obligations hereunder may be waived, only by a written instrument signed by a
duly authorized
19
<PAGE> 20
officer of the party against whom enforcement of any such waiver, change,
modification or discharge is sought. The waiver by Funding of any covenant,
agreement, representation or warranty required to be made or furnished by
Sallie Mae or the waiver by Funding of any provision herein contained or
contained in any Purchase Agreement shall not be deemed to be a waiver of any
breach of any other covenant, agreement, representation, warranty or provision
herein contained, nor shall any waiver or any custom or practice which may
evolve between the parties in the administration of the terms hereof or of any
Purchase Agreement, be construed to lessen the right of Funding to insist upon
the performance by Sallie Mae in strict accordance with said terms.
SECTION 15. COMMUNICATION AND NOTICE REQUIREMENTS
All communications, notices and approvals provided for hereunder shall
be in writing and mailed or delivered to Sallie Mae or Funding, as the case may
be, addressed as set forth in the Purchase Agreement or at such other address
as either party may hereafter designate by notice to the other party. Notice
given in any such communication, mailed to Sallie Mae or Funding by
appropriately addressed registered mail, shall be deemed to have been given on
the day following the date of such mailing.
SECTION 16. FORM OF INSTRUMENTS
All instruments and documents delivered in connection with these
Master Terms and any Purchase Agreement, and all proceedings to be taken in
connection with these Master Terms and any Purchase Agreement and the
transactions contemplated herein and therein, shall be in a form as set forth
in the attachments hereto, and Funding shall have received copies of such
documents as it or its counsel shall reasonably request in connection
therewith. Any instrument or document which is substantially in the same form
as an Attachment hereto or a recital herein will be deemed to be satisfactory
as to form.
SECTION 17. AMENDMENT
These Master Terms and any Purchase Agreement may be amended by the
parties thereto without the consent of the related Noteholders or
Certificateholders for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of such Master Terms and
Purchase Agreements or of modifying in any manner the rights of such
Noteholders or Certificateholders; provided that such action will not, in the
opinion of counsel satisfactory to the related Indenture Trustee and Eligible
Lender Trustees, materially and adversely affect the interest of any such
Noteholder or Certificateholder.
20
<PAGE> 21
In addition, these Master Terms and any Purchase Agreement may also be
amended from time to time by Sallie Mae, the Interim Eligible Lender Trustee
and Funding, with the consent of the Noteholders of Notes evidencing a majority
of the Outstanding Amount of the Notes and the consent of the
Certificateholders of Certificates evidencing a majority of the Certificate
Balance, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of these Master Terms or any Purchase
Agreements or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the time
of, collections of payments with respect to Loans or distributions that shall
be required to be made for the benefit of the Noteholders or the
Certificateholders or (b) reduce the aforesaid percentage of the Outstanding
Amount of the Notes and the Certificate Balance of Certificates, the
Noteholders or the Certificateholders of which are required to consent to any
such amendment, without the consent of all outstanding Noteholders and
Certificateholders.
Promptly after the execution of any such amendment or consent (or, in
the case of the Rating Agencies, five Business Days prior thereto), the Interim
Eligible Lender Trustee shall furnish written notification of the substance of
such amendment or consent to the Indenture Trustee, each Certificateholder, and
each of the Rating Agencies.
It shall not be necessary for the consent of Certificateholders or
Noteholders 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.
Prior to the execution of any amendment to these Master Terms, the
Interim Eligible Lender Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that execution of such amendment is authorized or
permitted by this Agreement and the Opinion of Counsel referred to in Section
7.1 I((i) of the Administration Agreement. The Interim Eligible Lender Trustee
may, but shall not be obligated to, enter into any such amendment which affects
the Interim Eligible Lender Trustee's own rights, duties or immunities under
this Agreement or otherwise.
SECTION 18. NONPETITION COVENANTS
Notwithstanding any prior termination of these Master Terms Sallie Mae
and the Interim Eligible Lender Trustee shall not acquiesce, petition or
otherwise invoke or cause Funding to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
Funding under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignees, trustee, custodian, sequestrator
21
<PAGE> 22
or other similar official of Funding or any substantial part of its property,
or ordering the winding up or liquidation of the affairs of the Funding.
SECTION 19. GOVERNING LAW
These Master Terms and any Purchase Agreement shall be government by
and construed in accordance with the laws of the State of New York.
22
<PAGE> 23
STUDENT LOAN MARKETING SLM FUNDING CORPORATION
ASSOCIATION (Purchaser)
(Seller)
By: /s/ Robert R. Levine By: /s/ Denise B. McGlone
--------------------- ----------------------
Name: Name:
--------------------- ----------------------
Title: Title:
-------------------- ---------------------
THE CHASE MANHATTAN BANK (USA)
Not in its individual capacity but
solely as Interim Eligible Lender Trustee
By: /s/ John W. Mack
---------------------
Name: John W. Mack
Title: Second Vice President
23
<PAGE> 24
ATTACHMENT A
PURCHASE AGREEMENT
Dated as of July 9, 1996
PURCHASE AGREEMENT NUMBER 1
---
Sallie Mae hereby offers for sale to the Chase Manhattan Bank (USA) as
Interim Eligible Lender Trustee for the benefit of SLM Funding Corporation
("Funding") under the Interim Trust Agreement dated as of July 1, 1996 between
Funding and the Interim Eligible Lender Trustee, the entire right, title and
interest of Sallie Mae in the Loans, together with the Interest Subsidy
Payments and Special Allowance Payments with respect to such Loans accrued from
and including April 1, 1996 through the date hereof, as described in the Bill
of Sale and Loan Transmittal Summary Form incorporated herein and, to the
extent indicated below, the Interim Eligible Lender Trustee for the benefit of
Funding accepts Sallie Mae's offer. In order to qualify as Eligible Loans, no
payment of principal or interest shall be more than ninety (90) days Delinquent
as of the Cutoff Date which date shall be June 17, 1996.
TERMS, CONDITIONS AND COVENANTS
In consideration of the Purchase Price, Sallie Mae hereby sells to the
Interim Eligible Lender Trustee for the benefit of Funding the entire right,
title and interest of Sallie Mae in the Loans, together with the Interest
Subsidy Payments and Special Allowance Payments with respect to such Loans
accrued from and including April 1, 1996 through the date hereof, accepted for
purchase, subject to all the terms and conditions of the Purchase Agreement
Master Securitization Terms Number 1000 ("Master Terms") and any amendments
thereto, incorporated herein by reference, among Sallie Mae, Funding, and the
Interim Eligible Lender Trustee. The Initial Payment of the Loans shall equal
$1,498,698,899.80 (equal to $1,502,983,159.80 (representing the offering price
of the Securities less underwriters' commissions) less (a) $3,756,760
representing the Reserve Account Initial Deposit and (B) $527,500
(representing a capital contribution from Sallie Mae to Funding to be used to
purchase a 1% interest in the Certificates)).
This document shall constitute a Purchase Agreement as referred to in
the Master Terms and, except as modified herein, each term used herein shall
have the same meaning as in the Master Terms. All references in the Master
Terms to Loans or Eligible Loans shall be deemed to refer to the Loans governed
by this Purchase Agreement. Sallie Mae hereby makes, as of the date hereof,
all the representations and warranties contained in the Master Terms and makes
such representations and warranties with respect to the Loans governed by this
Purchase Agreement.
1
<PAGE> 25
Sallie Mae authorizes the Interim Eligible Lender Trustee for the
benefit of Funding to use a copy of the Bill of Sale, including the Loan
Transmittal Summary Form attached to the Bill of Sale (in lieu of OE Form
1074), as official notification to the Guarantor of assignment to the Interim
Eligible Lender Trustee on behalf of Funding of the Loans on the date of
purchase.
The parties hereto intend that the transfer of Loans, together with
the Interest Subsidy Payments and Special Allowance Payments with respect to
such Loans accrued from and including April 1, 1996 through the date hereof, as
described in the Bill of Sale and Loan Transmittal Summary Form be, and be
construed as, a valid sale of such Loans, together with the Interest Subsidy
Payments and Special Allowance Payments with respect to such Loans accrued from
and including April 1, 1996 through the date hereof, from Sallie Mae to the
Interim Eligible Lender Trustee for the benefit of Funding. However, in the
event that notwithstanding the intention of the parties, such transfer is
deemed to be a transfer for security, then Sallie Mae hereby grants to the
Interim Eligible Lender Trustee for the benefit of Funding a first priority
security interest in and to all Loans, together with the Interest Subsidy
Payments and Special Allowance Payments with respect to such Loans accrued from
and including April 1, 1996 through the date hereof, as described in the Bill
of Sale and Loan Transmittal Summary Form to secure a loan in an amount equal
to the Purchase Price of such loans.
STUDENT LOAN MARKETING SLM FUNDING CORPORATION
ASSOCIATION (Purchaser)
(Seller)
By: /s/ Robert R. Levine By: /s/ Denise B. McGlone
--------------------- ------------------------
Name: Name:
--------------------- -------------------------
Title: Title:
-------------------- ------------------------
THE CHASE MANHATTAN BANK (USA)
Not in its individual capacity but
solely as Interim Eligible Lender Trustee
By: /s/ John W. Mack
-------------------
Name: John W. Mack
Title: Second Vice President
2
<PAGE> 26
PURCHASE AGREEMENT NUMBER 1
---
BLANKET ENDORSEMENT DATED JULY 9, 1996
Student Loan Marketing Association ("Sallie Mae"), by execution of this
instrument, hereby endorses the attached promissory note which is one (1) of
the promissory notes ("the Notes") described in the Bill of Sale executed by
Sallie Mae in favor of the Chase Manhattan Bank (USA) as the Interim Eligible
Lender Trustee for the benefit of SLM Funding Corporation ("Funding"). This
endorsement is in blank, unrestricted form and without recourse except as
provided in Section 6 of the Master Terms referred to in the Purchase
Agreement among Sallie Mae, Funding, and the Interim Eligible Lender Trustee
which covers this promissory note.
This endorsement may be effected by attaching either this instrument or
a facsimile hereof to each or any of the Notes.
Notwithstanding the foregoing, Sallie Mae agrees to individually
endorse each Note in the form provided by Funding as Funding may from time to
time require or if such individual endorsement is required by the Guarantor of
the Note.
THE SALE AND PURCHASE OF THE LOANS SHALL BE SUBJECT TO THE TERMS, CONDITIONS
AND COVENANTS, INCLUDING THE BLANKET ENDORSEMENT, AS SET FORTH IN THE PURCHASE
AGREEMENT. BY EXECUTION HEREOF, SALLIE MAE ACKNOWLEDGES THAT SALLIE MAE HAS
READ, UNDERSTANDS AND AGREES TO BE BOUND BY ALL TERMS, CONDITIONS AND COVENANTS
OF THE PURCHASE AGREEMENT. THE SALE AND PURCHASE SHALL BE CONSUMMATED UPON
FUNDING'S PAYMENT TO SALLIE MAE OF THE INITIAL PAYMENT (AS DEFINED IN THE
MASTER TERMS) AND, UNLESS OTHERWISE AGREED BY SALLIE MAE AND FUNDING, SHALL BE
EFFECTIVE AS OF THE DATE OF THE BILL OF SALE.
<TABLE>
<S> <C>
SELLER PURCHASER
================================== ===============================
The Chase Manhattan Bank (USA),
Student Loan Marketing Association not in its individual capacity
1050 Thomas Jefferson Street, N.W. but solely as Interim Eligible
Washington, D.C. 20007 Lender Trustee for the benefit
of the SLM Funding Corporation
Lender Code: under the Interim Trust
----------------- Agreement dated July 1, 1996
By: /s/ Robert R. Levine
---------------------
(Signature of Authorized
Officer of Seller)
By: /s/ John W. Mack
Name: ---------------------------
--------------------------- (Signature of Authorized
Title: Signatory for Purchaser)
--------------------------
Name: John W. Mack
Title: Second Vice President
Date of Purchase: July 9, 1996
</TABLE>
-----------------------------------------------------------------
NOTE: Boxed areas on this form are to be completed by Purchaser.
-----------------------------------------------------------------
1
<PAGE> 27
BILL OF SALE DATED JULY 9, 1996
The undersigned ("Sallie Mae"), for value received and pursuant to the
terms and conditions of Purchase Agreement Number 1 ("Purchase Agreement")
among SLM Funding Corporation ("Funding"), and the Chase Manhattan Bank (USA),
as Interim Eligible Lender Trustee for the benefit of Funding under the Interim
Trust Agreement dated as of July 1, 1996 between Funding and the Interim
Eligible Lender Trustee, does hereby sell, assign and convey to the Interim
Eligible Lender Trustee for the benefit of Funding and its assignees all right,
title and interest of Sallie Mae, including the insurance interest of Sallie
Mae under the Federal Family Education Loan Program (20 U.S.C. 1071 et seq.),
in the Loans identified herein, together with the Interest Subsidy Payments and
Special Allowance Payments with respect to such Loans accrued from and
including April 1, 1996 through the date hereof, all of which the Interim
Eligible Lender Trustee for the benefit of Funding has accepted for purchase.
The portfolio accepted for purchase by the Interim Eligible Lender Trustee for
the benefit of Funding and the respective effective dates of sale and purchase
are described below and the individual Accounts are listed on the Schedule A
attached hereto.
Sallie Mae hereby makes the representations and warranties set forth in
Section 5 of the Purchase Agreement Master Securitization Terms Number 1000
incorporated by reference in the Purchase Agreement. Sallie Mae authorizes the
Interim Eligible Lender Trustee on behalf of Funding to use a copy of this
document (in lieu of OE Form 1074) as official notification to the Guarantor(s)
of assignment to the Interim Eligible Lender Trustee for the benefit of Funding
of the Loans on the date of purchase.
LISTING OF LOANS
<TABLE>
<CAPTION>
OFFERED BY ACCEPTED BY ELIGIBLE
SELLER LENDER TRUSTEE
NUMBER OF PRINCIPAL NUMBER OF PRINCIPAL
LOAN TYPE LOANS* BALANCE* LOANS BALANCE
- --------- ------ -------- ------------- --------------
<S> <C> <C> <C> <C>
SUBSIDIZED STAFFORD
- ---------- --------
Interim 140,259 439,273,772 140,259 439,273,772
Repayment 251,248 592,625,824 251,248 592,625,824
UNSUBSIDIZED STAFFORD
- ---------------------
Deferred 53,295 188,383,757 53,295 188,383,757
Repayment 12,834 34,302,550 12,834 34,302,550
PLUS/SLS
- --------
Deferred 6,243 27,950,609 6,243 27,950,609
Non-Deferred 57,166 220,167,566 57,166 220,167,566
CONSOLIDATION 0 0 0 0
- -------------
TOTAL 521,045 1,502,704,078 521,045 1,502,704,078
======= ============= ======= =============
</TABLE>
ADDITIONAL LOAN CRITERIA
Not in claims status, not previously rejected
Not in litigation
Last disbursement is greater than 120 days from cutoff date
Loan is not swap-pending
1
<PAGE> 28
GUARANTOR(S):
American Student Assistance Guarantor
Arizona Education Loan Program
California Student Aid Commission
Connecticut Student Loan Foundation
Florida Office of Student Financial Assistance
Great Lakes Higher Education Corporation
Illinois Student Assistance Commission
Iowa College Aid Commission
Michigan Higher Education Assistance Authority
Missouri Coordinating Board for Higher Education
New Jersey Higher Education Assistance Authority
N.Y. State Higher Education Services Corporation
Northstar Guarantee Inc.
Northwest Education Loan Association
Ohio Student Aid Commission
Oklahoma State Regents for Higher Education
Oregon State Scholarship Commission
Pennsylvania Higher Education Assistance Agency
Tennessee Student Assistance Corporation
Texas Guaranteed Student Loan Corporation
United Student Aid Funds, Inc.
Virginia State Education Assistance Authority
*Based upon Sallie Mae's estimated calculations, which may be adjusted upward
or downward based upon Funding's reconciliation.
<TABLE>
<S> <C>
SELLER PURCHASER
================================== =================================
The Chase Manhattan Bank (USA)
Student Loan Marketing Association not in its individual capacity
1050 Thomas Jefferson Street, N.W. but solely as Interim Eligible
Washington, D.C. 20007 Lender Trustee for the benefit
of SLM Funding Corporation
Lender Code:
---------------
By: /s/ Robert R. Levine By: /s/ John W. Mack
------------------------------ -----------------
(Signature of Authorized (Signature of Authorized
Officer of Seller) Signatory for Purchaser)
Name: Name: John W. Mack
---------------------------
Title: Title: Second Vice President
--------------------------
Date of Purchase (with respect
to the Loans, other than the
rights to the Interest Subsidy
Payments and Special Allowance
Payments): July 9, 1996.
Date of Purchase (with respect
to the rights to the Interest
Subsidy Payments and Special
Allowance Payments): April 1,
1996.
</TABLE>
2
<PAGE> 29
OFFICER'S CERTIFICATE
I, ______________________________, of the Student Loan Marketing
Association (the "Sallie Mae"), hereby certify to SLM Funding Corporation that:
1. The person(s) named below are at the date hereof the duly elected,
qualified and acting officers of Sallie Mae holding the offices indicated and
the signature following each name is the genuine signature of the person named:
<TABLE>
<CAPTION>
TITLE NAME SIGNATURE
----- ---- ---------
<S> <C> <C>
- ------------------------------------- ------------------------------- ----------------------------------
- ------------------------------------- ------------------------------- ----------------------------------
- ------------------------------------- ------------------------------- ----------------------------------
- ------------------------------------- ------------------------------- ----------------------------------
</TABLE>
2. Any of the above-named person(s) is duly authorized to sign
agreements providing for the sale of student loans to SLM Funding Corporation.
WITNESS my hand this day ___ of _________________, 199__.
By:
-----------------------------------------------
(Not an officer listed above)
Name:
---------------------------------------------
Title:
--------------------------------------------
1
<PAGE> 1
EXHIBIT 99.2
SALE AGREEMENT MASTER SECURITIZATION TERMS NUMBER 1000
These Sale Agreement Master Securitization Terms Number 1000 ("Master
Sale Terms") dated as of July 9, 1996 among SLM Funding Corporation ("Seller"),
The Chase Manhattan Bank (USA), not in its individual capacity but solely as
Interim Eligible Lender Trustee (the "Interim Eligible Lender Trustee") for the
benefit of the Seller under the Interim Trust Agreement dated as of July 1,
1996 between Seller and the Interim Eligible Lender Trustee, The Chase
Manhattan Bank (USA), not in its individual capacity but solely as Eligible
Lender Trustee on behalf of SLM Student Loan Trust 1996-3( the "Eligible Lender
Trustee"), and SLM Student Loan Trust 1996-3 (the "Purchaser"), shall be
effective upon execution by the parties hereto. References to the Seller
herein mean the Interim Eligible Lender Trustee, and references to the
Purchaser mean the Eligible Lender Trustee, for all purposes involving the
holding or transferring of legal title to the Trust Student Loans.
WHEREAS, the Seller is the owner of certain student loans guaranteed
under the Higher Education Act;
WHEREAS, legal title to such loans is vested in the Interim Eligible
Lender Trustee, as trustee for the benefit of the Seller as the sole
beneficiary;
WHEREAS, Seller may desire to sell its interest in such loans from
time to time and Purchaser may desire to purchase such loans from Seller;
WHEREAS, the Eligible Lender Trustee is willing to hold legal title
to, and serve as eligible lender trustee with respect to, such loans for the
benefit of the Purchaser;
NOW, THEREFORE, in connection with the mutual promises contained
herein, the parties hereto agree as follows:
SECTION 1. TERMS
These Master Sale Terms establish the terms under which Seller (and
with respect to legal title, the Interim Eligible Lender Trustee for the
benefit of Seller) may sell and Purchaser (and with respect to legal title, the
Eligible Lender Trustee on behalf of the Purchaser) may purchase the Loans (and
all obligations of the Borrowers thereunder) specified on each Sale Agreement
(" Sale Agreement") as the parties may execute from time to time pursuant to
these Master Sale Terms. Each such Sale Agreement shall be substantially in
the form of Attachment A hereto, incorporating by reference the terms of these
Master Sale Terms, and shall be a separate agreement among Seller, Purchaser,
Eligible Lender Trustee on behalf of Purchaser, and the Interim Eligible Lender
Trustee for the benefit of Seller with respect to the Loans covered by the
terms of such Sale
<PAGE> 2
Agreement for all purposes. If the terms of a Sale Agreement conflict with the
terms of these Master Sale Terms, the terms of such Sale Agreement shall
supersede and govern.
SECTION 2. DEFINITIONS
Capitalized terms used but not otherwise defined herein shall have the
definitions set forth in Appendix A hereto.
For purposes hereof:
(A) "Account" means all of the Eligible Loans hereunder of one (1)
Borrower that are of the same Loan type made under the identical
subsection of the Higher Education Act and in the same status.
(B) "Bill of Sale" means that document executed by an authorized
officer of the Seller and the Interim Eligible Lender Trustee for the
benefit of Seller which shall set forth the Loans offered by the
Seller and the Interim Eligible Lender Trustee for the benefit of the
Seller and accepted for purchase by the Eligible Lender Trustee on
behalf of the Purchaser and which shall sell, assign and convey to the
Eligible Lender Trustee on behalf of the Purchaser and its assignees
all right, title and interest of the Seller and of the Interim
Eligible Lender Trustee for the benefit of the Seller in the Loans
listed on the Bill of Sale and will certify that the representations
and warranties made by the Seller pursuant to Section 5(A) of these
Master Sale Terms are true and correct.
(C) "Borrower" means the obligor on a Loan.
(D) "Consolidation Loan" means a Loan made pursuant to and in full
compliance with Section 428C of the Higher Education Act.
(E) "Cutoff Date" means with respect to the first sale hereunder,
June 17, 1996, and, with respect to subsequent sales hereunder, a date
agreed to by Seller and Purchaser to use in determining the Principal
Balance and accrued interest to be capitalized for purposes of
completing the Loan Transmittal Summary Form.
(F) "Deferred Payment" means all amounts equal to amounts
distributed to the Seller pursuant to Section 2.8 C(G) of the
Administration Agreement (exclusive of the amount of any such
distribution attributable to the reduction from time to time of the
Specified Reserve Account Balance).
(G) "Delinquent" means the period any payment of principal or
interest due on the Loan is overdue.
2
<PAGE> 3
(H) "Eligible Loan" means a Loan offered for sale by Seller under
the Sale Agreement which as of the Cutoff Date is current or no more
Delinquent than permitted under the Sale Agreement in payment of
principal or interest and which meets the following criteria as of the
effective date of the Bill of Sale:
(i) is a Stafford Loan, a Consolidation Loan, a PLUS Loan
or SLS Loan;
(ii) is owned by Seller and is fully disbursed;
(iii) is guaranteed as to principal and interest by the
applicable Guarantor to the maximum extent permitted by the
Higher Education Act for such Loan;
(iv) bears interest at a stated rate of not less than the
maximum rate permitted under the Higher Education Act for such
Loan;
(v) is eligible for the payment of the quarterly special
allowance at the full and undiminished rate established under
the formula set forth in the Higher Education Act for such
Loan;
(vi) if not yet in repayment status, is eligible for the
payment of interest benefits by the Secretary or, if not so
eligible, is a Loan for which interest either is billed
quarterly to Borrower or deferred until commencement of the
repayment period, in which case such accrued interest is
subject to capitalization to the full extent permitted by the
applicable Guarantor;
(vii) is supported by the following documentation:
(a) for each Loan:
1. loan application, and any supplement
thereto,
2. original promissory note and any
addendum thereto or a certified copy
thereof if more than one loan is
represented by a single promissory
note and all loans so represented
are not being sold at the same time,
3. evidence of guarantee,
4. any other document and/or record
which Purchaser may be required to
retain
3
<PAGE> 4
pursuant to the Higher Education Act;
and
(b) for each Loan only if applicable:
1. payment history (or similar
document) including (i) an
indication of the Principal Balance
and the date through which interest
has been paid, each as of the Cutoff
Date and (ii) an accounting of the
allocation of all payments by
Borrower or on Borrower's behalf to
principal and interest on the Loan,
2. documentation which supports periods
of current or past deferment or
past forbearance,
3. a collection history, if the Loan
was ever in a delinquent
status, including detailed summaries
of contacts and including the
addresses or telephone numbers used
in contacting or attempting to
contact Borrower and any endorser
and, if required by the Guarantor,
copies of all letters and other
correspondence relating to due
diligence processing,
4. evidence of all requests for
skip-tracing assistance and
current address of Borrower, if
located,
5. evidence of requests for pre-claims
assistance, and evidence that
the Borrower's school(s) have been
notified,
6. a record of any event resulting in a
change to or confirmation of
any data in the Loan file.
(I) "Initial Payment" means the dollar amount specified in the
applicable Sale Agreement.
(J) "Loan" means the Note or Notes offered for sale pursuant to
the Sale Agreement and related documentation together with any
guaranties and other rights relating thereto.
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(K) "Loan Transmittal Summary Forms" means the forms provided to
Seller by Purchaser and completed by Seller which list, by Borrower,
the Loans subject to the Bill of Sale and the outstanding Principal
Balance and accrued interest thereof as of the Cutoff Date.
(L) "Note" means the promissory note of the Borrower and any
amendment thereto evidencing the Borrower's obligation with regard to
a student loan guaranteed under the Higher Education Act.
(M) "PLUS Loan" means a Loan which was made pursuant to the PLUS
Program established under Section 428B of the Higher Education Act(or
predecessor provisions).
(N) "Principal Balance" means the outstanding principal amount of
the Loan, plus interest expected to be capitalized (if any), less
amounts which may not be insured (such as late charges).
(O) "Purchase Price" means the sum of the Initial Payment and
Deferred Payment.
(P) "Secretary" means the United States Secretary of Education or
any successor.
(Q) "SLS Loan" means a Loan which was made pursuant to the
Supplemental Loans for Students Program established under Section 428A
of the Higher Education Act(or predecessor provisions), including
Loans referred to as ALAS Loans or Student PLUS Loans.
(R) "Stafford Loans" means Subsidized Stafford Loans and
Unsubsidized Stafford Loans.
(S) "Subsidized Stafford Loan" means a Loan for which the interest
rate is governed by Section 427A(a) or 427A(d) of the Higher Education
Act.
(T) "Unsubsidized Stafford Loan" means a Loan made pursuant to
Section 428H of the Higher Education Act.
