EXHIBIT 4.1
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AMENDED AND RESTATED TRUST AGREEMENT
between
SLM FUNDING LLC,
as Depositor
and
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Eligible Lender Trustee
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but solely
as Indenture Trustee
Dated as of October 20, 2004
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TABLE OF CONTENTS
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ARTICLE I
SECTION 1.1 Definitions and Usage................................................................... 1
ARTICLE II ORGANIZATION
SECTION 2.1 Creation of Trust; Name................................................................. 1
SECTION 2.2 Office ................................................................................. 1
SECTION 2.3 Purposes and Powers..................................................................... 1
SECTION 2.4 Appointment of Eligible Lender Trustee.................................................. 2
SECTION 2.5 Initial Capital Contribution of Trust Estate............................................ 2
SECTION 2.6 Declaration of Trust.................................................................... 2
SECTION 2.7 Liability of the Excess Distribution Certificateholder.................................. 3
SECTION 2.8 Title to Trust Property................................................................. 3
SECTION 2.9 Representations, Warranties and Covenants of the Depositor.............................. 3
SECTION 2.10 Intentionally Omitted.................................................................. 4
SECTION 2.11 Authorization of Depositor............................................................. 4
ARTICLE III BENEFICIAL OWNERSHIP AND EXCESS DISTRIBUTION CERTIFICATE
SECTION 3.1 Initial Beneficial Ownership............................................................ 4
SECTION 3.2 Corporate Trust Office.................................................................. 4
SECTION 3.3 The Excess Distribution Certificate..................................................... 4
ARTICLE IV ACTIONS BY ELIGIBLE LENDER TRUSTEE
SECTION 4.1 Prior Notice to the Excess Distribution Certificateholder With Respect to Certain
Matters....................................................................... 9
SECTION 4.2 Action with Respect to Sale of the Trust Student Loans.................................. 10
SECTION 4.3 Action with Respect to Bankruptcy....................................................... 10
SECTION 4.4 Restrictions............................................................................ 10
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Application of Trust Funds.............................................................. 10
SECTION 5.2 Method of Payment....................................................................... 11
SECTION 5.3 No Segregation of Moneys; No Interest................................................... 11
SECTION 5.4 Reports to the Excess Distribution Certificateholder, the Internal Revenue Service
and Others.................................................................... 11
SECTION 5.5 Intentionally Omitted................................................................... 11
SECTION 5.6 Intentionally Omitted................................................................... 11
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ARTICLE VI AUTHORITY AND DUTIES OF ELIGIBLE LENDER TRUSTEE
SECTION 6.1 General Authority....................................................................... 11
SECTION 6.2 General Duties.......................................................................... 12
SECTION 6.3 Action upon Instruction................................................................. 12
SECTION 6.4 No Duties Except as Specified in this Agreement or in Instructions...................... 13
SECTION 6.5 No Action Except Under Specified Documents or Instructions.............................. 14
SECTION 6.6 Restrictions............................................................................ 14
ARTICLE VII CONCERNING THE ELIGIBLE LENDER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties......................................................... 14
SECTION 7.2 Intentionally Omitted................................................................... 15
SECTION 7.3 Representations and Warranties.......................................................... 15
SECTION 7.4 Reliance; Advice of Counsel............................................................. 16
SECTION 7.5 Not Acting in Individual Capacity....................................................... 16
SECTION 7.6 Eligible Lender Trustee Not Liable for Excess Distribution Certificate or Trust
Student Loans................................................................. 17
SECTION 7.7 Eligible Lender Trustee May Own Notes................................................... 17
ARTICLE VIII COMPENSATION AND INDEMNITY OF ELIGIBLE LENDER TRUSTEE
SECTION 8.1 Eligible Lender Trustee's Fees and Expenses............................................. 17
SECTION 8.2 Payments to the Eligible Lender Trustee................................................. 17
SECTION 8.3 Indemnity............................................................................... 18
ARTICLE IX TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement.......................................................... 18
ARTICLE X SUCCESSOR ELIGIBLE LENDER TRUSTEES AND ADDITIONAL ELIGIBLE LENDER TRUSTEES