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SECTION 3. SALE/PURCHASE
(A) Consummation of Sale and Purchase
The sale and purchase of Eligible Loans pursuant to a Sale
Agreement shall be consummated upon Purchaser's receipt from the
Seller and the Interim Eligible Lender Trustee for the benefit of the
Seller of the Bill of Sale and the payment by Purchaser to Seller of
the Initial Payment, and when consummated such sale and purchase shall
be effective as of the date of the Bill of Sale. Seller and Purchaser
shall use their best efforts to perform promptly their respective
obligations pursuant to such Sale Agreement.
(B) Settlement of the Initial Payment
Purchaser on the date of the Bill of Sale shall pay Seller the
Initial Payment by wire transfer in immediately available funds to the
account specified by Seller.
(C) Interest Subsidy And Special Allowance Payments
On the date of the Bill of Sale, Seller shall be entitled to
all Interest Subsidy Payments and Special Allowance Payments on the
Loans subject to each Bill of Sale accruing up to but not including
April 1, 1996. The Purchaser and the Eligible Lender Trustee for the
benefit of Purchaser shall be entitled to all Special Allowance
Payments and Interest Subsidy Payments accruing from April 1, 1996.
(D) Special Programs
In consideration of the sale of the Eligible Loans under these
Master Sale Terms and each Sale Agreement, Purchaser agrees to cause
the Servicer to offer borrowers of Trust Student Loans all special
programs whether or not in existence as of the date of any Sale
Agreement generally offered to the obligors of comparable loans owned
by Sallie Mae subject to the terms and conditions of Section 3.12 of
the Servicing Agreement.
(E) Deferred Payment
Receipt by the Seller of amounts distributed to the Seller
pursuant to Section 2.8C(G) of the Administration Agreement (exclusive
of the amount of any such distribution attributable to the reduction
from time to time of the Specified Reserve Account Balance) shall
constitute payment to the Seller of the Deferred Payment portion of
the Purchase Price.
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SECTION 4. CONDITIONS PRECEDENT TO SALE AND PURCHASE
(A) Activities Prior to the Sale
Following the execution of a Sale Agreement, Seller shall
provide any assistance requested by Purchaser in determining that all
required documentation on the Loans is present and correct.
(B) Continued Servicing
Seller shall service, or cause to be serviced, all Loans as
required under the Higher Education Act until the date of the Bill of
Sale.
(C) Bill of Sale/Loan Transmittal Summary Form
Seller shall deliver to Purchaser:
(i) a Bill of Sale executed by an authorized officer of the
Seller and the Interim Eligible Lender Trustee for the benefit
of the Seller, covering Loans offered by the Seller and
accepted by Purchaser as set forth thereon, selling, assigning
and conveying to the Eligible Lender Trustee for the benefit
of the Purchaser and its assignees all right, title and
interest of the Seller and the Interim Eligible Lender Trustee
for the benefit of the Seller, including the insurance
interest of the Interim Eligible Lender Trustee for the
benefit of the Seller, in each of the Loans, and stating that
the representations and warranties made by Seller in Section 5
of these Master Sale Terms are true and correct on and as of
the date of the Bill of Sale; and
(ii) the Loan Transmittal Summary Form, attached to the Bill
of Sale, identifying each of the Eligible Loans which is the
subject of the Bill of Sale and setting forth the unpaid
Principal Balance of each such Loan.
(D) Endorsement
The Seller shall provide a blanket endorsement transferring
the entire interest of the Seller and the Interim Eligible Lender
Trustee for the benefit of Seller in the Loans to the Eligible Lender
Trustee for the benefit of the Purchaser with the form of endorsement
provided for in the Sale Agreement.
At the direction of and in such form as Purchaser may
designate, the Seller also agrees to individually endorse
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any Eligible Loan as Purchaser may request from time to time.
(E) Officer's Certificate
Seller shall furnish to Purchaser, with each Bill of Sale
provided in connection with each sale of Loans pursuant to these
Master Sale Terms, an Officer's Certificate, dated as of the date of
such Bill of Sale, in substantially the form of Attachment C.
(F) Loan Transfer Statement
Upon Purchaser's request, Seller shall deliver to Purchaser
one (1) or more Loan Transfer Statements (Department Form OE 1074 or
its equivalent) provided by Purchaser, executed by the Interim
Eligible Lender Trustee for the benefit of the Seller and dated the
date of the Bill of Sale. Seller agrees that Purchaser and the
Eligible Lender Trustee may use the Bill of Sale, including the Loan
Transmittal Summary Form attached to the Bill of Sale, in lieu of OE
Form 1074, as official notification to the Guarantor of the assignment
by the Interim Eligible Lender Trustee for the benefit of the Seller
to the Eligible Lender Trustee for the benefit of the Purchaser of the
Loans listed on the Bill of Sale:
(G) Power of Attorney
Seller and the Interim Eligible Lender Trustee hereby grant to
the Eligible Lender Trustee on behalf of the Purchaser an irrevocable
power of attorney, which power of attorney is coupled with an
interest, to individually endorse or cause to be individually endorsed
in the name of the Seller and the Interim Eligible Lender Trustee for
the benefit of the Seller any Eligible Loan to evidence the transfer
of such Eligible Loan to the Eligible Lender Trustee on behalf of the
Purchaser and to transfer or to cause to be transferred physical
possession of any Note from Sallie Mae or the Servicer to the Eligible
Lender Trustee or the Indenture Trustee or any other custodian on
behalf of either of them.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SELLER AND
ELIGIBLE LENDER TRUSTEE
(A) General
Seller represents and warrants to Purchaser that with respect to a
portfolio of Loans as of the date of each Sale Agreement and Bill of Sale;
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(i) The Interim Eligible Lender Trustee is an eligible
lender or other qualified holder of loans originated pursuant
to the Federal Family Education Loan Program established under
the Higher Education Act;
(ii) The Interim Eligible Lender Trustee and the Seller
are duly organized and existing under the laws of the
applicable jurisdiction;
(iii) The Interim Eligible Lender Trustee and the Seller
have all requisite power and authority to enter into and to
perform the terms of these Master Sale Terms and each Sale
Agreement; and
(iv) The Interim Eligible Lender Trustee and the Seller
will not, with respect to any Loan purchased under Sale
Agreements executed pursuant to these Master Sale Terms, agree
to release any Guarantor from any of its contractual
obligations as an insurer of such Loan or agree otherwise to
alter, amend or renegotiate any material term or condition
under which such Loan is insured, except as required by law or
rules and regulations issued pursuant to law, without the
express prior written consent of Purchaser.
(B) Particular
Seller represents and warrants to Purchaser as to the Loans
purchased by Purchaser under each Sale Agreement and each Bill of Sale
executed pursuant to these Master Sale Terms:
(i) The Interim Eligible Lender Trustee for the benefit
of the Seller has good title to, and is the sole owner of, the
Loans (together with the Special Allowance Payments and
Interest Subsidy Payments with respect to such Loans accrued
from and including April 1, 1996 through the date hereof),
free and clear of all security interests, liens, charges,
claims, offsets, defenses, counterclaims or encumbrances of
any nature and no right of rescission, offsets, defenses, or
counterclaims have been asserted or threatened with respect to
the Loans (together with the Special Allowance Payments and
Interest Subsidy Payments with respect to such Loans accrued
from and including April 1, 1996 through the date hereof);
(ii) The Loans are Eligible Loans and the description of
the Loans set forth in the Sale Agreement and the Loan
Transmittal Summary Form is true and correct;
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(iii) The Interim Eligible Lender Trustee and the Seller
are authorized to sell, assign, transfer and repurchased the
Loans; and the sale, assignment and transfer of such Loans is
or, in the case of a Loan repurchased by the Seller and or the
Interim Eligible Lender Trustee, will be made pursuant to and
consistent with the laws and regulations under which the
Seller and the Interim Eligible Lender Trustee operate, and
will not violate any decree, judgment or order of any court or
agency, or conflict with or result in a breach of any of the
terms, conditions or provisions of any agreement or instrument
to which the Interim Eligible Lender Trustee or the Seller is
a party or by which the Interim Eligible Lender Trustee or
Seller or its property is bound, or constitute a default (or
an event which could constitute a default with the passage of
time or notice or both) thereunder;
(iv) The Loans are each in full force and effect in
accordance with their terms and are legal, valid and binding
obligations of the respective Borrowers thereunder subject to
no defenses (except the defense of infancy);
(v) Each Loan has been duly made and serviced in
accordance with the provisions of the Federal Family Education
Loan Program established under the Higher Education Act, and
has been duly insured by a Guarantor; such guarantee is in
full force and effect and is freely transferable to the
Eligible Lender Trustee for the benefit of the Purchaser as an
incident to the purchase of each Loan; and all premiums due
and payable to such Guarantor shall have been paid in full as
of the date of the Bill of Sale;
(vi) Any payments on the Loans received by the Interim
Eligible Lender Trustee for the benefit of the Seller which
have been allocated to reduction of principal and interest on
such Loans have been allocated on a simple interest basis; the
information with respect to the Loans as of the Cutoff Date as
stated on the Loan Transmittal Summary Form is true and
correct;
(vii) Due diligence and reasonable care have been exercised
in the making, administering, servicing and collecting the
Loans and, with respect to any Loan for which repayment terms
have been established, all disclosures of information required
to be made pursuant to the Higher Education Act have been
made;
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(viii) All origination fees authorized to be collected
pursuant to Section 438 of the Higher Education Act have been
paid to the Secretary;
(ix) Each Loan has been duly made and serviced in
accordance with the provisions of all applicable federal and
state laws;
(x) No Loan is more than ninety (90) days Delinquent as
of the Cutoff Date and no default, breach, violation or event
permitting acceleration under the terms of any Loan has
arisen; and neither the Seller nor any predecessor holder of
any Loan has waived any of the foregoing other than as
permitted by the Basic Documents;
(xi) It is the intention of Seller, the Interim Eligible
Lender Trustee, the Eligible Lender Trustee, and the
Purchaser, and the Seller hereby warrants, that the transfer
and assignment herein contemplated constitute a valid sale of
the Loans from Seller and the Interim Eligible Lender Trustee
to the Eligible Lender Trustee for the benefit of Purchaser
and that the beneficial interest in and title to such Loans
not be part of the Seller's estate in the event of the
bankruptcy of the Seller or the appointment of a receiver with
respect to Seller;
(xii) There is only one original executed copy of the
promissory note evidencing each Loan; and
(xiii) No Borrower of any Loan as of the Cutoff Date is
noted in the related Loan File as being currently involved in
a bankruptcy proceeding.
(C) The Eligible Lender Trustee and the Purchaser represent and warrant that
as of the date of each Sale Agreement and each Bill of Sale:
(i) The Eligible Lender Trustee is a state banking
corporation duly organized and validly existing in good standing under
the laws of the state of Delaware and having an office located within
the state of Delaware; and it has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Sale Agreement;
(ii) The Eligible Lender Trustee has taken all corporate
action necessary to authorize the execution and delivery by it of
these Master Sale Terms and each Sale Agreement, and these Master Sale
Terms and each Sale Agreement have been and will be executed and
delivered by
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one of its officers who is duly authorized to execute and deliver the
Sale Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these
Master Sale Terms and each Sale Agreement, nor the consummation by it
of the transactions contemplated hereby or thereby nor compliance by
it with any of the terms or provisions hereof or thereof 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; and
(iv) The Eligible Lender Trustee is 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 these Master Sale Terms and each Sale Agreement and
the other Basic Documents, it has a lender identification number with
respect to the Trust Student Loans from the Department and has in
effect a Guarantee Agreement with each of the Guarantors with respect
to the Trust Student Loans.
SECTION 6. PURCHASE OF TRUST STUDENT LOANS; REIMBURSEMENT
Each party to this Agreement shall give notice to the other such
parties and to the Servicer, the Administrator and Sallie Mae promptly, in
writing, upon the discovery of any breach of Seller's representations and
warranties made pursuant to Section 5 hereof which has a materially adverse
effect on the interest of the Purchaser in any Trust Student Loan. In the
event of such a material breach which is not curable by reinstatement of the
applicable Guarantor's guarantee of such Trust Student Loan, Seller shall
repurchase any affected Trust Student Loan not later than 120 days following
the earlier of the date of discovery of such material breach and the date of
receipt of the Guarantor reject transmittal form with respect to such Trust
Student Loan. In the event of such a material breach which is curable by
reinstatement of the applicable Guarantor's guarantee of such Trust Student
Loan, unless the material breach shall have been cured within 360 days
following the earlier of the date of discovery of such material breach and the
date of receipt of the Guarantor reject transmittal form with respect to such
Trust Student Loan, the Seller shall purchase such Trust Student Loan not later
than the sixtieth day following the end of such 360-day period. The Seller
shall also remit as provided in Section 2.6 of the Administration Agreement on
the date of purchase of any Trust Student Loan pursuant to this Section 6 an
amount equal to all nonguaranteed interest amounts and forfeited
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Interest Subsidy Payments and Special Allowance Payments with respect to such
Trust Student Loan. In consideration of the purchase of any such Trust Student
Loan pursuant to this Section 6, the Seller shall remit the Purchase Amount in
the manner specified in Section 2.6 of the Administration Agreement.
In addition, if any breach of Section 5 hereof by the Seller does not
trigger such purchase obligation but does result in the refusal by a Guarantor
to guarantee all or a portion of the accrued interest (or any obligation of the
Purchaser to repay such interest to a Guarantor), or the loss (including any
obligation of the Purchaser to repay the Department) of Interest Subsidy
Payments and Special Allowance Payments, with respect to any Trust Student Loan
affected by such breach, then the Seller shall reimburse the Purchaser by
remitting an amount equal to the sum of all such nonguaranteed interest amounts
and such forfeited Interest Subsidy Payments or Special Allowance Payments in
the manner specified in Section 2.6 of the Administration Agreement not later
than (i) the last day of the next Collection Period ending not less than 60
days from the date of the Guarantor's refusal to guarantee all or a portion of
accrued interest or loss of Interest Subsidy Payments or Special Allowance
Payments, or (ii) in the case where the Seller reasonably believes such losses
are likely to be collected, not later than the last day of the next Collection
Period ending not less than 360 days from the date of the Guarantor's refusal
to guarantee all or a portion of accrued interest or loss of Interest Subsidy
Payments or Special Allowance Payments. At the time such payment is made, the
Seller shall not be required to reimburse the Purchaser for interest that is
then capitalized, however, such amounts shall be reimbursed if the borrower
subsequently defaults and such capitalized interest is not paid by the
Guarantor.
Anything in this Section 6 to the contrary notwithstanding, if as of
the last Business Day of any month the aggregate outstanding principal amount
of Trust Student Loans with respect to which claims have been filed with and
rejected by a Guarantor or with respect to which the Servicer determines that
claims cannot be filed pursuant to the Higher Education Act as a result of a
breach by the Seller or the Servicer, exceeds 1% of the Pool Balance, the
Seller or the Servicer shall purchase, within 30 days of a written request of
the Eligible Lender Trustee or the Indenture Trustee, such affected Trust
Student Loans in an aggregate principal amount such that after such purchase
the aggregate principal amount of such affected Trust Student Loans is less
than 1% of the Pool Balance. The Trust Student Loans to be purchased by the
Seller or the Servicer pursuant to the preceding sentence shall be based on the
date of claim rejection (or the date of notice referred to in the first
sentence of this Section 6), with Trust Student Loans with the earliest such
date to be purchased first.
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In lieu of repurchasing Trust Student Loans pursuant to this Section
6, the Seller may, at its option, substitute Eligible Loans or arrange for the
substitution of Eligible Loans which are substantially similar on an aggregate
basis as of the date of substitution to the Trust Student Loans for which they
are being substituted with respect to the following characteristics:
(1) status (i.e., in-school, grace, deferment,
forbearance or repayment),
(2) program type (i.e., Unsubsidized Stafford, Subsidized
Stafford, PLUS or SLS),
(3) school type,
(4) total return,
(5) principal balance, and
(6) remaining term to maturity.
In addition, each substituted Eligible Loan will comply, as of the
date of substitution, with all of the representations and warranties made
hereunder. In choosing Eligible Loans to be substituted pursuant to this
Section 6, the Seller shall make a reasonable determination that the Eligible
Loans to be substituted will not have a material adverse effect on the
Noteholders and the Certificateholders.
In the event that Seller elects to substitute Eligible Loans pursuant
to this Section 6, the Seller will remit to the Administrator the amount of any
shortfall between the Purchase Amount of the substituted Eligible Loans and the
Purchase Amount of the Trust Student Loans for which they are being
substituted. The Seller shall also remit to the Administrator an amount equal
to all nonguaranteed interest amounts and forfeited Interest Subsidy Payments
and Special Allowance Payments with respect to the Trust Student Loans in the
manner provided in Section 2.6 of the Administration Agreement. The sole
remedy of the Purchaser, the Eligible Lender Trustee, the Certificateholders
and the Noteholders with respect to a breach by the Seller pursuant to Section
5 hereof shall be to require the Seller to purchase Trust Student Loans, to
reimburse the Purchaser as provided above or to substitute Student Loans
pursuant to this Section. The Eligible Lender Trustee shall have no duty to
conduct any affirmative investigation as to the occurrence of any condition
requiring the purchase of any Trust Student Loan or the reimbursement for any
interest penalty pursuant to this Section 6.
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SECTION 7. OBLIGATION TO REMIT SUBSEQUENT PAYMENTS
AND FORWARD COMMUNICATIONS
(A) Any payment received by Seller with respect to amounts accrued
after the Date of the Bill of Sale for any Loan sold to Purchaser,
which payment is not reflected in the Loan Transmittal Summary Form,
shall be received by Seller in trust for the account of Purchaser and
the Seller hereby disclaims any title to or interest in any such
amounts. Within two (2) business days following the date of receipt,
Seller shall remit to Purchaser an amount equal to any such payments
along with a listing on a form provided by Purchaser identifying the
Loans with respect to which such payments were made, the amount of
each such payment and the date each such payment was received.
(B) Any written communication received at any time by Seller with
respect to any Loan subject to any Sale Agreement shall be transmitted
by Seller to Servicer within two (2) business days of receipt. Such
communications shall include, but not be limited to, letters, notices
of death or disability, notices of bankruptcy, forms requesting
deferment of repayment or loan cancellation, and like documents.
SECTION 8. CONTINUING OBLIGATION OF SELLER
Seller shall provide all reasonable assistance necessary for Purchaser
to resolve account problems raised by any Borrower, the Guarantor or the
Secretary provided such account problems are attributable to or are alleged to
be attributable to (a) an event occurring during the period Seller owned the
Loan, or (b) a payment made or alleged to have been made to Seller. Further,
the Seller agrees to execute any financing statements at the request of the
Purchaser in order to reflect the Purchaser's interest in the Loans.
SECTION 9. LIABILITY OF SELLER; INDEMNITIES
The Seller shall be liable in accordance herewith only to the extent
of the obligations specifically undertaken by the Seller under this Sale
Agreement.
(i) The Seller shall indemnify, defend and hold harmless the
Purchaser and the Eligible Lender Trustee in its individual capacity
and their officers, directors, employees and agents from and against
any taxes that may at any time be asserted against any such Person
with respect to the transactions contemplated herein and in the other
Basic Documents (except any such income taxes arising out of fees paid
to the Eligible Lender Trustee), including any sales, gross receipts,
general corporation, tangible and
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intangible personal property, privilege or license taxes and costs and
expenses in defending against the same.
(ii) The Seller shall indemnify, defend and hold harmless the
Purchaser and the Eligible Lender Trustee in its individual capacity
and their officers, directors, employees and agents of the Purchaser
and the Eligible Lender Trustee from and against any and all costs,
expenses, losses, claims, damages and liabilities arising out of, or
imposed upon such Person through, the Seller's willful misfeasance,
bad faith or gross negligence in the performance of its duties under
the Sale Agreement, or by reason of reckless disregard of its
obligations and duties under the Sale Agreement.
(iii) The Seller shall be liable as primary obligor for, and shall
indemnify, defend and hold harmless the Eligible Lender Trustee in its
individual capacity and its officers, directors, employees and agents
from and against, all costs, expenses, losses, claims, damages,
obligations and liabilities arising out of, incurred in connection
with or relating to the Sale Agreement, the other Basic Documents,
the acceptance or performance of the trusts and duties set forth
herein and in the Sale Agreement or the action or the inaction of the
Eligible Lender Trustee hereunder, except to the extent that such
cost, expense, loss, claim, damage, obligation or liability: (a)
shall be due to the willful misfeasance, bad faith or negligence
(except for errors in judgment) of the Eligible Lender Trustee, (b)
shall arise from any breach by the Eligible Lender Trustee of its
covenants in its individual capacity under any of the Basic Documents;
or (c) shall arise from the breach by the Eligible Lender Trustee of
any of its representations or warranties in its individual capacity
set forth in these Master Sale Terms or any Sale Agreement. In the
event of any claim, action or proceeding for which indemnity will be
sought pursuant to this paragraph, the Eligible Lender Trustee's
choice of legal counsel shall be subject to the approval of the
Seller, which approval shall not be unreasonably withheld.
Indemnification under this Section shall survive the resignation or
removal of the Eligible Lender Trustee and the termination of these Master Sale
Terms and shall include reasonable fees and expenses of counsel and expenses
of litigation. If the Seller shall have made any indemnity payments pursuant
to this Section and the Person to or for the benefit of whom such payments are
made thereafter shall collect any of such amounts from others, such Person
shall promptly repay such amounts to the Seller, without interest.
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SECTION 10. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF SELLER
Any Person (a) into which the Seller may be merged or consolidated,
(b) which may result from any merger or consolidation to which the Seller shall
be a party or (c) which may succeed to the properties and assets of the Seller
substantially as a whole, shall be the successor to the Seller without the
execution or filing of any document or any further act by any of the parties to
these Master Sale Terms; provided, however, that the Seller hereby covenants
that it will not consummate any of the foregoing transactions except upon
satisfaction of the following: (i) the surviving Person, if other than the
Seller, executes an agreement of assumption to perform every obligation of the
Seller under these Master Sale Terms, (ii) immediately after giving effect to
such transaction, no representation or warranty made pursuant to Section 5
herein shall have been breached, (iii) the surviving Person, if other than the
Seller, shall have delivered to the Eligible Lender Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
and that all conditions precedent, if any, provided for in these Master Sale
Terms relating to such transaction have been complied with, and that the Rating
Agency Condition shall have been satisfied with respect to such transaction,
(iv) if the Seller is not the surviving entity, such transaction will not
result in a material adverse Federal or state tax consequence to the Purchaser,
the Noteholders or the Certificateholders and (v) if the Seller is not the
surviving entity, the Seller shall have delivered to the Eligible Lender
Trustee an Opinion of Counsel either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements and amendments
thereto have been executed and filed that are necessary fully to preserve and
protect the interest of the Purchaser and the Eligible Lender Trustee,
respectively, in the Loans and reciting the details of such filings, or (B)
stating that, in the opinion of such counsel, no such action shall be necessary
to preserve and protect such interests.
SECTION 11. LIMITATION ON LIABILITY OF SELLER AND OTHERS
The Seller and any director or officer or employee or agent thereof
may rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any
matters arising hereunder (provided that such reliance shall not limit in any
way the Seller's obligations under Section 5 herein). The Seller shall not be
under any obligation to appear in, prosecute or defend any legal action that
shall not be incidental to its obligations under these Master Sale Terms or any
Sale Agreement, and that in its opinion may involve it in any expense or
liability. Except
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as provided herein, the repurchase (or substitution) and reimbursement
obligations of Seller will constitute the sole remedy available to Purchaser
for uncured breaches; provided, however, that the information with respect to
the Loans listed on the Bill of Sale may be adjusted in the ordinary course of
business subsequent to the date of the Bill of Sale and to the extent that the
aggregate Principal Balance listed on the Bill of Sale is less than the
aggregate Principal Balance stated on the Bill of Sale, Seller shall remit such
amount to the Eligible Lender Trustee for the benefit of the Purchaser. Such
reconciliation payment shall be made from time to time but no less frequently
than semi-annually.
SECTION 12. LIMITATION OF LIABILITY OF ELIGIBLE LENDER
TRUSTEE
Notwithstanding anything contained herein to the contrary, these
Master Sale Terms and any Sale Agreement have been signed by The Chase
Manhattan Bank (USA) not in its individual capacity but solely in its capacity
as Eligible Lender Trustee for the Purchaser and the Interim Eligible Lender
Trustee for the Seller, as the case may be, and in no event shall The Chase
Manhattan Bank (USA) in its individual capacity, have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Eligible Lender Trustee, the Interim Eligible Lender Trustee, the Purchaser or
of the Seller, respectively, under these Master Sale Terms or any Sale
Agreement or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Purchaser or the Seller, as the case may be.
SECTION 13. EXPENSES
Except as otherwise provided herein, each party to these Master Sale
Terms or any Sale Agreement shall pay its own expense incurred in connection
with the preparation, execution and delivery of these Master Sale Terms or any
Sale Agreement and the transactions contemplated herein or therein.
SECTION 14. SURVIVAL OF COVENANTS/SUPERSESSION
All covenants, agreements, representations and warranties made herein
and in or pursuant to any Sale Agreements executed pursuant to these Master
Sale Terms shall survive the consummation of the purchase of the Loans provided
for in each Sale Agreement. All covenants, agreements, representations and
warranties made or furnished pursuant hereto by or for the benefit of Seller
shall bind and inure to the benefit of any successors or assigns of Purchaser
and shall survive with respect to each Loan. Each Sale Agreement supersedes
all previous agreements and understandings between Purchaser and
18
<PAGE> 19
Seller with respect to the subject matter thereof. A Sale Agreement may be
changed, modified or discharged, and any rights or obligations hereunder may be
waived, only by a written instrument signed by a duly authorized officer of the
party against whom enforcement of any such waiver, change, modification or
discharge is sought. The waiver by Purchaser of any covenant, agreement,
representation or warranty required to be made or furnished by Seller or the
waiver by Purchaser of any provision herein contained or contained in any Sale
Agreement shall not be deemed to be a waiver of any breach of any other
covenant, agreement, representation, warranty or provision herein contained or
contained in any Sale Agreement, nor shall any waiver or any custom or practice
which may evolve between the parties in the administration of the terms hereof
or of any Sale Agreement, be construed to lessen the right of Purchaser to
insist upon the performance by Seller in strict accordance with said terms.
SECTION 15. COMMUNICATION AND NOTICE REQUIREMENTS
All communications, notices and approvals provided for hereunder shall
be in writing and mailed or delivered to Seller or Purchaser, as the case may
be, addressed as set forth in the Sale Agreement or at such other address as
either party may hereafter designate by notice to the other party. Notice
given in any such communication, mailed to Seller or Purchaser by appropriately
addressed registered mail, shall be deemed to have been given on the day
following the date of such mailing.