SECTION 10.1 Eligibility Requirements for Eligible Lender Trustee................................... 18
SECTION 10.2 Resignation or Removal of Eligible Lender Trustee...................................... 19
SECTION 10.3 Successor Eligible Lender Trustee...................................................... 19
SECTION 10.4 Merger or Consolidation of Eligible Lender Trustee..................................... 20
SECTION 10.5 Appointment of Co-Eligible Lender Trustee or Separate Eligible Lender Trustee.......... 20
ARTICLE XI MISCELLANEOUS
SECTION 11.1 Supplements and Amendments............................................................. 22
SECTION 11.2 No Legal Title to Trust Estate in Excess Distribution Certificateholder................ 22
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SECTION 11.3 Limitations on Rights of Others........................................................ 23
SECTION 11.4 Notices................................................................................ 23
SECTION 11.5 Severability........................................................................... 23
SECTION 11.6 Separate Counterparts.................................................................. 23
SECTION 11.7 Successors and Assigns................................................................. 23
SECTION 11.8 No Petition............................................................................ 23
SECTION 11.9 No Recourse............................................................................ 24
SECTION 11.10 Headings.............................................................................. 24
SECTION 11.11 Governing Law......................................................................... 24
Exhibit A Form of Excess Distribution Certificate
Exhibit B Form of Certificate of Trust
Exhibit C Form of Transferor Letter
Exhibit D-1 Form of Transferee Letter (Non-Rule 144A)
Exhibit D-2 Form of Transferee Letter (Rule 144A)
Appendix A Definitions and Usage
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AMENDED AND RESTATED TRUST AGREEMENT dated as of October 20, 2004, between
SLM FUNDING LLC, a Delaware limited liability company, as the Depositor, and
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, a national banking association,
not in its individual capacity but solely as the Eligible Lender Trustee.
WITNESSETH:
The Depositor and the Eligible Lender Trustee are parties to the trust
agreement dated as of September 27, 2004 (the "Short-Form Trust Agreement")
pursuant to which a trust known as "SLM Student Loan Trust 2004-10" was
established;
The Depositor, the Indenture Trustee and the Eligible Lender Trustee
desire to amend and restate the Short-Form Trust Agreement upon the terms and
conditions set forth herein as follows:
ARTICLE I
SECTION 1.1 Definitions and Usage. Except as otherwise specified herein or
as the context may otherwise require, capitalized terms used but not otherwise
defined herein are defined in Appendix A hereto, which also contains rules as to
usage that shall be applicable herein.
ARTICLE II
Organization
SECTION 2.1 Creation of Trust; Name. There is hereby created a Trust which
shall be known as "SLM Student Loan Trust 2004-10", in which name the Eligible
Lender Trustee may conduct the business of the Trust, make and execute contracts
and other instruments on behalf of the Trust and xxx and be sued. The Trust
shall constitute a statutory trust within the meaning of Section 3801(a) of the
Delaware Statutory Trust Act for which the Eligible Lender Trustee has filed a
certificate of trust with the Secretary of State of the State of Delaware
pursuant to Section 3810(a) of the Delaware Statutory Trust Act.
SECTION 2.2 Office. The office of the Trust shall be in care of the
Eligible Lender Trustee at its Corporate Trust Office or at such other address
as the Eligible Lender Trustee may designate by written notice to the Depositor.
SECTION 2.3 Purposes and Powers. The purpose of the Trust is to engage in
the following activities:
(i) to issue the Notes pursuant to the Indenture and the Excess
Distribution Certificate pursuant to this Agreement and to sell the Notes
in one or more transactions;
(ii) with the proceeds of the sale of the Notes, to fund the Reserve
Account pursuant to Section 2.9 of the Administration Agreement, to fund
the Capitalized Interest Account pursuant to Section 2.10(a) of the
Administration Agreement, to fund the Pre-Funding Account pursuant to
Section 2.10(l) of the Administration Agreement, to make
the Collection Account Initial Deposit, to purchase the Initial Trust
Student Loans on the Closing Date and any Additional Trust Student Loans
during the Funding Period, in each case pursuant to the Sale Agreement,
and to make the upfront payment pursuant to the Interest Rate Cap
Agreement;
(iii) to Grant the Trust Estate to the Indenture Trustee pursuant to
the Indenture, and to hold, manage and distribute to the Excess
Distribution Certificateholder 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 (including any agreements representing Eligible Repurchase
Obligations) to which it is to be a party, including, but not limited to,
making the required payments set forth under the Swap Agreements;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation
of the Trust Estate and the making of distributions to the Noteholders and
the others specified in Sections 2.7 and 2.8 of the Administration
Agreement.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the other Basic Documents.