SECTION 16. FORM OF INSTRUMENTS
All instruments and documents delivered in connection with these
Master Sale Terms and any Sale Agreement, and all proceedings to be taken in
connection with these Master Sale Terms and any Sale Agreement and the
transactions contemplated herein and therein, shall be in a form as set forth
in the attachments hereto, and Purchaser shall have received copies of such
documents as it or its counsel shall reasonably request in connection
therewith. Any instrument or document which is substantially in the same form
as an Attachment hereto or a recital herein will be deemed to be satisfactory
as to form.
SECTION 17. AMENDMENT
These Master Sale Terms and any Sale Agreement may be amended by the
parties thereto without the consent of the related Noteholders or
Certificateholders for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of such Master Sale Terms and
Sale Agreements or of modifying in any manner the rights of such Noteholders or
Certificateholders; provided that such action will not, in the opinion of
counsel satisfactory to the related
19
<PAGE> 20
Eligible Lender Trustees, materially and adversely affect the interest of any
such Noteholder or Certificateholder.
In addition, these Master Sale Terms and any Sale Agreement may also
be amended from time to time by the Seller, the Interim Eligible Lender
Trustee, the Eligible Lender Trustee and the Purchaser, with the consent of the
Noteholders of Notes evidencing a majority of the Outstanding Amount of the
Notes and the consent of the Certificateholders of Certificates evidencing a
majority of the Certificate Balance, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of these
Master Sale Terms or any Sale Agreement or of modifying in any manner the
rights of the Noteholders or the Certificateholders; provided, however, that no
such amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the time of, collections of payments with respect to Loans
or distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholders or (b) reduce the aforesaid percentage of
the Outstanding Amount of the Notes and the Certificate Balance of
Certificates, the Noteholders or the Certificateholders of which are required
to consent to any such amendment, without the consent of all outstanding
Noteholders and Certificateholders.
Promptly after the execution of any such amendment or consent (or, in
the case of the Rating Agencies, five Business Days prior thereto), the
Eligible Lender Trustee shall furnish written notification of the substance of
such amendment or consent to the Indenture Trustee, each Certificateholder, and
each of the Rating Agencies.
It shall not be necessary for the consent of Certificateholders or
Noteholders 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.
Prior to the execution of any amendment to these Master Sale Terms,
the Eligible Lender Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that execution of such amendment is authorized or
permitted by this Sale Agreement and the Opinion of Counsel referred to in
Section 7.1 I((i) of the Administration 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 18. NONPETITION COVENANTS
Notwithstanding any prior termination of these Master Sale Terms,
Seller and the Interim Eligible Lender Trustee shall not acquiesce, petition or
otherwise invoke or cause Purchaser to
20
<PAGE> 21
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against Purchaser under any Federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of
Purchaser or any substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Purchaser.
Notwithstanding any prior termination of these Master Sale Terms, the
Eligible Lender Trustee and the Purchaser shall not acquiesce, petition or
otherwise invoke or cause Seller to invoke the process of commencing or
sustaining a case against the Seller under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of Seller or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Purchaser.
SECTION 19. ASSIGNMENT
Seller and the Interim Eligible Lender Trustee each hereby assigns its
entire right, title and interest as purchaser and as the Interim Eligible
Lender Trustee under the Purchase Agreement Master Securitization Terms Number
1000 and any Purchase Agreement thereunder to Purchaser as of the date hereof
and acknowledges that the Purchaser and the Eligible Lender Trustee on behalf
of the Purchaser will assign the same, together with the right, title and
interest of the Purchaser and the Eligible Lender Trustee hereunder, to the
Indenture Trustee under the Indenture.
SECTION 20. GOVERNING LAW
These Master Sale Terms and any Sale Agreements shall be governed by
and construed in accordance with the laws of the State of New York.
21
<PAGE> 22
<TABLE>
<S> <C>
SLM STUDENT LOAN TRUST 1996-3 SLM FUNDING CORPORATION
(Purchaser) (Seller)
by The Chase Manhattan Bank (USA)
not in its individual capacity
but solely as Eligible Lender By: /s/ Denise B. McGlone
Trustee ---------------------------
Name:
--------------------------
By: /s/ John W. Mack Title:
------------------------- -------------------------
Name: John W. Mack
Title: Second Vice President
THE CHASE MANHATTAN BANK THE CHASE MANHATTAN BANK (USA)
(USA) (Not in its individual (Not in its individual capacity
capacity but solely as Eligible but solely as Interim Eligible
Lender Trustee) Lender Trustee)
By: /s/ John W. Mack By: /s/ John W. Mack
------------------------- --------------------------
Name: John W. Mack Name: John W. Mack
Title: Second Vice President Title: Second Vice President
</TABLE>
22
<PAGE> 23
ATTACHMENT A
SALE AGREEMENT
DATED AS OF JULY 9, 1996
SALE AGREEMENT NUMBER 1
Each of the Chase Manhattan Bank (USA) as Interim Eligible Lender
Trustee (the "Interim Eligible Lender Trustee") for the benefit of SLM Funding
Corporation (the "Seller") and the Seller hereby offer for sale to the Eligible
Lender Trustee on behalf of SLM Student Loan Trust 1996-3 ("Purchaser") the
entire right, title and interest of the Seller and the Interim Eligible Lender
Trustee in the Loans, together with the Interest Subsidy Payments and Special
Allowance Payments with respect to such Loans accrued from and including April
1, 1996 through the date hereof, as described in the Bill of Sale and Loan
Transmittal Summary Form incorporated herein and, to the extent indicated
below, the Eligible Lender Trustee on behalf of the Purchaser accepts the
Seller's and the Interim Eligible Lender Trustee's offer. In order to qualify
as Eligible Loans, no payment of principal or interest shall be more than
ninety (90) days Delinquent as of the Cutoff Date which date shall be June 17,
1996.
TERMS, CONDITIONS AND COVENANTS
In consideration of the Purchase Price, each of the Seller and the
Interim Eligible Lender Trustee for the benefit of the Seller hereby sells to
the Eligible Lender Trustee for the benefit of the Purchaser the entire right,
title and interest of the Seller and the Interim Eligible Lender Trustee in the
Loans, together with the Interest Subsidy Payments and Special Allowance
Payments with respect to such Loans accrued from and including April 1, 1996
through the date hereof, accepted for purchase, subject to all the terms and
conditions of the Sale Agreement Master Securitization Terms Number 1000
("Master Sale Terms") and amendments, each incorporated herein by reference,
among Seller, Interim Eligible Lender Trustee, Purchaser, and the Eligible
Lender Trustee. The Initial Payment of the Loans shall equal $1,499,226,399.80
(equal to $1,502,983,159.80 (representing the offering price of the Securities
less underwriters' commissions) less $3,756,760 (representing the Reserve
Account Initial Deposit).
This document shall constitute a Sale Agreement as referred to in the
Master Sale Terms and, except as modified herein, each term used herein shall
have the same meaning as in the Master Sale Terms. All references in the
Master Sale Terms to Loans or Eligible Loans shall be deemed to refer to the
Loans governed by this Sale Agreement. Seller hereby makes, as of the date
hereof, all the representations and warranties contained in the Master Sale
Terms and makes such representations and warranties with respect to the Loans
governed by this Sale Agreement.
1
<PAGE> 24
Each of the Seller and the Interim Eligible Lender Trustee for the
benefit of the Seller authorizes the Eligible Lender Trustee for the benefit of
the Purchaser to use a copy of the Bill of Sale, including the Loan Transmittal
Summary Form attached to the Bill of Sale (in lieu of OE Form 1074) as official
notification to the applicable Guarantors of assignment to the Eligible Lender
Trustee for the benefit of the Purchaser of the Loans on the date of purchase.
The parties hereto intend that the transfer of Loans, together with
the Interest Subsidy Payments and Special Allowance Payments with respect to
such Loans accrued from and including April 1, 1996 through the date hereof, as
described in the Bill of Sale and Loan Transmittal Summary Form be, and be
construed as, a valid sale of such Loans, together with the Interest Subsidy
Payments and Special Allowance Payments with respect to such Loans accrued from
and including April 1, 1996 through the date hereof. However, in the event
that notwithstanding the intentions of the parties, such transfer is deemed to
be a transfer for security, then each of the Interim Eligible lender Trustee
and the Seller hereby grants to the Eligible Lender Trustee on behalf of the
Purchaser a first priority security interest in and to all Loans, together with
the Interest Subsidy Payments and Special Allowance Payments with respect to
such Loans accrued from and including April 1, 1996 through the date hereof, as
described in the Bill of Sale and Loan Transmittal Summary Form to secure a
loan in an amount equal to the Purchase Price of such Loans.
<TABLE>
<S> <C>
SLM FUNDING CORPORATION SLM STUDENT LOAN TRUST 1996-3
- ----------------------- -----------------------------
(Seller) (Purchaser)
by the Chase Manhattan Bank (USA)
not in its individual capacity but
By: /s/ Denise B. McGlone solely as Eligible Lender Trustee
-------------------------
Name:
-------------------------
Title: By: /s/ John W. Mack
------------------------ -----------------------------
Name: John W. Mack
Title: Second Vice President
THE CHASE MANHATTAN BANK THE CHASE MANHATTAN BANK
- ------------------------ ------------------------
(USA)(not in its individual (USA)(not in its individual
- ----- ----
capacity but solely as Interim capacity but solely as Eligible
Eligible Lender Trustee) Lender Trustee)
By: /s/ John W. Mack By: /s/ John W. Mack
------------------------ -------------------------
Name: John W. Mack Name: John W. Mack
Title: Second Vice President Title: Second Vice President
</TABLE>
2
<PAGE> 25
SALE AGREEMENT NUMBER 1
BLANKET ENDORSEMENT DATED JULY 9, 1996
SLM Funding Corporation ("Seller") and the Chase Manhattan Bank (USA)
as Interim Eligible Lender Trustee for the benefit of the Seller, by execution
of this instrument, hereby endorses the attached promissory note which is one
(1) of the promissory notes ("the Notes") described in the Bill of Sale
executed by the Seller and the Interim Eligible Lender Trustee for the benefit
of the Seller in favor of Chase Manhattan Bank (USA) as Eligible Lender
Trustee on behalf of SLM Student Loan Trust 1996-3 (the "Purchaser"). This
endorsement is in blank, unrestricted form and without recourse except as
provided in Section 6 of the Master Sale Terms referred to in the Sale
Agreement among Seller, Purchaser, Interim Eligible Lender Trustee, and the
Eligible Lender Trustee which covers this promissory note.
This endorsement may be effected by attaching either this instrument or
a facsimile hereof to each or any of the Notes.
Notwithstanding the foregoing, the Interim Eligible Lender Trustee for
the benefit of the Seller agrees to individually endorse each Note in the form
provided by Purchaser as Purchaser may from time to time require or if such
individual endorsement is required by the Guarantor of the Note.
THE SALE AND PURCHASE OF THE LOANS SHALL BE SUBJECT TO THE TERMS, CONDITIONS
AND COVENANTS, INCLUDING THE BLANKET ENDORSEMENT, AS SET FORTH IN THE SALE
AGREEMENT MASTER LOAN SECURITIZATION TERMS 1000. BY EXECUTION HEREOF, THE
SELLER ACKNOWLEDGES THAT THE SELLER HAS READ, UNDERSTANDS AND AGREES TO BE
BOUND BY ALL TERMS, CONDITIONS AND COVENANTS OF THE SALE AGREEMENT (" SALE
AGREEMENT"). THE SALE AND PURCHASE SHALL BE CONSUMMATED UPON PURCHASER'S
PAYMENT TO SELLER OF THE INITIAL PAYMENT AS DEFINED IN THE MASTER SALE TERMS
AND, UNLESS OTHERWISE AGREED BY SELLER AND PURCHASER, SHALL BE EFFECTIVE AS OF
THE DATE OF THE BILL OF SALE.
<TABLE>
<S> <C>
===================================
SELLER PURCHASER
================================== ===============================
The Chase Manhattan Bank (USA) not The Chase Manhattan Bank (USA),
in its individual capacity but solely not in its individual capacity
as Interim Eligible Lender Trustee for but solely as Eligible Lender
the benefit of SLM Trustee on behalf of SLM
Funding Corporation Student Loan Trust 1996-3
Lender Code: 833 253
By: /s/ John W. Mack By: /s/ John W. Mack
----------------------------- ---------------------------
(Signature of Authorized (Signature of Authorized
Officer) Signatory for Purchaser)
Name: John W. Mack Name: John W. Mack
Title: Second Vice President Title: Second Vice President
Date of Purchase: July 9, 1996
===================================
</TABLE>
NOTE: Boxed areas on this form are to be completed by Purchaser.
1
<PAGE> 26
BILL OF SALE DATED JULY 9, 1996
The undersigned SLM Funding Corporation ("Seller") and the Chase
Manhattan Bank (USA) as Interim Eligible Lender Trustee for the benefit of the
Seller under the Interim Trustee Agreement dated as of July 1, 1996 ("Interim
Eligible Lender Trustee"), for value received and pursuant to the terms and
conditions of Sale Agreement Number 1 ("Sale Agreement") among Seller, the
Interim Eligible Lender Trustee , SLM Student Loan Trust 1996-3 ("Purchaser")
and Chase Manhattan Bank (USA) as the Eligible Lender Trustee, do hereby sell,
assign and convey to the Eligible Lender Trustee on behalf of Purchaser and its
assignees all right, title and interest of Seller and the Interim Eligible
Lender Trustee, including the insurance interest of Seller and the Interim
Eligible Lender Trustee under the Federal Family Education Loan Program (20
U.S.C. 1071 et seq.), in the Loans identified herein, together with the
Interest Subsidy Payments and Special Allowance Payments with respect to such
Loans accrued from and including April 1, 1996 through the date hereof, which
the Eligible Lender Trustee on behalf of Purchaser has accepted for purchase.
The portfolio accepted for purchase by the Eligible Lender Trustee on behalf of
Purchaser and the effective date of sale and purchase are described below and
the individual Accounts are listed on the Schedule A attached hereto.
Seller hereby makes the representations and warranties set forth in
Section 5 of the Sale Agreement Master Securitization Terms Number 1000
incorporated by reference in the Sale Agreement. Seller and the Interim
Eligible Lender Trustee authorize the Eligible Lender Trustee on behalf of
Purchaser to use a copy of this document (in lieu of OE Form 1074) as official
notification to the Guarantor(s) of assignment to the Eligible Lender Trustee
on behalf of Purchaser of the Loans on the date of purchase.
LISTING OF LOANS
<TABLE>
<CAPTION>
OFFERED BY ACCEPTED BY ELIGIBLE
SELLER LENDER TRUSTEE
NUMBER OF PRINCIPAL NUMBER OF PRINCIPAL
LOAN TYPE LOANS* BALANCE** LOANS* BALANCE**
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
SUBSIDIZED STAFFORD
- ---------- --------
Interim 140,259 439,273,772 140,259 439,273,772
Repayment 251,248 592,625,824 251,248 592,625,824
UNSUBSIDIZED STAFFORD
- ---------------------
Deferred 53,295 188,383,757 53,295 188,383,757
Repayment 12,834 34,302,550 12,834 34,302,550
PLUS/SLS
- --------
Deferred 6,243 27,950,609 6,243 27,950,609
Non-Deferred 57,166 220,167,566 57,166 220,167,566
CONSOLI-
- --------
DATION 0 0 0 0
- ------
TOTAL 521,045 1,502,704,078 521,045 1,502,704,078
========== ============= ======== =============
</TABLE>
ADDITIONAL LOAN CRITERIA
- ------------------------
Not in claims status, not previously rejected
Not in litigation
Last disbursement is greater than 120 days from cutoff date
Loan is not swap-pending
1
<PAGE> 27
GUARANTOR(S):
American Student Assistance Guarantor
Arizona Education Loan Program
California Student Aid Commission
Connecticut Student Loan Foundation
Florida Office of Student Financial Assistance
Great Lakes Higher Education Corporation
Illinois Student Assistance Commission
Iowa College Aid Commission
Michigan Higher Education Assistance Authority
Missouri Coordinating Board for Higher Education
New Jersey Higher Education Assistance Authority
N.Y. State Higher Education Services Corporation
Northstar Guarantee Inc.
Northwest Education Loan Association
Ohio Student Aid Commission
Oklahoma State Regents for Higher Education
Oregon State Scholarship Commission
Pennsylvania Higher Education Assistance Agency
Tennessee Student Assistance Corporation
Texas Guaranteed Student Loan Corporation
United Student Aid Funds, Inc.
Virginia State Education Assistance Authority
*Based upon Seller's estimated calculations, which may be adjusted upward or
downward based upon Purchaser's reconciliation.
**Includes interest to be capitalized.
<TABLE>
<S> <C>
==================================
PURCHASER
SELLER ==============================
================================ The Chase Manhattan Bank (USA)
The Chase Manhattan Bank (USA) not in its individual capacity
not in its individual capacity but solely as Interim but solely as Eligible Lender
Eligible Lender Trustee on behalf of SLM
Trustee on behalf of SLM Student Loan Trust 1996-3
Funding Corporation By: /s/ John W. Mack
---------------------------
Lender Code: (Signature of Authorized
--------------- Signatory for Purchaser)
By: /s/ John W. Mack Name: John W. Mack
------------------------------
(Signature of Authorized Officer) Title: Second Vice President
Name: John W. Mack Date of Purchase (with respect
to the Loans, other than the
Title: Second Vice President rights to the Interest Subsidy
Payments and Special Allowance
SLM FUNDING CORPORATION Payments): July 9, 1996.
Date of Purchase (with respect
By: /s/ Denise B. McGlone to the rights to the Interest
------------------------------ Subsidy Payments and Special
(Signature of Authorized Officer) Allowance Payments): April 1,
1996.
Name: ==================================
----------------------------
Title:
---------------------------
</TABLE>
2
<PAGE> 28
NOTE: Boxed areas are for completion by Purchaser
3
<PAGE> 29
OFFICER'S CERTIFICATE
I, ______________________________, of ________________________ (the
"Seller"), hereby certify to SLM Student Loan Trust 1996-3 that:
1. The person(s) named below are at the date hereof the duly elected,
qualified and acting officers of the Seller holding the offices indicated and
the signature following each name is the genuine signature of the person named:
<TABLE>
<CAPTION>
TITLE NAME SIGNATURE
----- ---- ---------
<S> <C> <C>
---------------------- ---------------------- ----------------------
---------------------- ---------------------- ----------------------
---------------------- ---------------------- ----------------------
---------------------- ---------------------- ----------------------
</TABLE>
2. Any of the above-named person(s) is duly authorized to sign
agreements providing for the sale of student loans to the SLM Student Loan
Trust 1996-3.
WITNESS my hand this day ___ of _________________, 199__.
By:
---------------------------------------------
(Not an officer listed above)
Name:
------------------------------------------
Title:
-----------------------------------------
1
<PAGE> 1
EXHIBIT 99.3
===================================================================
ADMINISTRATION AGREEMENT
among
SALLIE MAE SERVICING CORPORATION,
SLM FUNDING CORPORATION,
STUDENT LOAN MARKETING ASSOCIATION,
as Administrator
SLM STUDENT LOAN TRUST 1996-3,
THE CHASE MANHATTAN BANK (USA),
not in its individual capacity
but solely as Eligible Lender Trustee
and
BANKERS TRUST COMPANY
not in its individual capacity
but solely as Indenture Trustee
Dated as of July 9, 1996
=================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
-------
<S> <C>
ARTICLE I
Section 1.1 Definitions and Usage. . . . . . . . . . . . . 1
ARTICLE II
Section 2.1 Duties with Respect to the Indenture . . . . . 2
Section 2.2 Duties with Respect to the Issuer. . . . . . . 4
Section 2.3 Establishment of Trust Accounts. . . . . . . . 5
Section 2.4 Collections. . . . . . . . . . . . . . . . . . 7
Section 2.5 Application of Collections . . . . . . . . . . 8
Section 2.6 Additional Deposits. . . . . . . . . . . . . . 8
Section 2.7 Distributions. . . . . . . . . . . . . . . . . 9
Section 2.8 Reserve Account. . . . . . . . . . . . . . . . 12
Section 2.9 Statements to Certificateholders and
Noteholders . . . . . . . . . . . . . . . . . 14
Section 2.10 Non-Ministerial Matters. . . . . . . . . . . . 15
Section 2.11 Exceptions . . . . . . . . . . . . . . . . . . 16
Section 2.12 Compensation . . . . . . . . . . . . . . . . . 16
Section 2.13 Servicer and Administrator Expenses. . . . . . 16
ARTICLE III
Section 3.1 Administrator's Certificate; Servicer's Report 17
Section 3.2 Annual Statement as to Compliance; Notice
of Default; Financial Statement . . . . . . . 18
Section 3.3 Annual Independent Certified Public
Accountants' Reports. . . . . . . . . . . . . 19
ARTICLE IV
Section 4.1 Representations of Administrator . . . . . . . 19
Section 4.2 Liability of Administrator; Indemnities. . . . 21
Section 4.3 Merger or Consolidation of, or Assumption of
the Obligations of, Administrator . . . . . . 23
Section 4.4 Limitation on Liability of Seller,
Administrator and Others. . . . . . . . . . . 24
Section 4.5 Administrator May Own Certificates or Notes. . 25
Section 4.6 Student Loan Marketing Association Not to
Resign as Administrator . . . . . . . . . . . 25
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE V
Section 5.1 Administrator Default. . . . . . . . . . . . . 25
Section 5.2 Appointment of Successor . . . . . . . . . . . 27
Section 5.3 Notification to Noteholders and
Certificateholders. . . . . . . . . . . . . . 28
Section 5.4 Waiver of Past Defaults. . . . . . . . . . . . 28
ARTICLE VI
Section 6.1 Termination. . . . . . . . . . . . . . . . . . 29
ARTICLE VII
Section 7.1 Protection of Interests in Trust . . . . . . . 30
ARTICLE VIII
Section 8.1 Independence of the Administrator. . . . . . . 33
Section 8.2 No Joint Venture . . . . . . . . . . . . . . . 33
Section 8.3 Other Activities of Administrator. . . . . . . 34
Section 8.4 Powers of Attorney . . . . . . . . . . . . . . 34
Section 8.5 Amendment. . . . . . . . . . . . . . . . . . . 34
Section 8.6 Assignment . . . . . . . . . . . . . . . . . . 35
Section 8.7 Limitations on Rights of Others. . . . . . . . 35
Section 8.8 Assignment to Indenture Trustee. . . . . . . . 36
Section 8.9 Nonpetition Covenants. . . . . . . . . . . . . 36
Section 8.10 Limitation of Liability of Eligible
Lender Trustee and Indenture Trustee. . . . . 37
Section 8.11 Governing Law. . . . . . . . . . . . . . . . . 37
Section 8.12 Headings . . . . . . . . . . . . . . . . . . . 37
Section 8.13 Counterparts . . . . . . . . . . . . . . . . . 37
Section 8.14 Severability . . . . . . . . . . . . . . . . . 37
Appendix A
</TABLE>
ii
<PAGE> 4
ADMINISTRATION AGREEMENT
SLM Student Loan Trust 1996-3, (the "Issuer"), the Student Loan
Marketing Association (the "Administrator"), The Chase Manhattan Bank (USA),
not in its individual capacity but solely as Trustee (the "Eligible Lender
Trustee"), Sallie Mae Servicing Corporation (the "Servicer"), SLM Funding
Corporation (the "Seller") and Bankers Trust Company, a New York banking
corporation, not in its individual capacity but solely as Indenture Trustee
(the "Indenture Trustee") agree as follows:
WHEREAS, the Issuer is issuing the Notes pursuant to the Indenture
dated as of July 1, 1996 (the "Indenture"), between the Issuer and the
Indenture Trustee and the Certificates pursuant to the Trust Agreement dated as
of July 1, 1996 between the Depositor and the Eligible Lender Trustee;
WHEREAS, the Issuer has entered into certain of the Basic Documents in
connection with the issuance of the Notes and the Certificates, including the
Sale Agreement and the Servicing Agreement;
WHEREAS, pursuant to the Basic Documents, the Issuer and the Eligible
Lender Trustee are required to perform certain duties in connection with (a)
the Notes and the Collateral therefor pledged pursuant to the Indenture and (b)
the Certificates;
WHEREAS, the Issuer, the Eligible Lender Trustee and the Indenture
Trustee desire to have the Administrator and the Servicer perform certain of
the duties of the Issuer and the Eligible Lender Trustee referred to in the
preceding clause, and to provide such additional services consistent with the
terms of this Agreement and the Basic Documents as the Issuer and the Eligible
Lender Trustee may from time to time request;
WHEREAS, the Administrator and the Servicer have the capacity to
provide the services required hereby and are willing to perform such services
for the Issuer and the Eligible Lender Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties 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.