SECTION 2.4 Appointment of Eligible Lender Trustee. The Depositor hereby
appoints the Eligible Lender Trustee as trustee of the Trust, effective as of
the date hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Trust Estate. The Depositor
hereby sells, assigns, transfers, conveys and sets over to the Eligible Lender
Trustee, as of the date hereof, the sum of $100.00. The Eligible Lender Trustee
hereby acknowledges receipt in trust from the Depositor, as of the date hereof,
of the foregoing contribution, which shall constitute the Initial Trust Estate
and shall be deposited in the Collection Account. The Depositor shall pay the
organizational expenses of the Trust as they may arise or shall, upon the
request of the Eligible Lender Trustee, promptly reimburse the Eligible Lender
Trustee for any such expenses paid by the Eligible Lender Trustee.
SECTION 2.6 Declaration of Trust. The Eligible Lender Trustee hereby
declares that it will hold the Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Excess Distribution
Certificateholder, subject to the obligations of the Trust under the other Basic
Documents. It is the intention of the parties hereto that the Trust constitute a
statutory trust under Delaware law and that this Agreement constitute the
governing instrument of such trust. Effective as of the date hereof, the
Eligible Lender Trustee shall have all rights, powers and duties set forth
herein with respect to accomplishing the purposes of the Trust.
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SECTION 2.7 Liability of the Excess Distribution Certificateholder. No
Excess Distribution Certificateholder (in such capacity) shall have any personal
liability for any liability or obligation of the Trust.
SECTION 2.8 Title to Trust Property. Legal title to all of the Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Trust Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in the Eligible Lender Trustee, a co-trustee and/or
a separate trustee, as the case may be; provided that legal title to the Trust
Student Loans shall be vested at all times in the Eligible Lender Trustee on
behalf of the Trust.
SECTION 2.9 Representations, Warranties and Covenants of the Depositor.
The Depositor hereby represents, warrants and covenants to the Eligible Lender
Trustee as follows:
(a) The Depositor is duly organized and validly existing as a Delaware
limited liability company in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is presently
conducted.
(b) The Depositor has the power and authority to execute and deliver this
Agreement and to carry out its terms; the Depositor has full power and authority
to sell and assign the property to be sold and assigned to and deposited with
the Trust (or with the Eligible Lender Trustee on behalf of the Trust) and the
Depositor has duly authorized such sale and assignment and deposit to the Trust
(or to the Eligible Lender Trustee on behalf of the Trust) by all necessary
action; and the execution, delivery and performance of this Agreement has been
duly authorized by the Depositor by all necessary action.
(c) This Agreement constitutes a legal, valid and binding obligation of
the Depositor enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and similar laws relating to creditors'
rights generally and subject to general principles of equity.
(d) The consummation of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof do not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, the Certificate of Formation
or operating agreement of the Depositor, or any indenture, agreement or other
instrument to which the Depositor is a party or by which it is bound; nor result
in the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); nor violate any law or, to the Depositor's
knowledge, any order, rule or regulation applicable to the Depositor of any
court or of any Federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or its
properties.
(e) The Depositor agrees for the benefit of the Noteholders and the Excess
Distribution Certificateholder that it will comply with each of the requirements
set forth in the Certificate of Formation and its operating agreement.
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SECTION 2.10 Intentionally Omitted.
SECTION 2.11 Authorization of the Depositor. The Depositor is authorized
and directed to execute on behalf of the Issuer, and, after execution, to
deliver to the Administrator for filing with the Commission, all documents and
forms required to be filed in accordance with applicable law or the rules and
regulations prescribed by the Commission.
ARTICLE III
Beneficial Ownership and
Excess Distribution Certificate
SECTION 3.1 Initial Beneficial Ownership. Upon the formation of the Trust
by the contribution by the Depositor pursuant to Section 2.5 and until the
issuance of the Excess Distribution Certificate, the Depositor shall be the sole
beneficial owner of the Trust.