<PAGE> 5
ARTICLE II
SECTION 2.1 Duties with Respect to the Indenture. The Administrator agrees to
consult with the Eligible Lender Trustee regarding the duties of the Issuer
under the Indenture and the Depository Agreements. The Administrator shall
monitor the performance of the Issuer and shall advise the Eligible Lender
Trustee when action is necessary to comply with the Issuer's duties under the
Indenture and the Depository Agreements. The Administrator shall prepare for
execution by the Issuer or shall cause the preparation by other appropriate
Persons of all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuer to prepare, file or deliver
pursuant to the Indenture and the Depository Agreements. In furtherance of the
foregoing, the Administrator shall take the actions with respect to the
following matters that it is the duty of the Issuer or the Indenture Trustee to
take pursuant to the Indenture (references being to Sections of the Indenture):
a. preparing or obtaining the documents and instruments required
for authentication of the Notes and delivering the same to the
Indenture Trustee (Section 2.2);
b. preparing, obtaining or filing the instruments, opinions and
certificates and other documents required for the release of
collateral (Section 2.9);
c. obtaining and preserving the Issuer's qualification to do
business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Collateral and
each other instrument and agreement included in the Indenture
Trust Estate (Section 3.4);
d. preparing all supplements, amendments, financing statements,
continuation statements, instruments of further assurance and
other instruments, in accordance with Section 3.5 of the
Indenture, necessary to protect the Indenture Trust Estate
(Section 3.5);
e. the delivery by the Issuer of the Opinion of Counsel on the
Closing Date and the annual delivery of Opinions of Counsel,
in accordance with Section 3.6 of the Indenture, as to the
Indenture Trust Estate, and the annual delivery of the
Officers' Certificate of the Issuer and certain other
statements, in accordance with Section 3.9 of the Indenture,
as to compliance with the Indenture (Sections 3.6 and 3.9);
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f. in the event of a Servicer Default, the taking of all
reasonable steps available to enforce the Issuer's rights
under the Basic Documents in respect of such Servicer Default
(Section 3.7(d));
g. the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations
under the Indenture (Section 3.10);
h. monitoring the Issuer's obligations as to the satisfaction and
discharge of the Indenture and preparation of an Officers'
Certificate of the Issuer and obtaining of the Opinion of
Counsel and the Independent Certificate relating thereto
(Section 4.1);
i. sale of the Indenture Trust Estate in a commercially
reasonable manner if an Event of Default has occurred and is
continuing (Section 5.4) or an Insolvency Event with respect
to the Seller has occurred and is continuing (Section 6.5(b));
j. preparing and, after execution by the Issuer, filing with the
Commission, any applicable State agencies and the Indenture
Trustee of documents required to be filed on a periodic basis
with, and summaries thereof as may be required by rules and
regulations prescribed by, the Commission and any applicable
State agencies (Section 7.3);
k. the opening of one or more accounts in the Issuer's name, the
preparation of Issuer Orders, Officers' Certificates of the
Issuer and Opinions of Counsel and all other actions necessary
with respect to investment and reinvestment of funds in the
Trust Accounts (Sections 8.2 and 8.3);
l. the preparation of an Issuer Request and Officers' Certificate
of the Issuer and the obtaining of an Opinion of Counsel and
Independent Certificates, if necessary, for the release of the
Indenture Trust Estate (Sections 8.4 and 8.5);
m. the preparation of Issuer Orders and the obtaining of Opinions
of Counsel with respect to the execution of supplemental
indentures (Sections 9.1, 9.2 and 9.3);
n. the preparation of or obtaining of the documents and
instruments required for the execution and authentication of
new Notes conforming to any supplemental indenture and the
delivery of the same to the Eligible Lender Trustee and the
Indenture Trustee, respectively (Section 9.6);
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o. the preparation of all Officers' Certificates of the Issuer,
Opinions of Counsel and Independent Certificates with respect
to any requests by the Issuer to the Indenture Trustee to take
any action under the Indenture (Section 11.1(a);
p. the preparation and delivery of Officers' Certificates of the
Issuer and the obtaining of Independent Certificates, if
necessary, for the release of property from the lien of the
Indenture (Section 11.1(b));
q. the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment
and notice provisions (Sections 11.6); and
r. the recording of the Indenture, if applicable (Section 11.15).
SECTION 2.2 Duties with Respect to the Issuer.
A. In addition to the duties of the Administrator set forth above and
in the other Basic Documents, the Administrator shall perform such calculations
and shall prepare for execution by the Issuer or the Eligible Lender Trustee or
shall cause the preparation by other appropriate Persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be the
duty of the Issuer or the Eligible Lender Trustee to prepare, file or deliver
pursuant to the Basic Documents, and at the request of the Eligible Lender
Trustee shall take all appropriate action that it is the duty of the Issuer to
take pursuant to the Basic Documents. Subject to Section 8.1, and in
accordance with the directions of the Eligible Lender Trustee, the
Administrator shall administer, perform or supervise the performance of such
other activities in connection with the Collateral (including the Basic
Documents) as are not covered by any of the foregoing provisions and as are
expressly requested by the Eligible Lender Trustee and are reasonably within
the capability of the Administrator.
B. The Administrator shall be responsible for performance of the
duties of the Eligible Lender Trustee set forth in Section 5.4(a), (b), (c) and
(d) of the Trust Agreement with respect to, among other things, accounting and
reports to Certificateholders; provided, however, that the Eligible Lender
Trustee shall retain responsibility for the distribution of the Schedule K-1's
necessary to enable each Certificateholder to prepare its Federal and state
income tax returns.
C. The Administrator shall perform the duties of the Administrator
specified in Section 10.2 of the Trust Agreement required to be performed in
connection with the resignation or
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removal of the Eligible Lender Trustee, and any other duties expressly required
to be performed by the Administrator under the Trust Agreement and the other
Basic Documents.
D. In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that the
terms of any such transactions or dealings shall be, in the Administrator's
opinion, no less favorable to the Issuer than would be available from
unaffiliated parties.
SECTION 2.3 Establishment of Trust Accounts.
A.1. The Administrator, for the benefit of the Issuer, shall
establish and maintain in the name of the Indenture Trustee an Eligible Deposit
Account (the "Collection Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Issuer. The
Collection Account will initially be established as a segregated trust account
in the name of the Indenture Trustee with the corporate trust department of
Bankers Trust Company.
2. The Administrator, for the benefit of the Issuer, shall establish
and maintain in the name of the Indenture Trustee an Eligible Deposit Account
(the "Reserve Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Issuer. The Reserve
Account will initially be established as a segregated trust account in the name
of the Indenture Trustee with the corporate trust department of Bankers Trust
Company.
B. Funds on deposit in the Collection Account and the Reserve Account
(collectively, the "Trust Accounts") shall be invested by the Indenture Trustee
(or any custodian or designated agent with respect to any amounts on deposit in
such accounts) in Eligible Investments pursuant to written instructions by the
Administrator; provided, however, it is understood and agreed that the
Indenture Trustee shall not be liable for the selection of, or any loss arising
from such investment in, Eligible Investments. All such Eligible Investments
shall be held by (or by any custodian on behalf of) the Indenture Trustee for
the benefit of the Issuer; provided that on the Business Day preceding each
Distribution Date all interest and other investment income (net of losses and
investment expenses) on funds on deposit therein shall be deposited into the
Collection Account and shall be deemed to constitute a portion of the Available
Funds for such Distribution Date. Other than as described in the following
proviso or as otherwise permitted by the Rating Agencies, funds on deposit in
the Trust Accounts shall be invested in Eligible Investments that will mature
so that such funds will be available at the close of business on the Business
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Day preceding the following Monthly Servicing Payment Date (to the extent
necessary to pay the Primary Servicing Fee payable on such date) or
Distribution Date; provided, however, that funds on deposit in Trust Accounts
may be invested in Eligible Investments of the Indenture Trustee which may
mature so that such funds will be available on such Monthly Servicing Payment
Date or Distribution Date. Funds deposited in a Trust Account on a Business
Day which immediately precedes a Monthly Servicing Payment Date or Distribution
Date upon the maturity of any Eligible Investments are not required to be
invested overnight.
C.1. The Seller and the Issuer have pledged to the Indenture Trustee
all of their respective right, title and interest in all funds on deposit from
time to time in the Trust Accounts and in all proceeds thereof (including all
income thereon) and all such funds, investments, proceeds and income shall be
part of the Trust Estate. Subject to the Administrator's power to instruct the
Indenture Trustee pursuant to paragraph B above and paragraph C.3 below, the
Trust Accounts shall be under the sole dominion and control of the Indenture
Trustee for the benefit of the Noteholders and the Issuer. If, at any time,
any of the Trust Accounts ceases to be an Eligible Deposit Account, the
Indenture Trustee (or the Administrator on its behalf) agrees, by its
acceptance hereto, that it shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which each Rating Agency may
consent) establish a new Trust Account as an Eligible Deposit Account and shall
transfer any cash and/or any investments to such new Trust Account. In
connection with the foregoing, the Administrator agrees that, in the event that
any of the Trust Accounts are not accounts with the Indenture Trustee, the
Administrator shall notify the Indenture Trustee in writing promptly upon any
of such Trust Accounts ceasing to be an Eligible Deposit Account.
2. With respect to the Trust Account Property, the Indenture Trustee
agrees, by its acceptance hereof, that:
(A) any Trust Account Property that is held in deposit accounts
shall be held solely in Eligible Deposit Accounts, subject to
the last sentence of Section 2.3C.1; and, subject to Section
2.3B, each such Eligible Deposit Account shall be subject to
the exclusive custody and control of the Indenture Trustee,
and the Indenture Trustee shall have sole signature authority
with respect thereto;
(B) any Trust Account Property that constitutes Physical Property
shall be Delivered to the Indenture Trustee in accordance with
paragraph (a) of the definition of "Delivery" and shall be
held, pending maturity or disposition, solely by the Indenture
Trustee or a financial intermediary (as such term is defined
in
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Section 8-313(4) of the UCC) acting solely for the Indenture
Trustee;
(C) any Trust Account Property that is a book-entry security held
through the Federal Reserve System pursuant to Federal
book-entry regulations shall be Delivered in accordance with
paragraph (b) of the definition of "Delivery" and shall be
maintained by the Indenture Trustee, pending maturity or
disposition, through continuous book-entry registration of
such Trust Account Property as described in such paragraph;
and
(D) any Trust Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed
by clause (C) above shall be Delivered to the Indenture
Trustee in accordance with paragraph (c) of the definition of
"Delivery" and shall be maintained by the Indenture Trustee,
pending maturity or disposition, through continued
registration of the Indenture Trustee's (or its nominee's)
ownership of such security.
3. The Administrator shall have the power, revocable for cause or
upon the occurrence and during the continuance of an Administrator Default by
the Indenture Trustee or by the Eligible Lender Trustee with the consent of the
Indenture Trustee, to instruct the Indenture Trustee to make withdrawals and
payments from the Trust Accounts for the purpose of permitting the Servicer,
the Administrator or the Eligible Lender Trustee to carry out its respective
duties hereunder or permitting the Indenture Trustee to carry out its duties
under the Indenture.
SECTION 2.4 Collections. The Servicer shall remit within two Business Days
of receipt thereof to the Collection Account all payments by or on behalf of
the Obligors with respect to the Trust Student Loans (other than Purchased
Student Loans), and all Liquidation Proceeds, both as collected during the
Collection Period, and the Eligible Lender Trustee shall remit within two
Business Days of receipt thereof to the Collection Account any Interest Subsidy
Payments and Special Allowance Payments received by it with respect to the
Trust Student Loans during the Collection Period. Notwithstanding the
foregoing, for so long as (i) the senior unsecured obligations of the
Administrator (or any affiliate of the Administrator which guarantees the
obligations of the Administrator hereunder) shall have been assigned a
long-term rating of not less than "AA-" (or equivalent rating) or a short-term
rating of not less than "A-1" (or equivalent rating) by each of the Rating
Agencies or the remitting by the Servicer and the Eligible Lender Trustee of
the amounts referred to in this Section 2.4 to the Administrator will not
result in a downgrading or withdrawal of any of the then current ratings of
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any of the Securities by any of the Rating Agencies and (ii) no Administrator
Default shall have occurred and be continuing, the Servicer and the Eligible
Lender Trustee shall remit such collections within two Business Days of receipt
thereof to the Administrator, and the Administrator need not deposit such
collections into the Collection Account until one Business Day immediately
prior to the next following Monthly Servicing Payment Date (in an amount up to
the Servicing Fee then due) or Distribution Date together with interest on such
amounts (less Servicing Fees paid during such period) calculated on a daily
basis from the first day of the month following receipt thereof by the
Administrator to the day such amounts are remitted by the Administrator to the
Collection Account at a rate equal to the Federal Funds Rate less .20% ;
provided, however, that, if the Administrator (and each such Affiliate which
guarantees the obligations of the Administrator) is rated below AA- and A-1+ by
Standard & Poor's, the Administrator shall deposit all such collections into
the Collection Account at least as frequently as the next following Monthly
Servicing Payment Date, unless less frequent deposits will not result in a
downgrading or withdrawal of Standard & Poor's then current ratings on the
Notes or the Certificates. In the event that any of the foregoing conditions
for ceasing daily remittances shall no longer be satisfied, then the
Administrator shall deposit all collections held by it into the Collection
Account within two Business Days thereof.
SECTION 2.5 Application of Collections.
A. With respect to each Trust Student Loan, all collections
(including all Guarantee Payments) with respect thereto for each Collection
Period shall be applied to interest and principal on such Trust Student Loan by
the Servicer in accordance with its customary practice.
B. All Liquidation Proceeds shall be applied to the related Trust
Student Loan.
SECTION 2.6 Additional Deposits.
A. The Servicer shall deposit or cause to be deposited in the
Collection Account the aggregate Purchase Amount with respect to Purchased
Student Loans and all other amounts to be paid by the Servicer under Section
3.5 of the Servicing Agreement when such amounts are due, and the Seller shall
deposit or cause to be deposited in the Collection Account the aggregate
Purchase Amount with respect to Purchased Student Loans and all other amounts
to be paid by the Seller under Section 6 of the Sale Agreement when such
amounts are due.
B. Notwithstanding anything to the contrary set forth in paragraph
(A) above, if daily deposits to the Collection Account are not required
pursuant to Section 2.4, the Seller and the
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Servicer shall pay the amounts referred to in paragraph (A) above that would
otherwise be deposited into the Collection Account to the Administrator. The
Administrator shall not be required to deposit such amounts into the Collection
Account until the Business Day preceding each Distribution Date; provided,
however, that, on or before the Business Day preceding each Monthly Servicing
Payment Date that is not a Distribution Date, the Administrator shall deposit
into the Collection Account that portion of such amounts received by it that is
equal to the sum of the Servicing Fee payable on such date and provided,
further that the Administrator shall also deposit into the Collection Account
on such date interest on such amounts calculated on a daily basis from the
first day of the month following receipt thereof by the Administrator to the
day such amounts (less Servicing Fees paid during such period) are remitted by
the Administrator to the Collection Account at a rate equal to the Federal
Funds Rate less .20%.
SECTION 2.7 Distributions.
A. On each Determination Date, the Administrator shall calculate all
amounts required to determine the amounts to be deposited in the Collection
Account from the Reserve Account and the amounts to be distributed therefrom on
the related Distribution Date. On the 5th Business Day preceding each Monthly
Servicing Payment Date that is not a Distribution Date, the Administrator shall
calculate all amounts required to determine the amounts to be deposited in the
Collection Account from the Reserve Account and the amounts to be distributed
therefrom on the related Monthly Servicing Payment Date.
B. The Administrator shall instruct the Indenture Trustee in writing
no later than the second business day preceding each Monthly Servicing Payment
Date that is not a Distribution Date (based on the information contained in the
Administrator's Certificate and the related Servicer's Report delivered
pursuant to Section 3.1 (A) and (B)) to distribute to the Servicer, by 1:00
p.m. (New York time) on such Monthly Servicing Payment Date, from and to the
extent of the Available Funds on deposit in the Collection Account the Primary
Servicing Fee due with respect to the preceding calendar month, and the
Indenture Trustee shall comply with such instructions.
C. The Administrator shall instruct the Indenture Trustee in writing
no later than the second business day preceding each Distribution Date (based
on the information contained in the Administrator's Certificate and the related
Servicer's Report delivered pursuant to Section 3.1 (A) and (C)) to make the
following deposits and distributions to the Persons or to the account specified
below by 1:00 p.m. (New York time) on such Distribution Date, to the extent of
the amount of Available Funds
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in the Collection Account, in the following order of priority, and the
Indenture Trustee shall comply with such instructions:
1. to the Servicer, the Primary Servicing Fee due on such
Distribution Date;
2. to the Administrator, from the amount of Available Funds
remaining after the application of clause 1, the
Administration Fee due on such Distribution Date and all
unpaid Administration Fees from prior Collection Periods;
3. to the Noteholders, from the amount of Available Funds
remaining after the application of clauses 1 and 2, the
Noteholders' Interest Distribution Amount, ratably, without
preference or priority of any kind, according to the amounts
payable on the Notes in respect of Noteholders' Interest
Distribution Amount;
4. to the Eligible Lender Trustee on behalf of the
Certificateholders, from the amount of Available Funds
remaining after the application of clauses 1 through 3, the
Certificateholders' Return Distribution Amount, for
distribution by the Eligible Lender Trustee pursuant to the
Trust Agreement, ratably, without preference or priority of
any kind, according to the amounts payable in respect of
Certificateholders' Return Distribution Amount;
5. to the Class A-1 Noteholders, from the amount of Available
Funds remaining after the application of clauses 1 through 4,
the Noteholders' Principal Distribution Amount, ratably,
without preference or priority of any kind, according to the
amounts payable on the Class A-1 Notes for principal;
6. on each Distribution Date on and after which the Class A-1
Notes have been paid in full, to the Class A-2 Noteholders,
from the amount of Available Funds remaining after the
application of clauses 1 through 5, the Noteholders' Principal
Distribution Amount, ratably, without preference or priority
of any kind, according to the amounts payable on the Class A-2
Notes for principal;
7. on each Distribution Date on and after the date on which the
Notes have been paid in full, to the Eligible Lender Trustee
on behalf of the Certificateholders, from the amount of
Available Funds remaining after the application of clauses 1
through 6, the Certificate Balance Distribution Amount for
distribution by the Eligible Lender Trustee pursuant to the
Trust
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Agreement, ratably, without preference or priority of any
kind, according to the amounts payable in respect of the
Certificate Balance;
8. to the Reserve Account, from the amount of Available Funds
remaining after the application of clauses 1 through 7, the
amount, if any, necessary to reinstate the balance of the
Reserve Account up to the Specified Reserve Account Balance;
9. to the Servicer, from the amount of Available Funds remaining
after the application of clauses 1 through 8, the aggregate
unpaid amount of the Carryover Servicing Fee, if any;
10. to the Noteholders, from the amount of Available Funds
remaining after the application of clauses 1 through 9, the
aggregate unpaid amount of Note Interest Carryover, if any,
ratably, without preference or priority of any kind, according
to the amounts due and payable on the Notes in respect of Note
Interest Carryover;
11. to the Eligible Lender Trustee on behalf of the
Certificateholders, from the amount of Available Funds
remaining after the application of clauses 1 through 10, the
aggregate unpaid amount of the Certificate Return Carryover,
if any, for distribution by the Eligible Lender Trustee
pursuant to the Trust Agreement, ratably, without preference
or priority of any kind, according to the amounts payable in
respect of Certificate Return Carryover; and
12. to the Reserve Account, the amount of Available Funds
remaining after the application of clauses 1 through 11.
Notwithstanding the foregoing, if on any Distribution Date following
all distributions to be made on such Distribution Date the Outstanding Amount
of the Notes would be in excess of the sum of the outstanding principal balance
of the Trust Student Loans and any accrued but unpaid interest on the Trust
Student Loans as of the last day of the related Collection Period plus the
balance of the Reserve Account on such Distribution Date following such
distributions, or if an Insolvency Event with respect to the Seller or an Event
of Default has occurred and is continuing, amounts on deposit in the Collection
Account and the Reserve Account shall be applied on such Distribution Date to
the payment of the Noteholders' Distribution Amount before any amounts are
applied to the payment of the Certificateholders' Distribution Amount.
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SECTION 2.8 Reserve Account.
A. On the Closing Date, the Issuer shall deposit the Reserve
Account Initial Deposit into the Reserve Account.
B.1. In the event that the Primary Servicing Fee for any Monthly
Servicing Payment Date or Distribution Date exceeds the amount
distributed to the Servicer pursuant to Sections 2.7B and
2.7C.1 on such Monthly Servicing Payment Date or Distribution
Date, the Administrator shall instruct the Indenture Trustee
in writing to withdraw from the Reserve Account on such
Monthly Servicing Payment Date or Distribution Date an amount
equal to such excess, to the extent of funds available
therein, and to distribute such amount to the Servicer;
provided, however, that, except as provided in Sections 2.8B
and 2.8C, amounts on deposit in the Reserve Account will not
be available to cover any unpaid Carryover Servicing Fees to
the Servicer.
2. In the event that the Administration Fee for any Distribution
Date exceeds the amount distributed to the Administrator
pursuant to Section 2.7C.2 on such Distribution Date, the
Administrator shall instruct the Indenture Trustee in writing
to withdraw from the Reserve Account on each Distribution Date
an amount equal to such excess, to the extent of funds
available therein after giving effect to paragraph B.1 above,
and to distribute such amount to the Administrator.
3. In the event that the Noteholders' Interest Distribution
Amount and the Certificateholders' Return Distribution Amount
for a Distribution Date exceeds the amount distributed to
Noteholders and to the Certificateholders pursuant to Section
2.7C.3 and C.4 on such Distribution Date, the Administrator
shall instruct the Indenture Trustee in writing to withdraw
from the Reserve Account on such Distribution Date an amount
equal to such excess, to the extent of funds available therein
after giving effect to paragraphs B.1 and B.2 above, and to
distribute such amount to the Noteholders and to the
Certificateholders entitled thereto, in the same order and
priority as is set forth in Sections 2.7C.3 and C.4 subject to
the last paragraph of Section 2.7C.
4. In the event that the Noteholders' Principal Distribution
Amount on the Final Distribution Date with respect to each
Class of Notes exceeds the amount distributed to such
Noteholders pursuant to Section 2.7C.5 and 2.7C.6 on such
Distribution Date, the Administrator shall instruct the
Indenture Trustee in
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writing to withdraw from the Reserve Account on such final
Distribution Date an amount equal to such excess, to the
extent of funds available therein after giving effect to
paragraphs B.1, B.2 and B.3 above, and to distribute such
amount to the Noteholders entitled thereto, in the same order
and priority as is set forth in Sections 2.7C.5 and 2.7C.6.
5. In the event that the Certificateholders' Balance Distribution
Amount on the final Distribution Date with respect to the
Certificates exceeds the amount distributed to the
Certificateholders pursuant to Section 2.7C.7 on such
Distribution Date, the Administrator shall instruct the
Indenture Trustee in writing to withdraw from the Reserve
Account on such Distribution Date an amount equal to such
excess, to the extent of funds available therein after giving
effect to paragraphs B.1 through B.4 above, and to distribute
such amount to the Eligible Lender Trustee on behalf of the
Certificateholders, for distribution to the Certificateholders
entitled thereto.
C. After giving effect to Section 2.8B, if the amount on deposit in
the Reserve Account on any Distribution Date (after giving effect to all
deposits or withdrawals therefrom on such Distribution Date other than pursuant
to this paragraph C) is greater than the Specified Reserve Account Balance for
such Distribution Date, the Administrator shall instruct the Indenture Trustee
in writing (A) to pay to the Noteholders out of such excess in the Reserve
Account an amount equal to the Note Principal Shortfall, if any; (B) to pay to
the Certificateholders out of such excess in the Reserve Account an amount
equal to the Certificate Balance Shortfall, if any; (C) to pay to the Servicer
out of such excess in the Reserve Account an amount equal to the amount
described in Section 2.7C.9 for such Distribution Date (to the extent not
otherwise paid to the Servicer on such Distribution Date); (D) to pay to the
Noteholders out of such excess an amount equal to the amount described in
Section 2.7C.10 for such Distribution Date (to the extent not otherwise paid to
the Noteholders on such Distribution Date); (E) to pay to the
Certificateholders out of such excess an amount equal to the amount described
in Section 2.7C.11 for such Distribution Date (to the extent not otherwise paid
to the Certificateholders on such Distribution Date); (F) in the event the
Trust Student Loans are not sold pursuant to Section 6.1A, to pay as an
accelerated payment of principal balance of the Notes or Certificate Balance,
as the case may be, first to the Noteholders in the same order and priority as
is set forth in Sections 2.7C.5 and C.6 until the principal amount of the Notes
is paid in full and then to the Certificateholders until the Certificate
Balance is reduced to zero, provided that the amount of such distribution shall
not exceed the outstanding principal balance of the Notes or the
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Certificate Balance, as applicable, after giving effect to all other payments
in respect of principal of Notes and Certificate Balance to be made on such
date; and (G) to distribute the remaining amount of such excess to the Seller.
Amounts properly distributed to the Seller pursuant to this paragraph C shall
be deemed released from the Trust Estate and the security interest therein
granted to the Indenture Trustee, and the Seller shall in no event thereafter
be required to refund any such distributed amounts.
D. Following the payment in full of the aggregate outstanding
principal balance of the Notes and the Certificate Balance and of all other
amounts owing or to be distributed hereunder or under the Indenture or the
Trust Agreement to Noteholders, Certificateholders, the Servicer or the
Administrator and the termination of the Trust (including, to the extent owing,
any Carryover Servicing Fees, Note Interest Carryover and Certificate Return
Carryover), any amount remaining on deposit in the Reserve Account shall be
distributed to the Seller. The Seller shall in no event be required to refund
any amounts properly distributed pursuant to this Section 2.8D.
SECTION 2.9 Statements to Certificateholders and Noteholders. On each
Determination Date preceding a Distribution Date, the Administrator shall
provide to the Indenture Trustee and the Eligible Lender Trustee (with a copy
to the Rating Agencies) for the Indenture Trustee to forward on such succeeding
Distribution Date to each Noteholder of record and for the Eligible Lender
Trustee to forward on such succeeding Distribution Date to each
Certificateholder of record a statement, setting forth at least the following
information as to the Notes and the Certificates to the extent applicable:
a. the amount of such distribution allocable to principal of each
class of the Notes;
b. the amount of the distribution allocable to interest on each
class of the Notes;
c. the amount of the distribution allocable to the Certificate
Balance;
d. the amount of the distribution allocable to return on the
Certificates;
e. the amount, if any, of the distribution allocable to any Note
Interest Carryover and any Certificate Return Carryover,
together with any remaining outstanding amount of each
thereof;
f. the Pool Balance as of the close of business on the last day
of the preceding Collection Period;
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g. the aggregate outstanding principal balance of the Notes, the
Note Pool Factor, the Certificate Balance and the Certificate
Pool Factor as of such Distribution Date, after giving effect
to payments allocated to principal reported under clauses (a)
and (c) above;
h. the Note Rate for the next period for any class of Notes and
the Certificate Rate for any class of Certificates;
i. the amount of the Servicing Fee and any Carryover Servicing
Fee paid to the Servicer on such Distribution Date and on the
two preceding Monthly Servicing Payment Dates, and the amount,
if any, of the Carryover Servicing Fee remaining unpaid after
giving effect to any such payments;
j. the amount of the Administration Fee paid to the Administrator
on such Distribution Date;
k. the amount of the aggregate Realized Losses, if any, for the
related Collection Period and the balance of Trust Student
Loans that are delinquent in each delinquency period as of
the end of such Collection Period;
l. the amount of any Note Interest Shortfall, Note Principal
Shortfall, Certificate Return Shortfall and Certificate
Balance Shortfall, if any, in each case as applicable to each
class of Securities, and the change in such amounts from the
preceding statement;
m. the aggregate Purchase Amounts for Trust Student Loans, if
any, that were repurchased by the Seller or purchased by the
Servicer from the Issuer in such Collection Period; and
n. the balance of the Reserve Account on such Distribution Date,
after giving effect to changes therein on such Distribution
Date.
Each amount set forth pursuant to clauses (a), (b), (c), (d), (e), (i), (j) and
(l) above shall be expressed as a dollar amount per $1,000 of original
principal balance of a Certificate or Note, as applicable. A copy of the
statements referred to above may be obtained by any Certificate Owner or Note
Owner by a written request to the Eligible Lender Trustee or the Indenture
Trustee, respectively, addressed to the respective Corporate Trust Office.