SECTION 3.2 Corporate Trust Office. The Eligible Lender Trustee initially
designates Christiana Center/OPS4, 000 Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx
00000, as its principal Corporate Trust Office, at which it shall act as Trustee
of the Trust. The Excess Distribution Certificate Registrar's New York office
and its authenticating agent's office are located at:
Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx, 00xx Xxxxx
Mailstop NYC60-2606
Xxx Xxxx, Xxx Xxxx 00000
Attn: Trust & Securities Services/Structured Finance Services
Telephone: (000) 000-0000
Facsimile: (212) 797 -8606
SECTION 3.3 The Excess Distribution Certificate.
(a) General. The Excess Distribution Certificate shall be issued in one or
more registered, definitive physical certificates substantially in the form of
Exhibit A hereto, in minimum percentage interests of at least 10% and integral
multiples of 10% in excess thereof. The Excess Distribution Certificate shall
receive payments as provided in Sections 2.8(p) and 2.9(f), as applicable, of
the Administration Agreement. The Excess Distribution Certificate shall be
executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Eligible Lender Trustee. An Excess Distribution
Certificate bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Trust, shall be valid and binding obligations of the Trust, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the authentication and delivery of such Excess Distribution Certificate or
did not hold such offices at the date of authentication and delivery of such
Excess Distribution Certificate.
(b) Authentication. Concurrently with the sale of the Trust Student Loans
to the Trust pursuant to the Sale Agreement, the Eligible Lender Trustee shall
cause the Excess Distribution
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Certificate to be executed on behalf of the Trust, authenticated and delivered
to or upon the written order of the Depositor, signed by its president or any
vice president, without further action by the Depositor. For all purposes
hereunder, the Depositor shall be the Excess Distribution Certificateholder. No
Excess Distribution Certificate shall entitle its holder to any benefit under
this Agreement, or shall be valid for any purpose, unless there shall appear on
such Excess Distribution Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Eligible
Lender Trustee or JPMorgan Chase Bank, as the Eligible Lender Trustee's
authenticating agent, by manual signature; such authentication shall constitute
conclusive evidence that such Excess Distribution Certificate shall have been
duly authenticated and delivered hereunder. The Excess Distribution Certificate
shall be dated the date of its authentication. No further Excess Distribution
Certificates shall be issued except pursuant to paragraph (c) or (d) below.
(c) Registration of Transfer and Exchange. The Excess Distribution
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to paragraph (f) below, the Excess Distribution Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Eligible Lender Trustee shall provide for the registration of the Excess
Distribution Certificate and of transfers and exchanges of the Excess
Distribution Certificate as herein provided. Deutsche Bank Trust Company
Americas shall be the initial Excess Distribution Certificate Registrar.
Upon surrender for registration of transfer of the Excess Distribution
Certificate at the office or agency maintained pursuant to paragraph (f) below,
the Eligible Lender Trustee shall execute, authenticate and deliver (or shall
cause JPMorgan Chase Bank as its authenticating agent to authenticate and
deliver), in the name of the designated transferee, a new Excess Distribution
Certificate dated the date of authentication by the Eligible Lender Trustee or
any authenticating agent. At the option of the Excess Distribution
Certificateholder, the Excess Distribution Certificate may be exchanged for
another Excess Distribution Certificate upon surrender of the Excess
Distribution Certificate to be exchanged at the office or agency maintained
pursuant to paragraph (f) below.
An Excess Distribution Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Eligible Lender Trustee and
the Excess Distribution Certificate Registrar duly executed by the holder
thereof or his attorney duly authorized in writing, with such signature (other
than for transfers or exchanges to or among any Affiliates of the Depositor)
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company. An Excess Distribution Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Eligible Lender Trustee in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of the Excess Distribution Certificate, but the Eligible Lender Trustee
or the Excess Distribution Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of the Excess Distribution Certificate.
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The preceding provisions of this Section notwithstanding, the Eligible
Lender Trustee shall not be required to make and the Excess Distribution
Certificate Registrar need not register transfers or exchanges of the Excess
Distribution Certificate for a period of 15 days preceding any Distribution Date
with respect to the Excess Distribution Certificate.
The Excess Distribution Certificate (including any beneficial interest
therein) may not be acquired by or for the account of (i) any Benefit Plan
subject to Title I of ERISA and/or Section 4975 of the Code, if such
acquisition, or the management or servicing of the Trust or its assets, would
cause a non-exempt prohibited transaction in violation of Section 406 of ERISA
and/or Section 4975 of the Code, (ii) any Benefit Plan subject to a
substantially similar federal, state, local or foreign law, if such acquisition
would cause a non-exempt violation of such substantially similar law, (iii) any
person who is not a United States person within the meaning of Section
7701(a)(30) of the Code, or (iv) any "pass-thru entity" referred to in Section
1(h)(10)(D), (E) or (F) of the Code, the income of which pass-thru entity is
includible by any person referred to in clause (iii) above. By accepting and
holding the Excess Distribution Certificate, the holder hereof shall be deemed
to have represented and warranted that it is not acquiring the Excess
Distribution Certificate by or for the account of any entity in violation of the
above restrictions, and to have agreed that if such restrictions are violated,
the holder will promptly dispose of the Excess Distribution Certificate.
(d) Mutilated, Destroyed, Lost or Stolen Excess Distribution Certificate.
If (1) a mutilated Excess Distribution Certificate shall be surrendered to the
Excess Distribution Certificate Registrar, or if the Excess Distribution
Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of the Excess Distribution Certificate, and (2) there
shall be delivered to the Excess Distribution Certificate Registrar and the
Eligible Lender Trustee such security or indemnity as may be required by them to
save each of them and the Trust harmless, then in the absence of notice that
such Excess Distribution Certificate shall have been acquired by a bona fide
purchaser, the Eligible Lender Trustee, on behalf of the Trust, shall execute
and the Eligible Lender Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Excess Distribution
Certificate, a new Excess Distribution Certificate of like tenor. In connection
with the issuance of any new Excess Distribution Certificate under this Section,
the Eligible Lender Trustee and the Excess Distribution Certificate Registrar
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Excess Distribution Certificate issued pursuant to this paragraph shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Excess Distribution
Certificate shall be found at any time.
(e) Persons Deemed Owners. Prior to due presentation of the Excess
Distribution Certificate for registration of transfer, the Eligible Lender
Trustee and the Excess Distribution Certificate Registrar and any agent of
either of them may treat the Person in whose name the Excess Distribution
Certificate shall be registered in the Excess Distribution Certificate Register
as the owner of such Excess Distribution Certificate for the purpose of
receiving distributions thereon and for all other purposes whatsoever, and
neither the Eligible Lender Trustee, the Excess Distribution Certificate
Registrar nor any agent thereof shall be bound by any notice to the contrary.
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(f) Maintenance of Office or Agency. The Eligible Lender Trustee shall
maintain in the Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where the Excess Distribution Certificate may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Eligible Lender Trustee in respect of the Excess
Distribution Certificate may be served.
(g) Appointment of Excess Distribution Certificate Paying Agent. The
Excess Distribution Certificate Paying Agent shall make distributions to the
Excess Distribution Certificateholder from the amounts received from the
Indenture Trustee pursuant to Sections 2.8(p) and 2.9(f) of the Administration
Agreement and shall report the amounts of such distributions to the Indenture
Trustee (if the Excess Distribution Certificate Paying Agent is not the
Indenture Trustee). Any Excess Distribution Certificate Paying Agent shall have
the revocable power to receive such funds from the Indenture Trustee for the
purpose of making the distributions referred to above. The Eligible Lender
Trustee may revoke such power and remove the Excess Distribution Certificate
Paying Agent if the Eligible Lender Trustee determines in its sole discretion
that the Excess Distribution Certificate Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect. The Excess
Distribution Certificate Paying Agent shall initially be the Indenture Trustee,
and any co-paying agent chosen by the Eligible Lender Trustee and consented to
by the Administrator (which consent shall not be unreasonably withheld). The
Indenture Trustee shall be permitted to resign as Excess Distribution
Certificate Paying Agent upon 30 days' written notice to the Eligible Lender
Trustee. In the event that the Indenture Trustee shall no longer be the Excess
Distribution Certificate Paying Agent, the Eligible Lender Trustee shall appoint
a successor to act as Excess Distribution Certificate Paying Agent (which shall
be a bank or trust company). The Eligible Lender Trustee shall cause such
successor Excess Distribution Certificate Paying Agent or any additional Excess
Distribution Certificate Paying Agent appointed by the Eligible Lender Trustee
to execute and deliver to the Eligible Lender Trustee an instrument in which
such successor Excess Distribution Certificate Paying Agent or additional Excess
Distribution Certificate Paying Agent shall agree with the Eligible Lender
Trustee that as Excess Distribution Certificate Paying Agent, such successor
Excess Distribution Certificate Paying Agent or additional Excess Distribution
Certificate Paying Agent will hold all sums, if any, held by it for payment to
the Excess Distribution Certificateholder in trust for the benefit of such
holder until such sums shall be paid to such holder. The Excess Distribution
Certificate Paying Agent shall return all unclaimed funds to the Eligible Lender
Trustee and upon removal of an Excess Distribution Certificate Paying Agent such
Excess Distribution Certificate Paying Agent shall also return all funds in its
possession to the Eligible Lender Trustee. The provisions of Articles VII and
VIII of the Indenture shall apply to the Indenture Trustee also in its role as
Excess Distribution Certificate Paying Agent, for so long as the Indenture
Trustee shall act as Excess Distribution Certificate Paying Agent and, to the
extent applicable, to any other paying agent appointed hereunder. Any reference
in this Agreement to the Excess Distribution Certificate Paying Agent shall
include any co-paying agent unless the context requires otherwise.