SECTION 2.10 Non-Ministerial Matters. With respect to matters that in the
reasonable judgment of the Administrator are
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nonministerial, the Administrator shall not take any action unless within a
reasonable time before the taking of such action, the Administrator shall have
notified the Eligible Lender Trustee of the proposed action and the Eligible
Lender Trustee shall not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial
matters" shall include:
a. the amendment of or any supplement to the Indenture;
b. the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or
against the Issuer (other than in connection with the
collection of the Trust Student Loans);
c. the amendment, change or modification of the Basic Documents;
d. the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of Successor Administrators or
Successor Servicers, or the consent to the assignment by the
Note Registrar, Paying Agent or Indenture Trustee of its
obligations under the Indenture; and
e. the removal of the Indenture Trustee.
SECTION 2.11 Exceptions. Notwithstanding anything to the contrary in this
Agreement, except as expressly provided herein or in the other Basic Documents,
the Administrator shall not be obligated to, and shall not, (1) make any
payments to the Noteholders under the Basic Documents, (2) sell the Indenture
Trust Estate pursuant to Section 5.4 of the Indenture, (3) take any other
action that the Issuer directs the Administrator not to take on its behalf, (4)
in connection with its duties hereunder assume any indemnification obligation
of any other Person or (5) service the Trust Student Loans.
SECTION 2.12 Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to $20,000 for
each Collection Period payable on the related Distribution Date (the
"Administration Fees") payable in arrears which shall be solely an obligation
of the Issuer.
SECTION 2.13 Servicer and Administrator Expenses. Each of the Servicer and
the Administrator shall be severally required to pay all expenses incurred by
it in connection with its activities hereunder, including fees and
disbursements of independent
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accountants, taxes imposed on the Servicer or the Administrator, as the case
may be, and expenses incurred in connection with distributions and reports to
the Administrator or to the Certificateholders and the Noteholders, as the case
may be.
ARTICLE III
SECTION 3.1 Administrator's Certificate; Servicer's Report.
A. On or before the tenth day of each month (or, if any such day is
not a Business Day, on the next succeeding Business Day), the Servicer shall
deliver to the Administrator a Servicer's Report with respect to the preceding
month containing all information necessary for the Administrator to receive in
connection with the preparation of the Administrator's Officers' Certificate
and the Administrator's Certificate covering such calendar month referred to in
paragraph B below. On or before the tenth day (or, if any such day is not a
Business Day, on the next succeeding Business Day), preceding each Distribution
Date the Servicer shall deliver to the Administrator a Servicer's Report with
respect to the preceding Collection Period containing all information necessary
for the Administrator to receive in connection with the preparation of the
Administrator's Officers' Certificate and the Administrator's Certificate
covering such calendar month referred to in paragraph C below.
B. On the 2nd Business Day prior to each Monthly Servicing Payment
Date that is not a Distribution Date, the Administrator shall deliver to the
Eligible Lender Trustee and the Indenture Trustee, an Officer's Certificate of
the Administrator containing all information necessary to pay the Servicer the
Servicing Fee due on such Monthly Servicing Payment Date pursuant to Section
2.7B.
C. On each Determination Date prior to a Distribution Date, the
Administrator shall deliver to the Eligible Lender Trustee and the Indenture
Trustee, with a copy to the Rating Agencies, an Administrator's Certificate
containing all information necessary to make the distributions pursuant to
Sections 2.7 and 2.8, if applicable, for the Collection Period preceding the
date of such Administrator's Certificate.
D. Prior to each Determination Date, the Administrator shall
determine the Note Rates and the Certificate Rate that will be applicable to
the Distribution Date following such Determination Date, in compliance with its
obligation to prepare and deliver an Administrator's Certificate on such
Determination Date pursuant to this Section 3.1. In connection therewith, the
Administrator shall calculate the T-Bill Rate in accordance with the definition
thereof and shall also determine the Student Loan Rate with respect to such
Distribution Date.
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E. The Administrator shall furnish to the Issuer from time to time
such information regarding the Collateral as the Issuer shall reasonably
request.
SECTION 3.2 Annual Statement as to Compliance; Notice of Default; Financial
Statements.
A. Each of the Servicer and the Administrator shall deliver to the
Eligible Lender Trustee and the Indenture Trustee on or before 120 days after
the end of the fiscal year of the Servicer and the Administrator, an Officer's
Certificate of the Servicer or the Administrator, as the case may be, dated as
of December 31 of the preceding year, stating that (i) a review of the
activities of the Servicer or the Administrator, as the case may be, during the
preceding 12-month period (or, in the case of the first such certificate,
during the period from the Closing Date to December 31, 1996) and of its
performance under this Agreement has been made under such officers' supervision
and (ii) to the best of such officers' knowledge, based on such review, the
Servicer or the Administrator, as the case may be, has fulfilled its
obligations in all material respects under this Agreement and, with respect to
the Servicer, the Servicing Agreement throughout such year or, if there has
been a material default in the fulfillment of any such obligation, specifying
each such material default known to such officers and the nature and status
thereof. The Indenture Trustee shall send a copy of each such Officers'
Certificate and each report referred to in Section 3.1 to the Rating Agencies.
A copy of each such Officers' Certificate and each report referred to in
Section 3.1 may be obtained by any Certificateholder, Certificate Owner,
Noteholder or Note Owner by a request in writing to the Eligible Lender Trustee
addressed to its Corporate Trust Office, together with evidence satisfactory to
the Eligible Lender Trustee that such Person is one of the foregoing parties.
Upon the telephone request of the Eligible Lender Trustee, the Indenture
Trustee will promptly furnish the Eligible Lender Trustee a list of Noteholders
as of the date specified by the Eligible Lender Trustee.
B. The Servicer shall deliver to the Eligible Lender Trustee, the
Indenture Trustee and the Rating Agencies, promptly after having obtained
knowledge thereof, but in no event later than five Business Days thereafter,
written notice in an Officers' Certificate of the Servicer of any event which
with the giving of notice or lapse of time, or both, would become a Servicer
Default under Section 5.1 of the Servicing Agreement.
C. The Administrator shall deliver to the Eligible Lender Trustee,
the Indenture Trustee and the Rating Agencies, promptly after having obtained
knowledge thereof, but in no event later than five Business Days thereafter,
written notice in an Officers' Certificate of the Administrator of any event
which
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with the giving of notice or lapse of time, or both, would become an
Administrator Default under Sections 5.1A or B or would cause the Student Loan
Marketing Association to fail to meet the requirement of clause (i) of Section
2.4.
D. The Administrator shall provide to the Eligible Lender Trustee,
the Indenture Trustee and the Rating Agencies (a) as soon as possible and in no
event more than 120 days after the end of each fiscal year of the Administrator
audited financials as at the end of and for such year and (b) as soon as
possible and in no event more than 45 days after the end of each quarterly
accounting period of the Administrator unaudited financials as at the end of
and for such period.
SECTION 3.3 Annual Independent Certified Public Accountants' Reports. Each of
the Servicer and the Administrator shall cause a firm of independent certified
public accountants, which may also render other services to the Servicer or
the Administrator, as the case may be, to deliver to the Eligible Lender
Trustee, the Indenture Trustee and the Rating Agencies on or before March 31 of
each year, a report addressed to the Servicer or the Administrator, as the case
may be, the Eligible Lender Trustee and the Indenture Trustee, to the effect
that such firm has examined certain documents and records relating to the
servicing of the Trust Student Loans, or the administration of the Trust
Student Loans and of the Trust, as the case may be, during the preceding
calendar year (or, in the case of the first such report, during the period from
the Closing Date to December 31, 1996) and that, on the basis of the accounting
and auditing procedures considered appropriate under the circumstances, such
firm is of the opinion that such servicing or administration, respectively, was
conducted in compliance with those terms of this Agreement and in the case of
the Servicer, the Servicing Agreement, including any applicable statutory
provisions incorporated therein and such additional terms and statutes as may
be specified from time to time by the Administrator, except for (i) such
exceptions as such firm shall believe to be immaterial and (ii) such other
exceptions as shall be set forth in such report.
Such report will also indicate that the firm is independent of the
Servicer or the Administrator, as the case may be, within the meaning of the
Code of Professional Ethics of the American Institute of Certified Public
Accountants.
ARTICLE IV
SECTION 4.1 Representations of Administrator. The Student Loan Marketing
Association, as Administrator, makes the following representations on which
the Issuer is deemed to have relied in acquiring the Trust Student Loans. The
representations speak as of the execution and delivery of this Agreement and as
of the
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Closing Date and shall survive the sale of the Trust Student Loans to the
Eligible Lender Trustee on behalf of the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
A. Organization and Good Standing. The Administrator is duly
organized and validly existing under the laws of the United States of America,
with the 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. Power and Authority. The Administrator has the corporate power
and authority to execute and deliver this Agreement and to carry out its terms,
and the execution, delivery and performance of this Agreement have been duly
authorized by the Administrator by all necessary corporate action.
C. Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of the Administrator 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. No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof or thereof do not
conflict with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time or both) a default under,
the charter or by-laws of the Administrator, or any indenture, agreement or
other instrument to which the Administrator is a party or by which it shall be
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 knowledge of the Administrator, any order, rule or regulation
applicable to the Administrator of any court or of any Federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Administrator or its properties.
E. No Proceedings. There are no proceedings or investigations
pending against the Administrator or, to its best knowledge, threatened against
the Administrator, before any court, regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Administrator
or its properties: (i) asserting the invalidity of this Agreement or any of
the other Basic Documents, the Notes or the Certificates, (ii) seeking to
prevent the issuance of the Notes or the Certificates or the consummation of
any of the transactions contemplated by this Agreement or any of the other
Basic Documents, (iii) seeking any determination or ruling that
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could reasonably be expected to have a material and adverse effect on the
performance by the Administrator of its obligations under, or the validity or
enforceability of, this Agreement, any of the other Basic Documents, the Notes
or the Certificates or (iv) seeking to affect adversely the Federal or state
income tax attributes of the Issuer, the Notes or the Certificates.
F. All Consents. All authorizations, consents, orders or approvals
of or registrations or declarations with any court, regulatory body,
administrative agency or other government instrumentality required to be
obtained, effected or given by the Administrator in connection with the
execution and delivery by the Administrator of this Agreement and the
performance by the Administrator of the transactions contemplated by this
Agreement have been duly obtained, effected or given and are in full force and
effect.
SECTION 4.2 Liability of Administrator; Indemnities. The Administrator shall
be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Administrator under this Agreement.
The Administrator shall indemnify, defend and hold harmless the
Issuer, the Certificateholders and the Noteholders and any of the officers,
directors, employees and agents of the Issuer from and against any and all
costs, expenses, losses, claims, damages and liabilities to the extent that
such cost, expense, loss, claim, damage or liability arose out of, or was
imposed upon any such Person through, the gross negligence, willful misfeasance
or bad faith of the Administrator in the performance of its duties under this
Agreement or by reason of reckless disregard of its obligations and duties
hereunder or thereunder.
The Administrator shall indemnify the Indenture Trustee in its
individual capacity and any of its officers, directors, employees and agents
against any and all loss, liability or expense (including attorneys' fees)
incurred by it in connection with the performance of its duties under the
Indenture and the other Basic Documents. The Indenture Trustee shall notify
the Issuer and the Administrator promptly of any claim for which it may seek
indemnity. Failure by the Indenture Trustee to so notify the Issuer and the
Administrator shall not relieve the Issuer or the Administrator of its
obligations hereunder and under the other Basic Documents. The Administrator
shall defend the claim and the Administrator shall not be liable for the legal
fees and expenses of the Indenture Trustee after it has assumed such defense;
provided, however, that, in the event that there may be a conflict between the
positions of the Indenture Trustee and the Administrator in conducting the
defense of such claim, the Indenture Trustee shall be entitled to separate
counsel the fees and expenses of which shall be paid by the Administrator on
behalf of the Issuer. Neither the Issuer nor the Administrator
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need reimburse any expense or indemnify against any loss, liability or expense
incurred by the Indenture Trustee through the Indenture Trustee's own willful
misconduct, negligence or bad faith.
The Administrator shall indemnify each of the Eligible Lender Trustee
and the Interim Eligible Lender Trustee in its individual capacity and any of
its officers, directors, employees and agents against any and all loss,
liability, claims, damages, costs, penalties, taxes (excluding taxes payable by
it on any compensation received by it for its services as trustee) or expense
(including attorneys' fees) incurred by it in connection with the performance
of its duties under the Interim Trust Agreement, the Trust Agreement and the
other Basic Documents.
Without limiting the generality of the foregoing, the Administrator
shall indemnify the Eligible Lender Trustee in its individual capacity and any
of its officers, directors, employees and agents against any and all liability
relating to or resulting from any of the following:
(i) any claim that the Trust Student Loans (or any guarantee with
respect thereto) are delinquent, uncollectable, uninsured, illegal,
invalid or unenforceable;
(ii) any claim that the Trust Student Loans have not been made,
administered, serviced or collected in accordance with applicable
federal and state laws or the requirements of any Guarantor; or
(iii) any claim that any original note or other document evidencing or
relating to the Trust Student Loans has been lost, misplaced or
destroyed.
The Eligible Lender Trustee shall notify the Administrator promptly of
any claim for which it may seek indemnity. Failure by the Eligible Lender
Trustee to so notify the Administrator shall not relieve the Administrator of
its obligations hereunder and under the other Basic Documents. The
Administrator shall defend the claim and the Administrator shall not be liable
for the legal fees and expenses of the Eligible Lender Trustee after it has
assumed such defense; provided, however, that, in the event that there may be a
conflict between the positions of the Eligible Lender Trustee and the
Administrator in conducting the defense of such claim, the Eligible Lender
Trustee shall be entitled to separate counsel the fees and expenses of which
shall be paid by the Administrator on behalf of the Issuer. Neither the Issuer
nor the Administrator need reimburse any expense or indemnify against any loss,
liability or expense incurred by the Eligible Lender Trustee through the
Eligible Lender Trustee's own willful misconduct, negligence or bad faith.
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The Seller shall pay reasonable compensation to the Indenture Trustee
and the Eligible Lender Trustee and shall reimburse the Indenture Trustee and
the Eligible Lender Trustee for all reasonable expenses, disbursements and
advances.
For purposes of this Section, in the event of the termination of the
rights and obligations of the Administrator (or any successor thereto pursuant
to Section 4.3) as Administrator pursuant to Section 5.1, or a resignation by
such Administrator pursuant to this Agreement, such Administrator shall be
deemed to be the Administrator pending appointment of a successor Administrator
pursuant to Section 5.2.
Indemnification under this Section shall survive the resignation or
removal of the Eligible Lender Trustee or the Indenture Trustee or the
termination of this Agreement and shall include reasonable fees and expenses of
counsel and expenses of litigation. If the Administrator shall have made any
indemnity payments pursuant to this Section and the Person to or on behalf of
whom such payments are made thereafter collects any of such amounts from
others, such Person shall promptly repay such amounts to the Administrator,
without interest.
SECTION 4.3 Merger or Consolidation of, or Assumption of the Obligations of,
Administrator. Any Person (a) into which the Administrator may be merged or
consolidated, (b) which may result from any merger or consolidation to which
the Administrator shall be a party or (c) which may succeed to the properties
and assets of the Administrator substantially as a whole, shall be the
successor to the Administrator without the execution or filing of any document
or any further act by any of the parties to this Agreement; provided, however,
that the Administrator hereby covenants that it will not consummate any of the
foregoing transactions except upon satisfaction of the following: (i) the
surviving Administrator, if other than the Student Loan Marketing Association,
executes an agreement of assumption to perform every obligation of the
Administrator under this Agreement, (ii) immediately after giving effect to
such transaction, no representation or warranty made pursuant to Section 4.1
shall have been breached and no Administrator Default, and no event that, after
notice or lapse of time, or both, would become an Administrator Default shall
have occurred and be continuing, (iii) the surviving Administrator, if other
than the Student Loan Marketing Association, shall have delivered to the
Eligible Lender Trustee and the Indenture Trustee an Officers' Certificate and
an Opinion of Counsel each stating that such consolidation, merger or
succession and such agreement of assumption comply with this Section and that
all conditions precedent, if any, provided for in this Agreement relating to
such transaction have been complied with, and that the Rating Agency Condition
shall have been satisfied with respect to such transaction, (iv) unless the
Student Loan Marketing Association is the surviving entity, such
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transaction will not result in a material adverse Federal or state tax
consequence to the Issuer, the Noteholders or the Certificateholders and (v)
unless the Student Loan Marketing Association is the surviving entity, the
Administrator shall have delivered to the Eligible Lender Trustee and the
Indenture Trustee an Opinion of Counsel either (A) stating that, in the opinion
of such counsel, all financing statements and continuation statements and
amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of the Eligible Lender Trustee and Indenture
Trustee, respectively, in the Trust Student Loans and reciting the details of
such filings, or (B) stating that, in the opinion of such counsel, no such
action shall be necessary to preserve and protect such interests. Anything in
this Section 4.3 to the contrary notwithstanding, the Administrator may at any
time assign its rights, obligations and duties under this Agreement to an
Affiliate provided that the Rating Agencies confirm that such assignment will
not result in a downgrading or a withdrawal of the ratings then applicable to
the Notes and the Certificates.
SECTION 4.4 Limitation on Liability of Seller, Administrator and Others.
Neither the Administrator nor any of its directors, officers, employees or
agents shall be under any liability to the Issuer, the Noteholders or the
Certificateholders, or to the Indenture Trustee or the Eligible Lender Trustee
except as provided under this Agreement for any action taken or for refraining
from the taking of any action pursuant to this Agreement or for errors in
judgment; provided, however, that these provisions shall not protect the
Administrator or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties under this Agreement. The Administrator and any of its directors,
officers, employees or agents may rely in good faith on the advice of counsel
or on any document of any kind, prima facie properly executed and submitted by
any Person respecting any matters arising hereunder.
Except as provided in this Agreement, the Administrator shall not be
under any obligation to appear in, prosecute or defend any legal action that
shall not be incidental to its duties to administer the Trust Student Loans and
the Trust in accordance with this Agreement and that in its opinion may involve
it in any expense or liability; provided, however, that the Administrator may
undertake any reasonable action that it may deem necessary or desirable in
respect of this Agreement and the other Basic Documents and the rights and
duties of the parties to this Agreement and the other Basic Documents and the
interests of the Certificateholders under this Agreement and the Noteholders
under the Indenture and under this Agreement.
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SECTION 4.5 Administrator May Own Certificates or Notes. The Administrator
and any Affiliate thereof may in its individual or any other capacity become
the owner or pledgee of Certificates or Notes with the same rights as it would
have if it were not the Administrator or an Affiliate thereof, except as
expressly provided herein or in any other Basic Document.
SECTION 4.6 Student Loan Marketing Association Not to Resign as Administrator.
Subject to the provisions of Section 4.3, the Student Loan Marketing
Association shall not resign from the obligations and duties imposed on it as
Administrator under this Agreement except upon determination that the
performance of its duties under this Agreement shall no longer be permissible
under applicable law or shall violate any final order of a court or
administrative agency with jurisdiction over the Student Loan Marketing
Association or its properties. Notice of any such determination permitting or
requiring the resignation of the Student Loan Marketing Association shall be
communicated to the Eligible Lender Trustee and the Indenture Trustee at the
earliest practicable time (and, if such communication is not in writing, shall
be confirmed in writing at the earliest practicable time) and any such
determination shall be evidenced by an Opinion of Counsel to such effect
delivered to the Eligible Lender Trustee and the Indenture Trustee concurrently
with or promptly after such notice. No such resignation shall become effective
until the Indenture Trustee or a successor Administrator shall have assumed the
responsibilities and obligations of the Student Loan Marketing Association in
accordance with Section 5.2. Anything in this Section 4.7 to the contrary
notwithstanding, the Administrator may resign at any time subsequent to the
assignment of its duties and obligations hereunder pursuant to Section 4.3.
ARTICLE V
SECTION 5.1 Administrator Default. If any one of the following events (an
"Administrator Default") shall occur and be continuing:
A. (i) in the event that daily deposits into the Collection
Account are not required, any failure by the Administrator to
deliver to the Indenture Trustee for deposit in the Trust
Accounts any Available Funds required to be paid on or before
the Business Day immediately preceding any Monthly Servicing
Payment Date or Distribution Date, as applicable, or (ii) any
failure by the Administrator to direct the Indenture Trustee
to make any required distributions from either of the Trust
Accounts, which failure in case of either clause (i) or (ii)
continues unremedied for five Business Days after written
notice of such failure is received by the Administrator from
the Indenture Trustee or the Eligible Lender Trustee or after
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discovery of such failure by an officer of the Administrator;
or
B. any failure by the Administrator duly to observe or to perform
in any material respect any other term, covenant or agreement
of the Administrator set forth in this Agreement or any other
Basic Document, which failure shall (i) materially and
adversely affect the rights of Noteholders or
Certificateholders and (ii) continue unremedied for a period
of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been
given (A) to the Administrator by the Indenture Trustee or the
Eligible Lender Trustee or (B) to the Administrator, the
Indenture Trustee and the Eligible Lender Trustee by the
Noteholders or Certificateholders, as applicable, representing
not less than 25% of the Outstanding Amount of the Notes or
25% of the outstanding Certificate Balance (including any
Certificates owned by the Seller); or
C. an Insolvency Event occurs with respect to the Administrator;
then, and in each and every case, so long as the Administrator Default shall
not have been remedied, either the Indenture Trustee or the Noteholders
evidencing not less than 25% of the Outstanding Amount of the Notes, by notice
then given in writing to the Administrator (and to the Indenture Trustee and
the Eligible Lender Trustee if given by the Noteholders) may terminate all the
rights and obligations (other than the obligations set forth in Section 4.2) of
the Administrator under this Agreement. On or after the receipt by the
Administrator of such written notice, all authority and power of the
Administrator under this Agreement, whether with respect to the Notes, the
Certificates, the Trust Student Loans or otherwise, shall, without further
action, pass to and be vested in the Indenture Trustee or such successor
Administrator as may be appointed under Section 5.2; and, without limitation,
the Indenture Trustee and the Eligible Lender Trustee are hereby authorized and
empowered to execute and deliver, for the benefit of the predecessor
Administrator, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination. The
predecessor Administrator shall cooperate with the successor Administrator, the
Indenture Trustee and the Eligible Lender Trustee in effecting the termination
of the responsibilities and rights of the predecessor Administrator under this
Agreement. All reasonable costs and expenses (including attorneys' fees)
incurred in connection with amending this Agreement to reflect such succession
as Administrator pursuant to this Section shall
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be paid by the predecessor Administrator (other than the Indenture Trustee
acting as the Administrator under this Section 5.1) upon presentation of
reasonable documentation of such costs and expenses. Upon receipt of notice of
the occurrence of an Administrator Default, the Eligible Lender Trustee shall
give notice thereof to the Rating Agencies.
SECTION 5.2 Appointment of Successor.
A. Upon receipt by the Administrator of notice of termination
pursuant to Section 5.1, or the resignation by the Administrator in accordance
with the terms of this Agreement, the predecessor Administrator shall continue
to perform its functions as Administrator under this Agreement in the case of
termination, only until the date specified in such termination notice or, if no
such date is specified in a notice of termination, until receipt of such notice
and, in the case of resignation, until the later of (x) the date 120 days from
the delivery to the Eligible Lender Trustee and the Indenture Trustee of
written notice of such resignation (or written confirmation of such notice) in
accordance with the terms of this Agreement and (y) the date upon which the
predecessor Administrator shall become unable to act as Administrator as
specified in the notice of resignation and accompanying Opinion of Counsel (the
"Transfer Date"). In the event of the termination hereunder of the
Administrator the Issuer shall appoint a successor Administrator acceptable to
the Indenture Trustee, and the successor Administrator shall accept its
appointment by a written assumption in form acceptable to the Indenture
Trustee. In the event that a successor Administrator has not been appointed at
the time when the predecessor Administrator has ceased to act as Administrator
in accordance with this Section, the Indenture Trustee without further action
shall automatically be appointed the successor Administrator and the Indenture
Trustee shall be entitled to the Administration Fee. Notwithstanding the
above, the Indenture Trustee shall, if it shall be unwilling or legally unable
so to act, appoint or petition a court of competent jurisdiction to appoint any
established institution whose regular business shall include the servicing of
student loans, as the successor to the Administrator under this Agreement.
B. Upon appointment, the successor Administrator (including the
Indenture Trustee acting as successor Administrator), shall be the successor in
all respects to the predecessor Administrator and shall be subject to all the
responsibilities, duties and liabilities placed on the predecessor
Administrator that arise thereafter or are related thereto and shall be
entitled to an amount agreed to by such successor Administrator (which shall
not exceed the Administration Fee unless such compensation arrangements will
not result in a downgrading or withdrawal of any rating on the Notes or the
Certificates by any Rating Agency)
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and all the rights granted to the predecessor Administrator by the terms and
provisions of this Agreement.
C. The Administrator may not resign unless it is prohibited from
serving as such by law as evidenced by an Opinion of Counsel to such effect
delivered to the Indenture Trustee and the Eligible Lender Trustee.
Notwithstanding the foregoing or anything to the contrary herein or in the
other Basic Documents, the Indenture Trustee, to the extent it is acting as
successor Administrator pursuant hereto and thereto, shall be entitled to
resign to the extent a qualified successor Administrator has been appointed and
has assumed all the obligations of the Administrator in accordance with the
terms of this Agreement and the other Basic Documents.
SECTION 5.3 Notification to Noteholders and Certificateholders. Upon any
termination of, or appointment of a successor to, the Administrator pursuant to
this Article V, the Eligible Lender Trustee shall give prompt written notice
thereof to Certificateholders and the Indenture Trustee shall give prompt
written notice thereof to Noteholders and the Rating Agencies (which, in the
case of any such appointment of a successor, shall consist of prior written
notice thereof to the Rating Agencies).
SECTION 5.4 Waiver of Past Defaults. The Noteholders of Notes evidencing a
majority of the Outstanding Amount of the Notes (or the Certificateholders of
Certificates evidencing a majority of the outstanding Certificate Balance, in
the case of any default which does not adversely affect the Indenture Trustee
or the Noteholders) may, on behalf of all Noteholders and Certificateholders,
waive in writing any default by the Administrator in the performance of its
obligations hereunder and any consequences thereof, except a default in making
any required deposits to or payments from any of the Trust Accounts (or giving
instructions regarding the same) in accordance with this Agreement. Upon any
such waiver of a past default, such default shall cease to exist, and any
Administrator Default arising therefrom shall be deemed to have been remedied
for every purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereto.
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ARTICLE VI
SECTION 6.1 Termination.