(h) Restrictions on Transfer of the Excess Distribution Certificate.
(i) The Excess Distribution Certificate may be transferred to any
Affiliate of the Depositor, without any requirement to provide any
officer's certificates or legal
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opinions that would otherwise be required if such proposed transfer was
being made to a Person who is not an Affiliate of the Depositor.
(ii) Except as provided above, the Excess Distribution Certificate
shall not be sold, pledged, transferred or assigned except as provided
below:
(A) The Excess Distribution Certificate has not been
registered or qualified under the Securities Act of 1933, as amended (the
"Securities Act") or any state securities law. No transfer, sale, pledge
or other disposition of the Excess Distribution Certificate or any
interest therein shall be made unless such transfer is made pursuant to an
effective registration statement under the Securities Act and effective
registration or qualification under applicable state securities laws, or
is made in a transaction which does not require such registration or
qualification. In the event that a transfer is to be made without
registration or qualification, the Eligible Lender Trustee shall require,
in order to assure compliance with such laws, that the prospective
transferor and transferee each certify to the Eligible Lender Trustee, the
Excess Distribution Certificate Registrar, the Administrator, and, if it
is not the proposed transferor, the Depositor, in writing, the facts
surrounding the transfer. Such certifications shall be substantially in
the forms of Exhibit C hereto and Exhibit D-1 or D-2 hereto, as
applicable. In the event that such a transfer is to be made within two
years from the date of the initial issuance of the Excess Distribution
Certificate pursuant hereto (other than a transfer as to which the
proposed transferee has provided a certificate in the form of Exhibit
D-2), the Eligible Lender Trustee in its sole discretion, may require that
there shall also be delivered to the Eligible Lender Trustee, the Excess
Distribution Certificate Registrar, the Administrator, or, if it is not
the proposed transferor, the Depositor, at the expense of the transferor,
an opinion of counsel that such transfer may be made pursuant to an
exemption from the Securities Act and such state securities laws. Any such
opinion of counsel shall not be an expense of the Eligible Lender Trustee,
the Excess Distribution Certificate Registrar, the Administrator, and, if
it is not the proposed transferor, the Depositor. None of the Depositor,
the Administrator or the Eligible Lender Trustee is obligated to register
or qualify the Excess Distribution Certificate under the Securities Act or
any other securities law or to take any action not otherwise required
under this Agreement to permit the transfer of the Excess Distribution
Certificate without registration or qualification. Any such Excess
Distribution Certificateholder desiring to effect such transfer shall, and
does hereby agree to, indemnify the Eligible Lender Trustee, the Excess
Distribution Certificate Registrar, the Administrator, and, if it is not
the proposed transferor, the Depositor, against any liability that may
result if the transfer is not so exempt or is made in accordance with such
applicable federal and state laws.