A. Optional Purchase of All Trust Student Loans. The Administrator
shall notify the Seller and the Indenture Trustee in writing, within 15 days
after the last day of any Collection Period as of which the then outstanding
Pool Balance is 12% or less of the Initial Pool Balance, of the percentage that
the then outstanding Pool Balance bears to the Initial Pool Balance. As of the
last day of any Collection Period immediately preceding a Distribution Date as
of which the then outstanding Pool Balance is 10% or less of the Initial Pool
Balance, the Eligible Lender Trustee on behalf and at the direction of the
Seller, or any other "eligible lender" (within the meaning of the Higher
Education Act) designated by the Seller in writing to the Eligible Lender
Trustee and the Indenture Trustee, shall have the option to purchase the Trust
Estate, other than the Trust Accounts. To exercise such option, the Seller
shall deposit pursuant to Section 2.6 in the Collection Account an amount equal
to the aggregate Purchase Amount for the Trust Student Loans and the related
rights with respect thereto, plus the appraised value of any such other
property held by the Trust other than the Trust Accounts, such value to be
determined by an appraiser mutually agreed upon by the Seller, the Eligible
Lender Trustee and the Indenture Trustee, and shall succeed to all interests in
and to the Trust; provided, however, that the Seller may not effect such
purchase if such aggregate Purchase Amounts do not equal or exceed the Minimum
Purchase Amount plus any Note Interest Carryover and any Certificate Return
Carryover. In the event the Seller fails to notify the Eligible Lender Trustee
and the Indenture Trustee in writing prior to the acceptance by the Indenture
Trustee of a bid to purchase the Trust Estate pursuant to Section 4.4 of the
Indenture that the Seller intends to exercise its option to purchase the Trust
Estate, the Seller shall be deemed to have waived its option to purchase the
Trust Estate as long as the Seller has received 5 business days' notice from
the Indenture Trustee as provided in Section 4.4 of the Indenture.
B. Insolvency of the Seller. Upon any sale of the assets of the
Trust pursuant to Section 9.2 of the Trust Agreement, the Administrator shall
instruct the Indenture Trustee in writing to deposit the net proceeds from such
sale after all payments and reserves therefrom (including the expenses of such
sale) have been made (the "Insolvency Proceeds") in the Collection Account. On
the first Distribution Date following the date on which the Insolvency Proceeds
are deposited in the Collection Account, the Administrator shall instruct the
Indenture Trustee to make the following distributions (after the application on
such Distribution Date of the amount of Available Funds and amounts on deposit
in the Reserve Account pursuant to Sections 2.7 and 2.8) from the Insolvency
Proceeds and any funds remaining on deposit
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<PAGE> 33
in the Reserve Account (including the proceeds of any sale of investments
therein as described in the following sentence):
a. to the Noteholders, any unpaid Noteholders' Interest
Distribution Amount for such Distribution Date as set forth in
Sections 2.7C.3;
b. to the Noteholders, the outstanding principal balance of the
Notes in the same order and priority as is set forth in
Sections 2.7C.5 and C.6;
c. to the Certificateholders, any unpaid Certificate Return
Distribution Amount for such Distribution Date;
d. to the Certificateholders, the Certificate Balance;
e. to the Servicer, any unpaid Carryover Servicing Fees;
f. to the Noteholders, any unpaid Note Interest Carryover; and
g. to the Certificateholders, any unpaid Certificate Return
Carryover.
Any investments on deposit in the Reserve Account which will not mature on or
before such Distribution Date shall be sold by the Indenture Trustee at such
time as will result in the Indenture Trustee receiving the proceeds from such
sale not later than the Business Day preceding such Distribution Date. Any
Insolvency Proceeds remaining after the deposits described above shall be paid
to the Seller.
C. Notice. Notice of any termination of the Trust shall be given by
the Administrator to the Eligible Lender Trustee and the Indenture Trustee as
soon as practicable after the Administrator has received notice thereof.
D. Succession. Following the satisfaction and discharge of the
Indenture and the payment in full of the principal of and interest on the
Notes, the Certificateholders shall succeed to the rights of the Noteholders
hereunder and the Eligible Lender Trustee shall succeed to the rights of, and
assume the obligations of, the Indenture Trustee pursuant to this Agreement and
any other Basic Documents.
ARTICLE VII
SECTION 7.1 Protection of Interests in Trust.
A. The Seller shall execute and file such financing statements and
cause to be executed and filed such continuation statements, all in such manner
and in such places as may be
30
<PAGE> 34
required by law fully to preserve, maintain, and protect the interest of the
Issuer, the Eligible Lender Trustee and the Indenture Trustee in the Trust
Student Loans and in the proceeds thereof. The Seller shall deliver (or cause
to be delivered) to the Eligible Lender Trustee and the Indenture Trustee
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing.
B. Neither the Seller nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed in accordance with
paragraph A above seriously misleading within the meaning of Section 9-402(7)
of the UCC, unless it shall have given the Eligible Lender Trustee and the
Indenture Trustee at least five days' prior written notice thereof and shall
have promptly filed appropriate amendments to all previously filed financing
statements or continuation statements.
C. Each of the Seller and the Servicer shall have an obligation to
give the Eligible Lender Trustee and the Indenture Trustee at least 60 days'
prior written notice of any relocation of its principal executive office if, as
a result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly file any such
amendment. The Servicer shall at all times maintain each office from which it
shall service Trust Student Loans, and its principal executive office, within
the United States of America.
D. The Servicer shall maintain accounts and records as to each Trust
Student Loan accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Trust Student Loan, including
payments and recoveries made and payments owing (and the nature of each) and
(ii) reconciliation between payments or recoveries on (or with respect to) each
Trust Student Loan and the amounts from time to time deposited by the Servicer
in the Collection Account in respect of such Trust Student Loan.
E. The Servicer shall maintain its computer systems so that, from and
after the time of sale of the Trust Student Loans to the Eligible Lender
Trustee on behalf of the Issuer, the Servicer's master computer records
(including any backup archives) that refer to a Trust Student Loan shall
indicate clearly the interest of the Issuer, the Eligible Lender Trustee and
the Indenture Trustee in such Trust Student Loan and that such Trust Student
Loan is owned by the Eligible Lender Trustee on behalf of the Issuer and has
been pledged to the Indenture Trustee. Indication of the Issuer's, the
Eligible Lender Trustee's and the Indenture Trustee's interest in a Trust
Student Loan shall be deleted from or modified on the Servicer's computer
31
<PAGE> 35
systems when, and only when, the related Trust Student Loan shall have been
paid in full or repurchased.
F. If at any time the Seller or the Administrator shall propose to
sell, grant a security interest in, or otherwise transfer any interest in
student loans to any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or printouts (including any restored from backup
archives) that, if they refer in any manner whatsoever to any Trust Student
Loan, indicate clearly that such Trust Student Loan has been sold and is owned
by the Eligible Lender Trustee on behalf of the Issuer and has been pledged to
the Indenture Trustee.
G. Upon reasonable notice, the Servicer shall permit the Indenture
Trustee and its agents at any time during normal business hours to inspect,
audit and make copies of and abstracts from the Servicer's records regarding
any Trust Student Loan.
H. Upon request, at any time the Eligible Lender Trustee or the
Indenture Trustee have reasonable grounds to believe that such request would be
necessary in connection with its performance of its duties under the Basic
Documents, the Servicer shall furnish to the Eligible Lender Trustee or to the
Indenture Trustee (in each case, with a copy to the Administrator), within five
Business Days, a list of all Trust Student Loans (by borrower social security
number, type of loan and date of issuance) then held as part of the Trust, and
the Administrator shall furnish to the Eligible Lender Trustee or to the
Indenture Trustee, within 20 Business Days thereafter, a comparison of such
list to the list of Initial Trust Student Loans set forth in Schedule A to the
Indenture as of the Closing Date, and, for each Trust Student Loan that has
been removed from the pool of loans held by the Eligible Lender Trustee on
behalf of the Issuer, information as to the date as of which and circumstances
under which each such Trust Student Loan was so removed.
I. The Seller shall deliver to the Eligible Lender Trustee and the
Indenture Trustee:
(1) promptly after the execution and delivery of this Agreement and of
each amendment thereto and on each Transfer Date, an Opinion of
Counsel either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been executed
and filed that are necessary fully to preserve and protect the
interest of the Eligible Lender Trustee and the Indenture Trustee in
the Trust Student Loans, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are
given, or (B) stating that, in the opinion
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<PAGE> 36
of such counsel, no such action shall be necessary to preserve and
protect such interest; and
(2) within 120 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three
months after the Cutoff Date, an Opinion of Counsel, dated as of a
date during such 120-day period, either (A) stating that, in the
opinion of such counsel, all financing statements and continuation
statements have been executed and filed that are necessary fully to
preserve and protect the interest of the Eligible Lender Trustee and
the Indenture Trustee in the Trust Student Loans, and reciting the
details of such filings or referring to prior Opinions of Counsel in
which such details are given, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to preserve and
protect such interest; provided that a single Opinion of Counsel may
be delivered in satisfaction of the foregoing requirement and that of
Section 3.6(b) of the Indenture.
Each Opinion of Counsel referred to in clause (1) or (2) above shall
specify (as of the date of such opinion and given all applicable laws as in
effect on such date) any action necessary to be taken in the following year to
preserve and protect such interest.
J. The Seller shall, to the extent required by applicable law, cause
the Certificates and the Notes to be registered with the Commission pursuant to
Section 12(b) or Section 12(g) of the Exchange Act within the time periods
specified in such sections.
ARTICLE VIII
SECTION 8.1 Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not
be subject to the supervision of the Issuer or the Eligible Lender Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or the
Eligible Lender Trustee in any way and shall not otherwise be deemed an agent
of the Issuer or the Eligible Lender Trustee.
SECTION 8.2 No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuer or the Eligible Lender
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or
33
<PAGE> 37
apparent authority to incur any obligation or liability on behalf of the
others.
SECTION 8.3 Other Activities of Administrator. Nothing herein shall prevent
the Administrator or its Affiliates from engaging in other businesses or, in
its sole discretion, from acting in a similar capacity as an administrator for
any other person or entity even though such person or entity may engage in
business activities similar to those of the Issuer, the Eligible Lender Trustee
or the Indenture Trustee.
SECTION 8.4 Powers of Attorney. The Eligible Lender Trustee and the Indenture
Trustee shall upon the written request of the Administrator furnish the
Administrator with any powers of attorney and other documents reasonably
necessary or appropriate to enable the Administrator to carry out its
administrative duties hereunder.
SECTION 8.5 Amendment. This Agreement (other than Sections 2.1 and 2.2) may
be amended by the Seller, the Servicer, the Administrator, the Eligible Lender
Trustee and the Indenture Trustee, without the consent of any of the
Noteholders or the Certificateholders, 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 of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel delivered to the Eligible Lender Trustee and
the Indenture Trustee, adversely affect in any material respect the interests
of any Noteholder or Certificateholder.
Sections 2.1 and 2.2 may be amended from time to time by a written
amendment duly executed and delivered by the Eligible Lender Trustee, the
Indenture Trustee and the Administrator, without the consent of the Noteholders
and the Certificateholders, for the purpose of adding any provision to or
changing in any manner or eliminating any of the provisions of such Article;
provided that such amendment will not, in an Opinion of Counsel obtained on
behalf of the Issuer and satisfactory to the Indenture Trustee and the Eligible
Lender Trustee, materially and adversely affect the interest of any Noteholder
or Certificateholder.
This Agreement (other than Sections 2.1 and 2.2) may also be amended
from time to time by the Seller, the Servicer, the Administrator, the Indenture
Trustee and the Eligible Lender Trustee, and Sections 2.1 and 2.2 may also be
amended by the Eligible Lender Trustee, the Administrator and the Indenture
Trustee, with the consent of the Noteholders of Notes evidencing a majority of
the Outstanding Amount of the Notes and the consent of the Certificateholders
of Certificates evidencing a majority
34
<PAGE> 38
of the Certificate Balance, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Noteholders or the
Certificateholders; 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 with respect to Trust Student Loans or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholders or (b) reduce the aforesaid percentage of
the Outstanding Amount of the Notes and the Certificate Balance, the
Noteholders or the Certificateholders of which are required to consent to any
such amendment, without the consent of all outstanding Noteholders and
Certificateholders.
Promptly after the execution of any such amendment (or, in the case of
the Rating Agencies, fifteen days prior thereto), the Eligible Lender Trustee
shall furnish written notification of the substance of such amendment to each
Certificateholder, the Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of Certificateholders or
Noteholders 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.
Prior to the execution of any amendment to this Agreement, the
Eligible Lender Trustee and the Indenture 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 and the Opinion of
Counsel referred to in Section 7.1I(1). The Eligible Lender Trustee and the
Indenture Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Eligible Lender Trustee's or the Indenture
Trustee's, as applicable, own rights, duties or immunities under this Agreement
or otherwise.
SECTION 8.6 Assignment. Notwithstanding anything to the contrary contained
herein, except as provided in Section 4.3 of the Servicing Agreement and
Section 4.3 of this Agreement, this Agreement may not be assigned by the
Seller, the Administrator or the Servicer. This Agreement may be assigned by
the Eligible Lender Trustee only to its permitted successor pursuant to the
Trust Agreement.
SECTION 8.7 Limitations on Rights of Others. The provisions of this Agreement
are solely for the benefit of the Seller, the Servicer, the Issuer, the
Indenture Trustee and the Eligible Lender Trustee and for the benefit of the
Certificateholders and the Noteholders, as third party beneficiaries, and
nothing in this Agreement, whether express or implied, shall be construed to
35
<PAGE> 39
give to any other Person any legal or equitable right, remedy or claim in the
Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 8.8 Assignment to Indenture Trustee. The Seller hereby acknowledges
and consents to any Grant by the Issuer to the Indenture Trustee pursuant to
the Indenture for the benefit of the Noteholders of a security interest in all
right, title and interest of the Issuer in, to and under the Trust Student
Loans and the assignment of any or all of the Issuer's rights and obligations
under this Agreement and the Sale Agreement and the Seller's rights under the
Purchase Agreement to the Indenture Trustee. The Servicer hereby acknowledges
and consents to the assignment by the Issuer to the Indenture Trustee pursuant
to the Indenture for the benefit of the Noteholders of any and all of the
Issuer's rights and obligations under this Agreement and under the Servicing
Agreement.
SECTION 8.9 Nonpetition Covenants.
A. Notwithstanding any prior termination of this Agreement, the
Servicer, the Administrator, the Interim Eligible Lender Trustee and the Seller
shall not, prior to the date which is one year and one day after the
termination of this Agreement, acquiesce, petition or otherwise invoke or cause
the Issuer to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Issuer under any Federal
or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Issuer or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Issuer.
B. Notwithstanding any prior termination of this Agreement, the
Servicer, the Administrator, the Issuer and the Eligible Lender Trustee shall
not, prior to the date which is one year and one day after the termination of
this Agreement, acquiesce, petition or otherwise invoke or cause the Seller to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Seller under any insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller.
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SECTION 8.10 Limitation of Liability of Eligible Lender Trustee and Indenture
Trustee.
A. Notwithstanding anything contained herein to the contrary, this
Agreement has been signed by The Chase Manhattan Bank (USA) not in its
individual capacity but solely in its capacity as Eligible Lender Trustee of
the Issuer and in no event shall The Chase Manhattan Bank (USA) in its
individual capacity have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer or the Eligible Lender
Trustee hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto as to all of which recourse shall be had solely to
the assets of the Issuer.
B. Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by Bankers Trust Company not in its individual
capacity but solely as Indenture Trustee and in no event shall Bankers Trust
Company have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
SECTION 8.11 Governing Law. This Agreement shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of
law provisions, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
SECTION 8.12 Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
SECTION 8.13 Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall together constitute but one and the same
agreement.
SECTION 8.14 Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall 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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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
SLM STUDENT LOAN TRUST 1996-3,
by The Chase Manhattan Bank (USA),
not in its individual capacity but
solely as Eligible Lender Trustee,
By: /s/ John W. Mack
----------------------------
Name: John W. Mack
Title: Second Vice President
STUDENT LOAN MARKETING ASSOCIATION
By: /s/ Robert R. Levine
------------------------------
Name:
------------------------------
Title:
-----------------------------
SLM FUNDING CORPORATION
By: /s/ Denise B. McGlone
------------------------------
Name:
------------------------------
Title:
-----------------------------
SALLIE MAE SERVICING CORPORATION
By: /s/ Marianne M. Keler
------------------------------
Name:
------------------------------
Title:
-----------------------------
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<PAGE> 42
THE CHASE MANHATTAN BANK (USA)
not in its individual capacity but
solely as Eligible Lender Trustee
By: /s/ John W. Mack
----------------------------
Name: John W. Mack
Title: Second Vice President
BANKERS TRUST COMPANY, not in its
individual capacity but solely as
Indenture Trustee
By: /s/ Lara Graff
----------------------------
Name: Lara Graff
Title: Assistant Vice President
39
<PAGE> 1
EXHIBIT 99.4
==================================================================
SERVICING AGREEMENT
among
SALLIE MAE SERVICING CORPORATION,
STUDENT LOAN MARKETING ASSOCIATION,
as Administrator
SLM STUDENT LOAN TRUST 1996-3,
THE CHASE MANHATTAN BANK (USA),
not in its individual capacity
but solely as Eligible Lender Trustee
and
BANKERS TRUST COMPANY
not in its individual capacity
but solely as Indenture Trustee
Dated as of July 9, 1996
=================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I
Section 1.1 Definitions and Usage. . . . . . . . . . . . . 1
ARTICLE II
Section 2.1 Custody of Trust Student Loan Files. . . . . . 2
Section 2.2 Duties of Servicer as Custodian. . . . . . . . 2
Section 2.3 Maintenance of and Access to Records . . . . . 3
Section 2.4 Release of Documents . . . . . . . . . . . . . 3
Section 2.5 Instructions; Authority To Act . . . . . . . . 3
Section 2.6 [RESERVED] . . . . . . . . . . . . . . . . . . 3
Section 2.7 Effective Period and Termination . . . . . . . 3
ARTICLE III
Section 3.1 Duties of Servicer . . . . . . . . . . . . . . 4
Section 3.2 Collection of Trust Student Loan Payments. . . 6
Section 3.3 Realization upon Trust Student Loans . . . . . 7
Section 3.4 No Impairment. . . . . . . . . . . . . . . . . 7
Section 3.5 Purchase of Trust Student Loans; Reimbursement 7
Section 3.6 Primary Servicing Fee; Carryover Servicing Fee 10
Section 3.7 Access to Certain Documentation and
Information Regarding Trust Student Loans . . 10
Section 3.8 Servicer Expenses. . . . . . . . . . . . . . . 11
Section 3.9 Appointment of Subservicer . . . . . . . . . . 11
Section 3.10 Reports. . . . . . . . . . . . . . . . . . . . 11
Section 3.11 Covenants and Agreements of the Issuer,
Administrator, Eligible Lender Trustee
and Servicer. . . . . . . . . . . . . . . . . 12
Section 3.12 Special Programs . . . . . . . . . . . . . . . 13
Section 3.13 Financial Statements . . . . . . . . . . . . . 13
Section 3.14 Insurance. . . . . . . . . . . . . . . . . . . 14
Section 3.15 Administration Agreement . . . . . . . . . . . 14
Section 3.16 Lender Identification Number . . . . . . . . . 14
ARTICLE IV
Section 4.1 Representations of Servicer. . . . . . . . . . . 14
Section 4.2 Indemnities of Servicer. . . . . . . . . . . . 16
Section 4.3 Merger or Consolidation of, or Assumption of
the Obligations of, Servicer. . . . . . . . . 17
Section 4.4 Limitation on Liability of Servicer. . . . . . 17
Section 4.5 Sallie Mae Servicing Corporation Not to Resign
as Servicer . . . . . . . . . . . . . . . . . 18
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE V
Section 5.1 Servicer Default . . . . . . . . . . . . . . . 18
Section 5.2 Appointment of Successor . . . . . . . . . . . 20
Section 5.3 Notification to Noteholders and
Certificateholders. . . . . . . . . . . . . . 21
Section 5.4 Waiver of Past Defaults. . . . . . . . . . . . 21
ARTICLE VI
Section 6.1 Amendment. . . . . . . . . . . . . . . . . . . 22
Section 6.2 Notices. . . . . . . . . . . . . . . . . . . . 23
Section 6.3 Counterparts . . . . . . . . . . . . . . . . . 24
Section 6.4 Entire Agreement; Severability . . . . . . . . 24
Section 6.5 Governing Law. . . . . . . . . . . . . . . . . 24
Section 6.6 Relationship of Parties. . . . . . . . . . . . 24
Section 6.7 Captions . . . . . . . . . . . . . . . . . . . 24
Section 6.8 Nonliability of Directors, Officers and
Employees of Servicer, the Eligible Lender
Trustee, the Indenture Trustee and the
Administrator. . . . . . . . . . . . . . . . . 24
Section 6.9 Assignment . . . . . . . . . . . . . . . . . . 24
Section 6.10 Limitation of Liability of Eligible Lender
Trustee and Indenture Trustee . . . . . . . . 25
Attachment A Schedule of Fees
Attachment B Servicer Locations
Attachment C Reports
Appendix A
</TABLE>
ii
<PAGE> 4
SERVICING AGREEMENT
Sallie Mae Servicing Corporation ("Servicer"), a corporation organized
under the laws of the State of Delaware, hereby agrees with SLM Student Loan
Trust 1996-3 (the "Issuer"), The Chase Manhattan Bank (USA), not in its
individual capacity but in its capacity as trustee under a trust agreement
dated July 1, 1996 between SLM Funding Corporation and The Chase Manhattan Bank
(USA) ("Eligible Lender Trustee"), the Student Loan Marketing Association, a
federally chartered corporation ("Administrator") and Bankers Trust Company, a
New York banking corporation, not in its individual capacity but in its
capacity as Indenture Trustee under an Indenture dated July 1, 1996 between SLM
Student Loan Trust 1996-3 and Bankers Trust Company (the "Indenture Trustee"),
as follows:
WHEREAS, Eligible Lender Trustee will acquire certain education loans
to be held in the Trust formed pursuant to a trust agreement (the "Trust
Agreement"), dated as of July 1, 1996, between SLM Funding Corporation and
Eligible Lender Trustee;
WHEREAS, the Issuer will issue notes (the "Notes") pursuant to an
indenture (the "Indenture"), dated as of July 1, 1996, between the Issuer and
the Indenture Trustee and trust certificates (the "Certificates") pursuant to
the Trust Agreement, which Notes and Certificates are payable from the assets
of the Issuer;
WHEREAS, the Issuer, the Administrator and the Eligible Lender Trustee
desire Servicer to service said education loans held by the Eligible Lender
Trustee on behalf of the Issuer, and Servicer is willing to service said
education loans for the Issuer, the Administrator, the Eligible Lender Trustee
and the Indenture Trustee;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto 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.
<PAGE> 5
ARTICLE II
SECTION 2.1 Custody of Trust Student Loan Files. To assure uniform quality in
servicing the Trust Student Loans and to reduce administrative costs, the
Issuer hereby revocably appoints the Servicer, and the Servicer hereby accepts
such appointment, to act for the benefit of the Issuer and the Indenture
Trustee as custodian of the following documents or instruments (collectively
the "Trust Student Loan Files") which are hereby constructively delivered to
the Indenture Trustee, as pledgee of the Issuer with respect to each Trust
Student Loan:
(a) the original fully executed copy of the note evidencing the
Trust Student Loan; and
(b) any and all other documents and computerized records that the
Servicer shall keep on file, in accordance with its customary
procedures, relating to such Trust Student Loan or any obligor
with respect thereto.
SECTION 2.2 Duties of Servicer as Custodian. The Servicer shall hold the
Trust Student Loan Files for the benefit of the Issuer and the Indenture
Trustee and maintain such accurate and complete accounts, records and computer
systems pertaining to each Trust Student Loan File as shall enable the Issuer
to comply with this Agreement. In performing its duties as custodian the
Servicer shall act with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to the student loan files
relating to comparable student loans that the Servicer services on behalf of
the Student Loan Marketing Association and shall ensure that it fully complies
with all applicable Federal and state laws, including the Higher Education Act,
with respect thereto. The Servicer shall take all actions necessary with
respect to the Trust Student Loan Files held by it under this Agreement and of
the related accounts, records and computer systems, in order to enable the
Issuer or the Indenture Trustee to verify the accuracy of the Servicer's record
keeping with respect to the Servicer's obligations as custodian hereunder. The
Servicer shall promptly report to the Issuer, the Administrator and the
Indenture Trustee any material failure on its part to hold the Trust Student
Loan Files and maintain its accounts, records and computer systems as herein
provided and promptly take appropriate action to remedy any such failure.
Nothing herein shall be deemed to require an initial review or any periodic
review by the Issuer, the Eligible Lender Trustee or the Indenture Trustee of
the Trust Student Loan Files. If in the reasonable judgment of the Eligible
Lender Trustee it is necessary to preserve the interests of the Noteholders,
Certificateholders and the Trust in the Trust Student Loans or at the request
of the Administrator, the Servicer shall transfer physical possession of the
notes evidencing the Trust Student Loans to the Eligible Lender Trustee, the
Indenture Trustee or
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any other custodian for either of them designated by the Eligible Lender
Trustee.
SECTION 2.3 Maintenance of and Access to Records. The Servicer shall maintain
each Trust Student Loan File at one of its offices specified in Attachment B to
this Agreement or at such other office as shall be consented to by the Issuer
and the Indenture Trustee upon written notice to the Issuer and the Indenture
Trustee. Upon reasonable prior notice, the Servicer shall make available to
the Issuer and the Indenture Trustee or their respective duly authorized
representatives, attorneys or auditors a list of locations of the Trust Student
Loan Files and the related accounts, records and computer systems maintained by
the Servicer at such times during normal business hours as the Issuer or the
Indenture Trustee shall instruct.
SECTION 2.4 Release of Documents. Upon written instruction from the Indenture
Trustee, the Servicer shall release any Trust Student Loan File to the
Indenture Trustee, the Indenture Trustee's agent, or the Indenture Trustee's
designee, as the case may be, at such place or places as the Indenture Trustee
may reasonably designate, as soon as practicable. The Indenture Trustee shall
cooperate with the Servicer to provide the Servicer with access to the Trust
Student Loan Files in order for the Servicer to continue to service the Trust
Student Loans after the release of the Trust Student Loan Files. In the event
the Servicer is not provided access to the Trust Student Loan Files, the
Servicer shall not be deemed to have breached its obligations pursuant to
Section 3.1, 3.2, 3.3 or 3.4 if it is unable to perform such obligations due to
its inability to have access to the Trust Student Loans Files. The Servicer
shall not be liable for any losses with respect to the servicing of such Trust
Student Loans arising after the release of the related Trust Student Loan Files
to the extent the losses are attributable to the Servicer's inability to have
access to the related Trust Student Loan Files.
SECTION 2.5 Instructions; Authority To Act. The Servicer shall be deemed to
have received proper instructions with respect to the Trust Student Loan Files
upon its receipt of written instructions signed by a Responsible Officer of the
Indenture Trustee.
SECTION 2.6 [RESERVED].
SECTION 2.7 Effective Period and Termination. Sallie Mae Servicing
Corporation's appointment as custodian shall become effective as of the Closing
Date and shall continue in full force and effect for so long as Sallie Mae
Servicing Corporation shall remain the Servicer hereunder. If Sallie Mae
Servicing
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Corporation or any successor Servicer shall resign as Servicer in accordance
with the provisions of this Agreement or if all the rights and obligations of
Sallie Mae Servicing Corporation or any such successor Servicer shall have been
terminated under Section 5.1, the appointment of Sallie Mae Servicing
Corporation or such successor Servicer as custodian shall be terminated
simultaneously with the effectiveness of such resignation or termination. On
or prior to the effective date of any resignation or termination of such
appointment, the Servicer shall deliver the Trust Student Loan Files to the
successor Servicer, the Indenture Trustee or the Indenture Trustee's agent, at
the direction of the Indenture Trustee, at such place or places as the
Indenture Trustee may reasonably designate. In establishing an effective date
for the termination of the Servicer as custodian of the Trust Student Loan
Files, the parties shall provide for a reasonable period for the Servicer to
deliver the Trust Student Loan Files to its designated successor.
ARTICLE III
SECTION 3.1 Duties of Servicer. The Servicer, for the benefit of the Issuer
(to the extent provided herein), shall manage, service, administer and make
collections on the Trust Student Loans with reasonable care, using that degree
of skill and attention that the Servicer exercises with respect to comparable
student loans that it services on behalf of the Student Loan Marketing
Association from the Closing Date (or with respect to Trust Student Loans which
are sold to the Issuer following the Closing Date, such later date as the Trust
Student Loans are delivered to Servicer for servicing hereunder) until the
Trust Student Loans are paid in full. At any time that substantially all
remaining Trust Student Loans are repurchased by SLM Funding Corporation from
the Issuer pursuant to Section 6.1 of the Administration Agreement, the
Servicer agrees to execute, at the request of SLM Funding Corporation, a new
servicing agreement which agreement shall include terms and conditions
substantially the same as the terms and conditions of this Agreement; provided,
however, the Servicer shall not be required to so execute a new servicing
agreement until it has received all Servicing Fees then due and payable
hereunder. Without limiting the generality of the foregoing or of any other
provision set forth in this Agreement and notwithstanding any other provision
to the contrary set forth herein, the Servicer shall manage, service,
administer and make collections with respect to the Trust Student Loans
(including collection of any Interest Subsidy Payments and Special Allowance
Payments on behalf of the Eligible Lender Trustee) in accordance with, and
otherwise comply with, all applicable Federal and state laws, including all
applicable rules, regulations and other requirements of the Higher Education
Act and the applicable Guarantee Agreement, the failure to comply with which
would adversely affect the eligibility of one or more of the Trust Student
Loans for Federal reinsurance or
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Interest Subsidy Payments or Special Allowance Payments or one or more of the
Trust Student Loans for receipt of Guarantee Payments.
The Servicer's duties shall include, but shall not be limited to,
collection and posting of all payments, responding to inquiries of borrowers on
such Trust Student Loans, monitoring borrowers' status, making required
disclosures to borrowers, performing due diligence with respect to borrower
delinquencies, sending payment coupons to borrowers and otherwise establishing
repayment terms, reporting tax information to borrowers, if applicable,
accounting for collections and furnishing monthly statements with respect
thereto to the Administrator. The Servicer shall follow its customary
standards, policies and procedures in performing its duties as Servicer.
Without limiting the generality of the foregoing, the Servicer is authorized
and empowered to execute and deliver, on behalf of itself, the Issuer, the
Eligible Lender Trustee, the Indenture Trustee, the Certificateholders and the
Noteholders or any of them, instruments of satisfaction or cancellation, or
partial or full release or discharge, and all other comparable instruments,
with respect to such Trust Student Loans; provided, however, that the Servicer
agrees that it will not (a) permit any rescission or cancellation of a Trust
Student Loan except as ordered by a court of competent jurisdiction or
governmental authority or as otherwise consented to in writing by the Eligible
Lender Trustee and the Indenture Trustee provided, however, that the Servicer
may write off any delinquent Trust Student Loan if the remaining balance of the
borrower's account is less than $50 or (b) reschedule, revise, defer or
otherwise compromise with respect to payments due on any Trust Student Loan
except pursuant to any applicable interest only, deferral or forbearance
periods or otherwise in accordance with all applicable standards, guidelines
and requirements with respect to the servicing of Student Loans; provided
further, however, that the Servicer shall not agree to any reduction of yield
with respect to any Trust Student Loan (either by reducing borrower payments or
reducing principal balance) except as permitted in accordance with Section 3.12
or otherwise if, and to the extent, the Servicer or the Administrator
reimburses the Issuer in an amount sufficient to offset any such effective
yield reduction made by the Servicer consistent with such customary servicing
procedures as it follows with respect to comparable Student Loans which it
services on behalf of the Student Loan Marketing Association. The Eligible
Lender Trustee on behalf of the Issuer hereby grants a power of attorney and
all necessary authorization to the Servicer to maintain any and all collection
procedures with respect to the Trust Student Loans, including filing, pursuing
and recovering claims with the Guarantors for Guarantee Payments and with the
Department for Interest Benefit Payments and Special Allowance Payments and
taking any steps to enforce such Trust Student Loans such as commencing a legal
proceeding to enforce a Trust Student
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Loan in the names of the Issuer, the Eligible Lender Trustee, the Indenture
Trustee, the Certificateholders and the Noteholders. The Eligible Lender
Trustee shall upon the written request of the Servicer furnish the Servicer
with any other powers of attorney and other documents reasonably necessary or
appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
SECTION 3.2 Collection of Trust Student Loan Payments.
A. The Servicer shall make reasonable efforts (including all efforts
that may be specified under the Higher Education Act or any Guarantee
Agreement) to collect all payments called for under the terms and provisions of
the Trust Student Loans as and when the same shall become due and shall follow
such collection procedures as it follows with respect to comparable student
loans that it services on behalf of the Student Loan Marketing Association.
The Servicer shall allocate collections with respect to the Trust Student Loans
between principal and interest in accordance with Section 2.5 of the
Administration Agreement. The Servicer may in its discretion waive any late
payment charge or any other fees that may be collected in the ordinary course
of servicing a Trust Student Loan.
B. The Servicer shall make reasonable efforts to claim, pursue and
collect all Guarantee Payments from the Guarantors pursuant to the Guarantee
Agreements with respect to any of the Trust Student Loans as and when the same
shall become due and payable, shall comply with all applicable laws and
agreements with respect to claiming, pursuing and collecting such payments and
shall follow such practices and procedures as it follows with respect to
comparable guarantee agreements and student loans that it services on behalf of
the Student Loan Marketing Association. In connection therewith, the Servicer
is hereby authorized and empowered to convey to any Guarantor the note and the
related Trust Student Loan File representing any Trust Student Loan in
connection with submitting a claim to such Guarantor for a Guarantee Payment in
accordance with the terms of the applicable Guarantee Agreement. All amounts
so collected by the Servicer shall constitute Available Funds for the
applicable Collection Period and shall be deposited into the Collection Account
or transferred to the Administrator in accordance with Section 2.4 of the
Administration Agreement. The Eligible Lender Trustee shall, upon the written
request of the Servicer, furnish the Servicer with any power of attorney and
other documents necessary or appropriate to enable the Servicer to convey such
documents to any Guarantor and to make such claims.
C. The Servicer on behalf of the Eligible Lender Trustee shall, on
behalf of the Issuer, make reasonable efforts to claim, pursue and collect all
Interest Subsidy Payments and Special Allowance Payments from the Department
with respect to any of the
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Trust Student Loans as and when the same shall become due and payable, shall
comply with all applicable laws and agreements with respect to claiming,
pursuing and collecting such payments and shall follow such practices and
procedures as the Servicer follows with respect to comparable student loans
that it services on behalf of the Student Loan Marketing Association. All
amounts so collected by the Servicer shall constitute Available Funds for the
applicable Collection Period and shall be deposited into the Collection Account
or transferred to the Administrator in accordance with Section 2.4 of the
Administration Agreement. In connection therewith, the Servicer shall prepare
and file with the Department on a timely basis all claims forms and other
documents and filings necessary or appropriate in connection with the claiming
of Interest Subsidy Payments and Special Allowance Payments on behalf of the
Eligible Lender Trustee and shall otherwise assist the Eligible Lender Trustee
in pursuing and collecting such Interest Subsidy Payments and Special Allowance
Payments from the Department. The Eligible Lender Trustee shall upon the
written request of the Servicer furnish the Servicer with any power of attorney
and other documents reasonably necessary or appropriate to enable the Servicer
to prepare and file such claims forms and other documents and filings.
SECTION 3.3 Realization upon Trust Student Loans. For the benefit of the
Issuer, the Servicer shall use reasonable efforts consistent with its servicing
practices and procedures that it utilizes with respect to comparable student
loans that it services on behalf of the Student Loan Marketing Association and
including all efforts that may be specified under the Higher Education Act or
any Guarantee Agreement in its servicing of any delinquent Trust Student Loans.
SECTION 3.4 No Impairment. The Servicer shall not impair the rights of the
Issuer, the Eligible Lender Trustee, the Indenture Trustee, the
Certificateholders or Noteholders in such Trust Student Loans.
SECTION 3.5 Purchase of Trust Student Loans; Reimbursement.
A. The Servicer, the Administrator, the Eligible Lender Trustee and
the Indenture Trustee shall give notice to the other parties promptly, in
writing, upon the discovery of any breach of the provisions of Section 3.1,
3.2, 3.3 or 3.4 which has a materially adverse effect on the interest of the
Issuer. In the event of such a material breach which is not curable by
reinstatement of the Guarantor's guarantee of such Trust Student Loan, the
Servicer shall purchase the affected Trust Student Loan not later than 120 days
following the earlier of the date of discovery of such material breach and the
date of receipt of the Guarantor reject transmittal form with respect to such
Trust Student Loan. In the event of a material breach with respect to such
Trust Student Loan which is curable by reinstatement of the
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Guarantor's guarantee of such Trust Student Loan, unless the material breach
shall have been cured within 360 days following the earlier of the date of
discovery of such material breach and the date of receipt of the Guarantor
reject transmittal form with respect to such Trust Student Loan, the Servicer
shall purchase such Trust Student Loan not later than the sixtieth day
following the end of such 360-day period. The Servicer shall also remit to
the Administrator as provided in Section 2.6 of the Administration Agreement on
the date of purchase of any Trust Student Loan pursuant to this Section 3.5 an
amount equal to all nonguaranteed interest amounts and forfeited Interest
Subsidy Payments and Special Allowance Payments with respect to such Trust
Student Loan. In consideration of the purchase of any such Trust Student Loan
pursuant to this Section 3.5, the Servicer shall remit the Purchase Amount in
the manner specified in Section 2.6 of the Administration Agreement. Any
breach that relates to compliance with the requirements of the Higher Education
Act or of the applicable Guarantor but that does not affect such Guarantor's
obligation to guarantee payments of a Trust Student Loan will not be considered
to have a material adverse effect for purposes of this Section 3.5A.
B. In addition, if any breach of Section 3.1, 3.2, 3.3 or 3.4 by the
Servicer does not trigger such purchase obligation but does result in the
refusal by a Guarantor to guarantee all or a portion of the accrued interest
(or any obligation of the Issuer to repay such interest to a Guarantor), or the
loss (including any obligation of the Issuer to repay to the Department) of
Interest Subsidy Payments and Special Allowance Payments, with respect to any
Trust Student Loan affected by such breach, then the Servicer shall reimburse
the Issuer in an amount equal to the sum of all such nonguaranteed interest
amounts and such forfeited Interest Subsidy Payments or Special Allowance
Payments by netting such sum against the Servicing Fee payable to the Servicer
for such period and remitting any additional amounts owed in the manner
specified in Section 2.6 of the Administration Agreement not later than (i) the
last day of the next Collection Period ending not less than 60 days from the
date of the Guarantor's refusal to guarantee all or a portion of accrued
interest or loss of Interest Subsidy Payments or Special Allowance Payments, or
(ii) in the case where the Servicer reasonably believes such amounts are likely
to be collected, not later than the last day of the next Collection Period
ending not less than 360 days from the date of the Guarantor's refusal to
guarantee all or a portion of accrued interest or loss of Interest Subsidy
Payments or Special Allowance Payments. At the time such payment is made, the
Servicer shall not be required to reimburse the Issuer for interest that is
then capitalized, however, such amounts shall be reimbursed if the borrower
subsequently defaults and such capitalized interest is not paid by the
Guarantor.
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C. Anything in this Section 3.5 to the contrary notwithstanding, if as
of the last Business Day of any month the aggregate outstanding principal
amount of Trust Student Loans with respect to which claims have been filed with
and rejected by a Guarantor or with respect to which the Servicer determines
that claims cannot be filed pursuant to the Higher Education Act as a result of
a breach by the Servicer or the Seller, exceeds 1% of the Pool Balance, the
Servicer or the Seller, as appropriate, shall purchase, within 30 days of a
written request of the Eligible Lender Trustee or Indenture Trustee, such
affected Trust Student Loans in an aggregate principal amount such that after
such purchase the aggregate principal amount of such affected Trust Student
Loans is less than 1% of the Pool Balance. The Trust Student Loans to be
purchased by the Servicer or the Seller pursuant to the preceding sentence
shall be based on the date of claim rejection (or date of notice referred to in
the first sentence of this Section 3.5) with the Trust Student Loans with the
earliest such date to be purchased first.
D. In lieu of repurchasing Trust Student Loans pursuant to this
Section 3.5, the Servicer may, at its option, with the prior consent of the
Administrator, substitute Student Loans or arrange for the substitution of
Student Loans which are substantially similar as of the date of substitution on
an aggregate basis to the Trust Student Loans for which they are being
substituted with respect to the following characteristics:
(1) status (i.e., in-school, grace, deferment, forbearance or
repayment),
(2) program type (i.e., unsubsidized Stafford, subsidized
Stafford, PLUS or SLS),
(3) school type,
(4) total return,
(5) principal balance, and
(6) remaining term to maturity.
In addition, each substituted Student Loan shall comply, as of the date of
substitution, with the representations and warranties made by the Seller in the
Sale Agreement. In choosing Student Loans to be substituted pursuant to this
subsection D, the Servicer shall make a reasonable determination that the
Student Loans to be substituted will not have a material adverse effect on the
Noteholders and the Certificateholders.
In the event the Servicer elects to substitute Student Loans pursuant
to this Section 3.5 and the Administrator consents to such substitution, the
Servicer will remit to the Administrator the amount of any shortfall between
the Purchase Amount of the substituted Student Loans and the Purchase Amount of
the Trust Student Loans for which they are being substituted. The Servicer
shall also remit to the Administrator an amount equal to all nonguaranteed
interest amounts and forfeited Interest Subsidy
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Payments and Special Allowance Payments with respect to the Trust Student Loans
in the manner provided in Section 2.6 of the Administration Agreement.
E. The sole remedy of the Issuer, the Eligible Lender Trustee, the
Indenture Trustee, the Certificateholders and the Noteholders with respect to a
breach pursuant to Section 3.1, 3.2, 3.3 or 3.4 shall be to require the
Servicer to purchase Trust Student Loans, to reimburse the Issuer as provided
above or to substitute Student Loans pursuant to this Section.
F. The Eligible Lender Trustee shall have no duty to conduct any
affirmative investigation as to the occurrence of any condition requiring the
purchase of any Trust Student Loan or the reimbursement for any interest
penalty pursuant to this Section 3.5.
G. The Servicer shall not be deemed to have breached its obligations
pursuant to Section 3.1, 3.2, 3.3 or 3.4 if it is rendered unable to perform
such obligations, in whole or in part, by a force outside the control of the
parties hereto (including acts of God, acts of war, fires, earthquakes,
hurricanes, floods and other disasters). The Servicer shall diligently perform
its duties under this Agreement as soon as practicable following the
termination of such interruption of business.
SECTION 3.6 Primary Servicing Fee; Carryover Servicing Fee. The Primary
Servicing Fee for each calendar month and any Carryover Servicing Fees payable
on any Distribution Date in arrears by the Issuer shall be equal to the amounts
determined by reference to the schedule of fees attached hereto as Attachment
A. Notwithstanding anything to the contrary contained herein or in any other
Basic Document, the Servicer shall be entitled to receive any Carryover
Servicing Fee on any Distribution Date only if and to the extent that
sufficient funds are available pursuant to Section 2.7.C of the Administration
Agreement.
SECTION 3.7 Access to Certain Documentation and Information Regarding Trust
Student Loans. Upon reasonable prior notice, the Servicer shall provide to the
Administrator and its agents access to the Trust Student Loan Files and shall
permit the Administrator to examine and make copies of, and abstracts from, the
records and books of account of the Servicer relating to the Trust Student
Loans and shall permit the Administrator to undertake periodic site reviews of
the Servicer's operations relating to the servicing of the Trust Student Loans
(including on the premises of any agent of the Servicer). Reasonable access
shall be afforded to the Administrator without charge, but only upon reasonable
request and during the normal business hours at the respective offices of the
Servicer. Nothing in this Section shall affect the obligation of the Servicer
to observe any applicable law prohibiting disclosure of information regarding
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the Obligors and the failure of the Servicer to provide access to information
as a result of such obligation shall not constitute a breach of this
Section.
SECTION 3.8 Servicer Expenses. The Servicer shall be required to pay all
expenses incurred by it in connection with its activities hereunder, including
fees and disbursements of independent accountants, taxes imposed on the
Servicer and expenses incurred in connection with distributions and reports to
the Administrator provided, however, the Carryover Servicing Fee will be
subject to increase agreed to by the Administrator, the Eligible Lender Trustee
and the Servicer to the extent that a demonstrable and significant increase
occurs in the costs incurred by the Servicer in providing the services to be
provided hereunder, whether due to changes in applicable governmental
regulations, Guarantor program requirements or regulations or postal rates.
SECTION 3.9 Appointment of Subservicer. The Servicer may at any time, upon
the written consent of the Administrator, appoint a subservicer to perform all
or any portion of its obligations as Servicer hereunder; provided, however,
that any applicable Rating Agency Condition shall have been satisfied in
connection therewith; provided further that the Servicer shall remain obligated
and be liable to the Issuer, the Eligible Lender Trustee, the Indenture
Trustee, the Certificateholders and the Noteholders for the servicing and
administering of the Trust Student Loans in accordance with the provisions
hereof without diminution of such obligation and liability by virtue of the
appointment of such subservicer and to the same extent and under the same terms
and conditions as if the Servicer alone were servicing and administering the
Trust Student Loans. The fees and expenses of the subservicer shall be as
agreed between the Servicer and its subservicer from time to time and none of
the Issuer, the Eligible Lender Trustee, the Indenture Trustee, the
Certificateholders or the Noteholders shall have any responsibility therefor.
With respect to satisfying the Rating Agency Condition referred to above, the
term "subservicer" shall be deemed not to include systems providers, systems
developers or systems maintenance contractors, collection agencies, credit
bureaus, lock box providers, mail service providers and other similar types of
service providers.
SECTION 3.10 Reports. With respect to Trust Student Loans, Servicer shall
prepare reports and data and furnish the following information to the Issuer,
the Administrator, the Eligible Lender Trustee and the Indenture Trustee,
unless otherwise noted, at the specified times:
(a) The reports and data listed in Attachment C, at the times
indicated in the attachment;
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(b) Within 30 days following the end of each calendar quarter, to
the Department, owner's request for interest and Special
Allowance Payments (ED 799);
(c) To credit bureaus selected by Servicer, credit bureau
reporting in accordance with the Higher Education Act;
(d) At any time the Eligible Lender Trustee or the Indenture
Trustee, as the case may be, shall have reasonable grounds to
believe that such request would be necessary in connection
with its performance of its duties under related documents,
and within five (5) business days of receipt of a request
therefor, the Servicer shall furnish to the Eligible Lender
Trustee or to the Indenture Trustee a list of all Trust
Student Loans (by borrower social security number, type and
outstanding principal balance) and any additional information
requested relating to the Trust Student Loans; and
(e) From time to time as may be reasonably requested, reports and
data providing additional information on the Trust Student
Loans.
SECTION 3.11 Covenants and Agreements of the Issuer, Administrator, Eligible
Lender Trustee and Servicer. The Issuer, the Administrator, the Servicer and
the Eligible Lender Trustee each agree that:
A. Any payment and any communications received at any time by the
Issuer, Administrator and the Eligible Lender Trustee with respect to a Trust
Student Loan shall be immediately transmitted to the Servicer. Such
communications shall include, but not be limited to, requests or notices of
loan cancellation, notices of borrower disqualification, letters, changes in
address or status, notices of death or disability, notices of bankruptcy and
forms requesting deferment of repayment or forbearance.
B. The Servicer may change any part or all of its equipment, data
processing programs and any procedures and forms in connection with the
services performed hereunder so long as Servicer continues to service the Trust
Student Loans in conformance with the requirements herein. The Servicer shall
not make any material change in its servicing system and operations with
respect to the Trust Student Loans without the prior written consent of the
Administrator which consent will not be unreasonably withheld. Each written
request for consent by the Servicer shall be acted upon promptly by the
Administrator. Anything in this paragraph B. to the contrary notwithstanding,
the Servicer will not be required to request the consent of the Administrator
with respect to any changes in the Servicer's servicing system and operations
which the Servicer reasonably
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determines are required due to changes in the Higher Education Act or Guarantor
program requirements.
C. The Eligible Lender Trustee will furnish Servicer with a copy of
any and all Guarantee Agreements relating to the Trust Student Loans serviced
hereunder.
D. The Servicer may and, at the direction of the Administrator, shall
include marketing or informational material generally provided to borrowers of
loans owned by the Student Loan Marketing Association with communications sent
to a borrower.
E. The Servicer may, in its discretion, if requested by a borrower of
a Trust Student Loan, arrange for the sale of such Trust Student Loan to
another lender which holds another student loan of such borrower at a price not
less than the Purchase Amount.
F. The Servicer shall arrange for the sale of a Trust Student Loan to
the Student Loan Marketing Association upon receipt of notice from the Student
Loan Marketing Association that it has received an executed consolidation loan
application from the borrower of such Trust Student Loan. The sale price for
such Trust Student Loan shall equal the Purchase Amount.
SECTION 3.12 Special Programs. The Servicer shall offer borrowers of the
Trust Student Loans all special programs (e.g., Great Rewards(SM), Great
Returns(SM) and Direct Repay), whether or not in existence as of the date of
this Agreement, generally offered to the obligors of comparable loans owned by
the Student Loan Marketing Association and serviced by the Servicer; provided,
however, to the extent any such program is not required by the Higher Education
Act and effectively reduces borrower interest rate or principal balances on the
Trust Student Loans, such special program shall be applied to the Trust Student
Loans only if and to the extent the Issuer receives payment from the Student
Loan Marketing Association (and the Servicer receives notice of such payment)
in an amount sufficient to offset such effective yield reductions. The Student
Loan Marketing Association shall be deemed to be a third party beneficiary of
this Section 3.12 and shall make appropriate arrangements to compensate the
Servicer for increased costs associated with material changes to existing
special programs or the implementation and support of any new special programs.
SECTION 3.13 Financial Statements. The Servicer shall provide to the
Administrator at any time that the Servicer is not an Affiliate of the
Administrator (a) as soon as possible and in no event more than 120 days after
the end of each fiscal year of the Servicer audited financials as at the end of
and for such year
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and (b) as soon as possible and in no event more than 30 days after the end of
each quarterly accounting period of the Servicer unaudited financials as at the
end of and for such period.
SECTION 3.14 Insurance. The Servicer shall maintain or cause to be maintained
insurance with respect to its property and business against such casualties and
contingencies and of such types and in such amounts as is customary in the case
of institutions of the same type and size.
SECTION 3.15 Administration Agreement. The Servicer agrees to perform all
duties required of the Servicer under the Administration Agreement using that
degree of skill and attention that the Servicer exercises with respect to its
comparable business activities.
SECTION 3.16 Lender Identification Number. The Eligible Lender Trustee may
permit trusts, other than the Issuer, established by the Seller to securitize
student loans, to use the Department lender identification number applicable to
the Issuer if the servicing agreements with respect to such other trusts
include provisions substantially similar to this paragraph. In such event, the
Servicer may claim and collect Interest Subsidy Payments and Special Allowance
Payments with respect to Trust Student Loans and student loans in such other
trusts using such common lender identification number. Notwithstanding
anything herein or in the Basic Documents to the contrary, any amounts assessed
against payments (including, but not limited to, Interest Subsidy Payments and
Special Allowance Payments) due from the Department to any such other trust
using such common lender identification number as a result of amounts owing to
the Department from the Issuer will be deemed for all purposes hereof and of
the Basic Documents (including for purposes of determining amounts paid by the
Department with respect to the student loans in the Trust and such other trust)
to have been assessed against the Issuer and shall be deducted by the
Administrator or the Servicer and paid to such other trust from any collections
made by them which would otherwise have been payable to the Collection Account
for the Issuer. Any amounts assessed against payments due from the Department
to the Issuer as a result of amounts owing to the Department from such other
trust using such common lender identification number will be deemed to have
been assessed against such other trust and will be deducted by the
Administrator or the Servicer from any collections made by them which would
otherwise be payable to the collection account for such other trust and paid to
the Issuer.
ARTICLE IV
SECTION 4.1 Representations of Servicer. The Servicer makes the following
representations on which the Issuer is deemed to have relied in acquiring
(through the Eligible Lender Trustee) the
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Trust Student Loans and appointing the Servicer as servicer hereunder. The
representations speak as of the execution and delivery of this Agreement and as
of the Closing Date, but shall survive the sale, transfer and assignment of the
Trust Student Loans to the Eligible Lender Trustee on behalf of the Issuer and
the pledge thereof to the Indenture Trustee pursuant to the Indenture.
A. Organization and Good Standing. The Servicer is duly organized
and validly existing as a corporation chartered under the laws of the State of
Delaware and in good standing under the laws of the State of Delaware, with the
power and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted, and
had at all relevant times, and has, the power, authority and legal right to
service the Trust Student Loans and to hold the Trust Student Loan Files as
custodian.
B. Due Qualification. The Servicer is duly qualified to do business
and has obtained all necessary licenses and approvals in all jurisdictions in
which the ownership or lease of property or the conduct of its business
(including the servicing of the Trust Student Loans as required by this
Agreement) shall require such qualifications.
C. Power and Authority. The Servicer has the power and authority to
execute and deliver this Agreement and to carry out its terms; and the
execution, delivery and performance of this Agreement have been duly authorized
by the Servicer by all necessary action. No registration with or approval of
any governmental agency is required for the due execution and delivery by, and
enforceability against, the Servicer of this Agreement.
D. Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of the Servicer enforceable in accordance with its terms
subject to bankruptcy, insolvency and other similar laws affecting creditors
rights generally and subject to equitable principles.
E. No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof will not conflict
with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time or both) a default under,
the charter or by-laws of the Servicer, or any indenture, agreement or other
instrument to which the Servicer is a party or by which it shall be 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 this Agreement and the other Basic Documents); nor violate any law
or, to the best of the Servicer's knowledge, any order, rule or regulation
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<PAGE> 19
applicable to the Servicer of any court or of any Federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Servicer or its properties.
F. No Proceedings. There are no proceedings or investigations
pending, or, to the Servicer's best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Servicer or its properties: (i) asserting the
invalidity of this Agreement or any of the other Basic Documents to which the
Servicer is a party, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any of the other Basic Documents
to which the Servicer is a party, (iii) seeking any determination or ruling
that could reasonably be expected to have a material and adverse effect on the
performance by the Servicer of its obligations under, or the validity or
enforceability of, this Agreement or any of the other Basic Documents to which
the Servicer is a party, or (iv) relating to the Servicer and which might
adversely affect the Federal or state income tax attributes of the Notes or the
Certificates.
SECTION 4.2 Indemnities of Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement.
The Servicer shall pay for any loss, liability or expense, including
reasonable attorneys' fees, that may be imposed on, incurred by or asserted
against the Issuer or the Eligible Lender Trustee by the Department pursuant to
the Higher Education Act, to the extent that such loss, liability or expense
arose out of, or was imposed upon the Issuer through, the negligence, willful
misfeasance or bad faith of the Servicer in the performance of its obligations
and duties under this Agreement or by reason of the reckless disregard of its
obligations and duties under this Agreement, where the final determination that
any such loss, liability or expense arose out of, or was imposed upon the
Issuer or the Eligible Lender Trustee through, any such negligence, willful
misfeasance, bad faith or recklessness on the part of the Servicer is
established by a court of law, by an arbitrator or by way of settlement agreed
to by the Servicer. Notwithstanding the foregoing, if the Servicer is rendered
unable, in whole or in part, by a force outside the control of the parties
hereto (including acts of God, acts of war, fires, earthquakes, hurricanes,
floods and other disasters) to satisfy its obligations under this Agreement,
the Servicer shall not be deemed to have breached any such obligation upon
delivery of written notice of such event to the other parties hereto, for so
long as the Servicer remains unable to perform such obligation as a result of
such event.
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For purposes of this Section, in the event of the termination of the
rights and obligations of Sallie Mae Servicing Corporation (or any successor
thereto pursuant to Section 4.3) as Servicer pursuant to Section 5.1, or a
resignation by such Servicer pursuant to this Agreement, such Servicer shall be
deemed to be the Servicer pending appointment of a successor Servicer pursuant
to Section 5.2.
Liability of the Servicer under this Section shall survive the
resignation or removal of the Eligible Lender Trustee or the Indenture Trustee
or the termination of this Agreement. If the Servicer shall have made any
payments pursuant to this Section and the Person to or on behalf of whom such
payments are made thereafter collects any of such amounts from others, such
Person shall promptly repay such amounts to the Servicer, without interest.
SECTION 4.3 Merger or Consolidation of, or Assumption of the Obligations of,
Servicer. The Servicer hereby agrees that, upon (a) any merger or
consolidation of the Servicer into another Person, (b) any merger or
consolidation to which the Servicer shall be a party resulting in the creation
of another Person or (c) any Person succeeding to the properties and assets of
the Servicer substantially as a whole, the Servicer shall (i) cause such Person
(if other than the Servicer) to execute an agreement of assumption to perform
every obligation of the Servicer hereunder, (ii) deliver to the Eligible Lender
Trustee and Indenture Trustee an Officers' Certificate and an Opinion of
Counsel each stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section and that all conditions
precedent provided for in this Agreement relating to such transaction have been
complied with, (iii) cause the Rating Agency Condition to have been satisfied
with respect to such transaction and (iv) cure any existing Servicer Default or
any continuing event which, after notice or lapse of time or both, would become
a Servicer Default. Upon compliance with the foregoing requirements, such
Person shall be the successor to the Servicer under this Agreement without
further act on the part of any of the parties to this Agreement.
SECTION 4.4 Limitation on Liability of Servicer. The Servicer shall not be
under any liability to the Issuer, the Noteholders, the Certificateholders, the
Administrator, the Eligible Lender Trustee or the Indenture Trustee except as
provided under this Agreement, for any action taken or for refraining from the
taking of any action pursuant to this Agreement, for errors in judgment, for
any incorrect or incomplete information provided by schools, borrowers,
Guarantors and the Department, for the failure of any party to this Servicing
Agreement or any other Basic Document to comply with its respective obligations
hereunder or under any other Basic Document or for any losses attributable to
the insolvency of any Guarantor; provided, however, that this
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provision shall not protect the Servicer against its obligation to purchase
Student Loans from the Trust pursuant to Section 3.5 hereof or to pay to the
Trust amounts required pursuant to Section 3.5 hereof or against any liability
that would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties under this Agreement. The Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted
by any person respecting any matters arising under this Agreement.
Except as provided in this Agreement, the Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action where it is
not named as a party; provided, however, that the Servicer may undertake any
reasonable action that it may deem necessary or desirable in respect of this
Agreement and the other Basic Documents and the rights and duties of the
parties to this Agreement and the other Basic Documents and the interests of
the Certificateholders and the Noteholders. To the extent that the Servicer is
required to appear in or is made a defendant in any legal action or other
proceeding relating to the servicing of the Trust Student Loans, the Issuer
shall indemnify and hold the Servicer harmless from all cost, liability or
expense of the Servicer not arising out of or relating to the failure of the
Servicer to comply with the terms of this Agreement.
SECTION 4.5 Sallie Mae Servicing Corporation Not To Resign as Servicer.
Subject to the provisions of Section 4.3, Sallie Mae Servicing Corporation
shall not resign from the obligations and duties hereby imposed on it as
Servicer under this Agreement except upon determination that the performance of
its duties under this Agreement are no longer permissible under applicable law.
Notice of any such determination permitting the resignation of Sallie Mae
Servicing Corporation shall be communicated to the Eligible Lender Trustee and
the Indenture Trustee at the earliest practicable time (and, if such
communication is not in writing, shall be confirmed in writing at the earliest
practicable time) and any such determination shall be evidenced by an Opinion
of Counsel to such effect delivered to the Eligible Lender Trustee and the
Indenture Trustee concurrently with or promptly after such notice. No such
resignation shall become effective until the Indenture Trustee or a successor
Servicer shall have assumed the responsibilities and obligations of Sallie Mae
Servicing Corporation in accordance with Section 5.2.
ARTICLE V
SECTION 5.1 Servicer Default. If any one of the following events (a "Servicer
Default") shall occur and be continuing:
(1) any failure by the Servicer (i) to deliver to the Indenture
Trustee for deposit in the Trust Accounts any
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payment required by the Basic Documents to which the
Servicer is a signatory or (ii) in the event that daily
deposits into the Collection Account are not required, to
deliver to the Administrator any payment required by the Basic
Documents, which failure in case of either clause (i) or (ii)
continues unremedied for five Business Days after written
notice of such failure is received by the Servicer from the
Eligible Lender Trustee, the Indenture Trustee or the
Administrator or five Business Days after discovery of such
failure by an officer of the Servicer; or
(2) any failure by the Servicer duly to observe or to perform in
any material respect any other covenant or agreement of the
Servicer set forth in this Agreement or any other Basic
Document to which the Servicer is a signatory, which failure
shall (i) materially and adversely affect the rights of
Noteholders or Certificateholders and (ii) continues
unremedied for a period of 60 days after the date on which
written notice of such failure, requiring the same to be
remedied, shall have been given (A) to the Servicer by the
Indenture Trustee, the Eligible Lender Trustee or the
Administrator or (B) to the Servicer, and to the Indenture
Trustee and the Eligible Lender Trustee by the Noteholders or
Certificateholders, as applicable, representing not less than
25% of the Outstanding Amount of the Notes or not less than
25% of the outstanding Certificate Balance provided, however
any breach of Sections 3.1, 3.2, 3.3 or 3.4 shall not be
deemed a Servicer Default so long as the Servicer is in
compliance with its repurchase and reimbursement obligations
under Section 3.5; or
(3) an Insolvency Event occurs with respect to the Servicer; or
(4) any failure by the Servicer to comply with any requirements
under the Higher Education Act resulting in a loss of its
eligibility as a third-party servicer;
then, and in each and every case, so long as the Servicer Default shall not
have been remedied, either the Indenture Trustee, or the Noteholders of Notes
evidencing not less than 25% of the Outstanding Amount of the Notes, by notice
then given in writing to the Servicer (and to the Indenture Trustee and the
Eligible Lender Trustee if given by the Noteholders) may terminate all the
rights and obligations (other than the obligations set forth in Section 3.5 and
Section 4.2) of the Servicer under this Agreement. As of the effective date of
termination of the Servicer, all authority and power of the Servicer under this
Agreement, whether with respect to the Notes, the Certificates or
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the Trust Student Loans or otherwise, shall, without further action, pass to
and be vested in the Indenture Trustee or such successor Servicer as may be
appointed under Section 5.2. The predecessor Servicer shall cooperate with the
successor Servicer, the Indenture Trustee and the Eligible Lender Trustee in
effecting the termination of the responsibilities and rights of the predecessor
Servicer under this Agreement, including the transfer to the successor Servicer
for administration by it of all cash amounts that shall at the time be held by
the predecessor Servicer for deposit, or shall thereafter be received by it
with respect to a Trust Student Loan. All reasonable costs and expenses
(including attorneys' fees) incurred in connection with transferring the Trust
Student Loan Files to the successor Servicer and amending this Agreement and
any other Basic Documents to reflect such succession as Servicer pursuant to
this Section shall be paid by the predecessor Servicer (other than the
Indenture Trustee acting as the Servicer under this Section 5.1) upon
presentation of reasonable documentation of such costs and expenses. Upon
receipt of notice of the occurrence of a Servicer Default, the Eligible Lender
Trustee shall give notice thereof to the Rating Agencies.
SECTION 5.2 Appointment of Successor.
A. Upon receipt by the Servicer of notice of termination pursuant to
Section 5.1, or the resignation by the Servicer in accordance with the terms of
this Agreement, the predecessor Servicer shall continue to perform its
functions as Servicer under this Agreement, in the case of termination, only
until the date specified in such termination notice or, if no such date is
specified in a notice of termination, until receipt of such notice and, in the
case of resignation, until the Indenture Trustee or a successor Servicer shall
have assumed the responsibilities and duties of Sallie Mae Servicing
Corporation. In the event of the termination hereunder of the Servicer, the
Issuer shall appoint a successor Servicer acceptable to the Indenture Trustee,
and the successor Servicer shall accept its appointment by a written assumption
in form acceptable to the Indenture Trustee. In the event that a successor
Servicer has not been appointed at the time when the predecessor Servicer has
ceased to act as Servicer in accordance with this Section, the Indenture
Trustee without further action shall automatically be appointed the successor
Servicer and the Indenture Trustee shall be entitled to the Servicing Fee and
any Carryover Servicing Fees. Notwithstanding the above, the Indenture Trustee
shall, if it shall be unwilling or legally unable so to act, appoint or
petition a court of competent jurisdiction to appoint any established
institution whose regular business shall include the servicing of student
loans, as the successor to the Servicer under this Agreement; provided,
however, that such right to appoint or to petition for the appointment of any
such successor Servicer shall in no event relieve the Indenture Trustee from
any
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obligations otherwise imposed on it under the Basic Documents until such
successor has in fact assumed such appointment.
B. Upon appointment, the successor Servicer (including the Indenture
Trustee acting as successor Servicer) shall be the successor in all respects to
the predecessor Servicer and shall be subject to all the responsibilities,
duties and liabilities placed on the predecessor Servicer that arise thereafter
or are related thereto and shall be entitled to an amount agreed to by such
successor Servicer (which shall not exceed the Servicing Fee unless the Rating
Agency Condition is satisfied with respect to such compensation arrangements)
and all the rights granted to the predecessor Servicer by the terms and
provisions of this Agreement.
C. The Servicer may not resign unless it is prohibited from serving
as such by law as evidenced by an Opinion of Counsel to such effect delivered
to the Indenture Trustee and the Eligible Lender Trustee. Notwithstanding the
foregoing or anything to the contrary herein or in the other Basic Documents,
the Indenture Trustee, to the extent it is acting as successor Servicer
pursuant hereto and thereto, shall be entitled to resign to the extent a
qualified successor Servicer has been appointed and has assumed all the
obligations of the Servicer in accordance with the terms of this Agreement and
the other Basic Documents.
SECTION 5.3 Notification to Noteholders and Certificateholders. Upon any
termination of, or appointment of a successor to, the Servicer pursuant to this
Article V, the Eligible Lender Trustee shall give prompt written notice thereof
to Certificateholders and the Indenture Trustee shall give prompt written
notice thereof to Noteholders and the Rating Agencies (which, in the case of
any such appointment of a successor, shall consist of prior written notice
thereof to the Rating Agencies).
SECTION 5.4 Waiver of Past Defaults. The Noteholders of Notes evidencing a
majority of the Outstanding Amount of the Notes (or the Certificateholders of
Certificates evidencing not less than a majority of the outstanding Certificate
Balance, in the case of any default which does not adversely affect the
Indenture Trustee or the Noteholders) may, on behalf of all Noteholders and
Certificateholders, waive in writing any default by the Servicer in the
performance of its obligations hereunder and any consequences thereof, except a
default in making any required deposits to or payments from any of the Trust
Accounts (or giving instructions regarding the same) in accordance with this
Agreement. Upon any such waiver of a past default, such default shall cease to
exist, and any Servicer Default arising therefrom shall be deemed to have been
remedied for every purpose of this Agreement and the Administration Agreement.
No such waiver shall extend to any subsequent or other default or impair any
right consequent thereto.
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ARTICLE VI
SECTION 6.1 Amendment.
A. This Agreement may be amended by the Servicer, the Issuer, the
Administrator, the Eligible Lender Trustee and the Indenture Trustee, without
the consent of any of the Noteholders or the Certificateholders, to comply with
any change in any applicable federal or state law, 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; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel delivered to the Eligible Lender Trustee and
the Indenture Trustee, adversely affect in any material respect the interests
of any Noteholder or Certificateholder.
B. This Agreement may also be amended from time to time by the
Servicer, the Issuer, the Administrator, the Eligible Lender Trustee and the
Indenture Trustee, with the consent of the Noteholders of Notes evidencing a
majority of the Outstanding Amount of the Notes and the consent of the
Certificateholders of Certificates (including any Certificates owned by the
Seller) evidencing a majority of the Certificate Balance, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Noteholders or the Certificateholders; 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 with respect to
Trust Student Loans or distributions that shall be required to be made for the
benefit of the Noteholders or the Certificateholders or (b) reduce the
aforesaid percentage of the Outstanding Amount of the Notes and the Certificate
Balance, the Noteholders or the Certificateholders of which are required to
consent to any such amendment, without the consent of all outstanding
Noteholders and Certificateholders.
It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to paragraph B. to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
Promptly after the execution of any amendment to this Agreement (or,
in the case of the Rating Agencies, fifteen days prior thereto), the Eligible
Lender Trustee shall furnish written notification of the substance of such
amendment to each Certificateholder, the Indenture Trustee and each of the
Rating Agencies.
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Prior to the execution of any amendment to this Agreement, the Eligible
Lender Trustee and the Indenture 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 Indenture Trustee may, but
shall not be obligated to, execute and deliver such amendment which affects its
rights, powers, duties or immunities hereunder.
SECTION 6.2 Notices. All notices hereunder shall be given by United States
certified or registered mail, by telegram or by other telecommunication device
capable of creating written record of such notice and its receipt. Notices
hereunder shall be effective when received and shall be addressed to the
respective parties hereto at the addresses set forth below, or at such other
address as shall be designated by any party hereto in a written notice to each
other party pursuant to this section.
If to Servicer, to: Sallie Mae Servicing Corporation
13100 Worldgate Drive, Herndon, Virginia 22070
Director of ABS Administration
If to Issuer, to: SLM Student Loan Trust 1996-3
c/o The Chase Manhattan Bank (USA), 802 Delaware Avenue,
Wilmington, Delaware 19801, Attn: Corporate Trust Dept.
with a copy to: The Chase Manhattan Bank, N.A.
4 Metrotech Center, Brooklyn, New York 11245
Attn: Corporate Trust Dept.
If to the Administrator, to: Student Loan Marketing
Association, 1050 Thomas Jefferson Street, N.W., Washington,
D.C. 20007, Attn: Director, Corporate Finance Operations
If to the Eligible Lender Trustee, to: The Chase
Manhattan Bank (USA), 802 Delaware Avenue, Wilmington,
Delaware 19801, Attn: Corporate Trust Dept.
with a copy to: The Chase Manhattan Bank, N.A.
4 Metrotech Center, Brooklyn, New York 11245
Attn: Corporate Trust Dept.
If to the Indenture Trustee, to: Bankers Trust Company,
Four Albany Street, 10th Floor, New York, New York 10006,
Attn: Corporate Trust and Agency Group, Facsimile No.:
(212) 250-6439
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SECTION 6.3 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, and such counterparts shall
constitute one (1) and the same instrument.
SECTION 6.4 Entire Agreement; Severability. This Agreement constitutes the
entire agreement between the Issuer, the Administrator, the Eligible Lender
Trustee, the Indenture Trustee and Servicer. All prior representations,
statements, negotiations and undertakings with regard to the subject matter
hereof are superseded hereby.
If any term or provision of this Agreement or the application thereof
to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remaining terms and provisions of this Agreement, or the
application of such terms or provisions to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Agreement shall be valid and
enforced to the fullest extent permitted by law.
SECTION 6.5 Governing Law. The terms of this Agreement shall be subject to
all applicable provisions of the Higher Education Act and shall be construed in
accordance with and governed by the laws of the State of New York.
SECTION 6.6 Relationship of Parties. Servicer is an independent contractor
and, except for the services which it agrees to perform hereunder, the Servicer
does not hold itself out as an agent of any other party hereto. Nothing herein
contained shall create or imply an agency relationship among Servicer and any
other party hereto, nor shall this Agreement be deemed to constitute a joint
venture or partnership between the parties.
SECTION 6.7 Captions. The captions used herein are for the convenience of
reference only and not part of this Agreement, and shall in no way be deemed to
define, limit, describe or modify the meanings of any provision of this
Agreement.
SECTION 6.8 Nonliability of Directors, Officers and Employees of Servicer, the
Eligible Lender Trustee, the Indenture Trustee and the Administrator. No
member of the board of directors or any officer, employee or agent of Servicer,
the Administrator, the Eligible Lender Trustee or the Indenture Trustee (or any
Affiliate of any such party) shall be personally liable for any obligation
incurred under this Agreement.
SECTION 6.9 Assignment. This Agreement may not be assigned by the Servicer
except as permitted under Sections 4.3, 4.5 and 5.2 hereof. This Agreement may
not be assigned by the Administrator except as permitted under Sections 4.3 and
4.6 of the Administration Agreement.
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SECTION 6.10 Limitation of Liability of Eligible Lender Trustee and Indenture
Trustee.
A. Notwithstanding anything contained herein to the contrary, this
Agreement has been signed by The Chase Manhattan Bank (USA) not in its
individual capacity but solely in its capacity as Eligible Lender Trustee of
the Issuer and in no event shall The Chase Manhattan Bank (USA) in its
individual capacity or, except as expressly provided in the Trust Agreement, as
Eligible Lender Trustee have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer or the Eligible Lender
Trustee hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto as to all of which recourse shall be had solely to
the assets of the Issuer.
B. Notwithstanding anything contained herein to the contrary, this
Agreement has been signed by Bankers Trust Company not in its individual
capacity but solely as Indenture Trustee and in no event shall Bankers Trust
Company have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed on their behalf by their duly authorized officers as of July
9, 1996.
SALLIE MAE SERVICING CORPORATION
By: /s/ Marianne M. Keler
------------------------------
Name:
----------------------------
Title:
---------------------------
STUDENT LOAN MARKETING ASSOCIATION, as Administrator
By: /s/ Robert R. Levine
------------------------------
Name:
----------------------------
Title:
---------------------------
SLM STUDENT LOAN TRUST 1996-3 by The Chase Manhattan Bank (USA)
not in its individual capacity but solely as Eligible Lender Trustee
By: /s/ John W. Mack
-----------------------------
Name: John W. Mack
Title: Second Vice President
THE CHASE MANHATTAN BANK (USA) not in its individual capacity but solely as
Trustee under a Trust Agreement dated July 1, 1996 between SLM Funding
Corporation and the Chase Manhattan Bank (USA)
By: /s/ John W. Mack
-----------------------------
Name: John W. Mack
Title: Second Vice President
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BANKERS TRUST COMPANY, not in its individual capacity but solely as Indenture
Trustee under an Indenture dated July 1, 1996 between SLM Student Loan Trust
1996-3 and Bankers Trust Company.
By: /s/ Lara Graff
-----------------------------
Name: Lara Graff
Title: Assistant Vice President
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ATTACHMENT A
SCHEDULE OF FEES
The Servicer will receive a Primary Servicing Fee and a
Carryover Servicing Fee (together, the "Servicing Fee"). The "Primary
Servicing Fee" for any month (except for the period from the Closing Date to
and including July 31, 1996) is an amount equal to the lesser of (i) the Unit
Amount and (ii) 1/12th of 1.17% of the outstanding principal amount of the
Trust Student Loans, in each case as of the last day of the preceding calendar
month, plus any such amounts from prior Monthly Servicing Payment Dates that
remain unpaid. The "Unit Amount" for any month is equal to $4.71 times the
number of accounts in the Trust during such month. The Primary Servicing Fee
will be payable out of Available Funds and amounts on deposit in the Reserve
Account on the 25th day of each month (or, if any such date is not a business
day, on the next succeeding business day), commencing August 26, 1996 (each, a
"Monthly Servicing Payment Date"). The "Carryover Servicing Fee" is the sum of
(a) the amount, if any, as of any Monthly Servicing Payment Date by which (i)
1/12th of 1.17% of the outstanding principal amount of the Trust Student Loans
exceeds (ii) the Unit Amount, in each case as of the last day of the preceding
calendar month, (b) the amount of increases in the costs incurred by the
Servicer which are agreed to pursuant to Section 3.8 of the Servicing
Agreement, (c) any Conversion Fees, Transfer Fees and Removal Fees (as defined
below) incurred since the last Distribution Date and (d) any amounts described
in (a), (b) and (c) above that remain unpaid from prior Distribution Dates.
The Carryover Servicing Fee will be payable to the Servicer on each succeeding
Distribution Date out of Available Funds after payment on such Distribution
Date of the Primary Servicing Fee, the Administration Fee, the Noteholders'
Distribution Amount, the Certificateholders' Distribution Amount, and the
amount, if any, necessary to be deposited in the Reserve Account to reinstate
the balance thereof to the Specified Reserve Account Balance. The Servicer
shall receive a pro rata portion of the Primary Servicing Fee and the Carryover
Servicing Fee for the period from the Closing Date to and including July 31,
1996.
Servicer will be paid a fee ("Conversion Fee") for any
Student Loan added to the Trust Estate which Student Loan is not serviced on
the Servicer's system unless such Student Loan is being substituted into the
Trust Estate by the Servicer pursuant to Section 3.5 of this Agreement. The
Conversion Fee is equal to the greater of $17.00 per account or the Servicer's
verifiable costs plus 15%.
Servicer will be paid a fee ("Transfer Fee") for any
Student Loan transferred in or out of the Trust Estate which is at the
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time of transfer being serviced on the Servicer's system (regardless of the
owner) unless such Student Loans are being removed or added to the Trust in
order to comply with the Servicer's purchase/substitution obligation under
Section 3.5 of this Agreement. The Transfer Fee is equal to $4.00 per account
transaction.
Servicer will be paid a fee ("Removal Fee") for performing
all activities required to remove a Trust Student Loan from the Servicer's
system to another servicer unless such Trust Student Loan is being removed due
to the termination of the Servicer pursuant to Section 5.1 of this Agreement.
The Removal Fee is equal to $10.00 per account plus any verifiable direct
expenses incurred for shipping such Trust Student Loan to the new servicer.
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ATTACHMENT B
Loan Servicing Center/Florida
P.O. Box 2975
Panama City, Florida 32402-2975
(904) 271-9207
Loan Servicing Center/Kansas
P.O. Box 309
Lawrence, Kansas 66044
(913) 841-0234
Loan Servicing Center/New England
135 Beaver Street
Waltham, Massachusetts 02154
(617) 893-9522
Loan Servicing Center/Pennsylvania
220 Lasley Avenue
Hanover Industrial Estates
Wilkes-Barre, Pennsylvania 18706
(717) 821-3600
Loan Servicing Center/Texas
777 Twin Creek Drive
Killeen, Texas 76543
(817) 554-4500
Loan Servicing Center/Washington
107 South Harvard Street
Spokane, Washington 99204
(509) 455-9224
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ATTACHMENT C
REPORTS
<TABLE>
<S> <C>
1. CLASS Report 800 - Monthly activity summary report
2. CLASS Report 801 - Monthly average/ending balance report
3. CLASS Report 802 - Monthly activity detail
4. CLASS Report 803 - Monthly conversion/removal summary
5. CLASS Report 807 - Monthly delinquency aging report
6. CLASS Report 810 - Monthly characteristics summary
7. CLASS Report 866 - Monthly average/ending balance offset fee report
8. CLASS Report 882 - Great Rewards/Direct Repay Report
9. Monthly Cash Reconciliation Report
10. Quarterly ED799 billing (prepared from CLASS Reports 824, 825, 827, 828 and 829; supporting detail CLASS Reports
865, 868, 870 and 871; and the OE799 SAS library)
11. Portfolio Characteristics, Financial Activity, Quarterly calculation of Accrued Interest to be capitalized,
Delinquency Detail and Claims extracts.
</TABLE>
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