(B) No transfer of the Excess Distribution Certificate will be
registered by the Eligible Lender Trustee or the Excess Distribution
Certificate Registrar unless the Eligible Lender Trustee, the Excess
Distribution Certificate Registrar, the Administrator, and, if it is not
the proposed transferor, the Depositor receives a representation from the
proposed transferee of the Excess Distribution Certificate, substantially
in the form of Exhibit D-1 or D-2, as the case may be, that such
transferee is not acquiring the Excess Distribution Certificate by or for
the account of any entity in violation of the restrictions
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set forth in the final paragraph of Section 3.3(c) above. If any proposed
transferee shall become an Excess Distribution Certificateholder in
violation of these provisions, then the last preceding permitted
transferee shall be restored, to the extent permitted by law, to all
rights as Excess Distribution Certificateholder, retroactive to the date
of registration of such transfer of the Excess Distribution Certificate.
Neither the Eligible Lender Trustee nor the Excess Distribution
Certificate Registrar shall have any liability to any person for any
registration or transfer of the Excess Distribution Certificate that is
not permitted or for making any payments due on the Excess Distribution
Certificate to the holder thereof or for taking any action with respect to
such holder under this Agreement. Any proposed transferee who becomes an
Excess Distribution Certificateholder shall agree to indemnify the
Eligible Lender Trustee, the Excess Distribution Certificate Registrar,
any Swap Counterparty, the Administrator, and, if it is not the proposed
transferor, the Depositor, against any loss, damage or penalty incurred as
a result of the transfer of the Excess Distribution Certificate to such
proposed transferee in violation of such restrictions.
(C) The prospective transferee shall be aware that the Excess
Distribution Certificate shall bear legends referring to the restrictions
contained in sub-clauses (A) and (B) above and by its acceptance of the
Excess Distribution Certificate agrees to abide by such restrictions.
(D) The prospective transferee shall deliver an opinion of
counsel addressed to the Eligible Lender Trustee, any Swap Counterparty,
the Administrator, and, if it is not the proposed transferor, the
Depositor, to the effect that, (1) as a matter of federal income tax law,
such prospective transferee is permitted to accept the transfer of the
Excess Distribution Certificate, (2) such transfer or pledge would not
jeopardize the tax treatment of the Trust, (3) such transfer or pledge
would not subject the Trust to any entity-level tax, (4) such transfer or
pledge would not jeopardize the status of the Notes as debt for all
purposes, and (5) such pledge or transfer would not cause the Trust to be
treated, for federal income tax purposes, as an association or a publicly
traded partnership taxable as a corporation.
(E) No pledge or transfer of the Excess Distribution
Certificate shall be effective unless such purchase or transfer is to a
single beneficial owner.
(iii) Any Excess Distribution Certificateholder, as evidenced by its
agreement to accept the rights conferred under the Excess Distribution
Certificate, is hereby deemed to accept all obligations of the Depositor
under this Agreement.
ARTICLE IV
Actions by Eligible Lender Trustee
SECTION 4.1 Prior Notice to the Excess Distribution Certificateholder 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 Excess
Distribution Certificateholder and each of the Rating Agencies in writing of the
proposed action and the Excess Distribution Certificateholder shall
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not have notified the Eligible Lender Trustee in writing prior to the 30th
calendar day after such notice is given that it has withheld consent or provided
alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the
Trust Student Loans) and the compromise of any material action,
claim or lawsuit brought by or against the Trust (except with
respect to the aforementioned claims or lawsuits for collection of
Trust Student Loans);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any class of Noteholders is
required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any class of Noteholder is not
required and such amendment materially adversely affects the
interests of the Excess Distribution Certificateholder; or
(d) the amendment of the Interest Rate Cap Agreement or any Swap
Agreement in circumstances where the consent of any class of
Noteholders is required or in circumstances where the consent of
Noteholders is not required but where such amendment materially
adversely affects the interests of the Excess Distribution
Certificateholder.
SECTION 4.2 Action with Respect to Sale of the Trust Student Loans. The
Eligible Lender Trustee shall not have the power, except upon the written
direction of the Excess Distribution Certificateholder and except as expressly
provided in the Basic Documents, to sell the Trust Student Loans after the
payment in full of the Notes.
SECTION 4.3 Action with Respect to Bankruptcy. The Eligible Lender Trustee
shall not have the power to commence a voluntary proceeding in bankruptcy
relating to the Trust without the prior approval of the Excess Distribution
Certificateholder and the delivery to the Eligible Lender Trustee by the Excess
Distribution Certificateholder of a certificate certifying that the Excess
Distribution Certificateholder reasonably believes that the Trust is insolvent.
SECTION 4.4 Restrictions. Neither the Depositor nor the Excess
Distribution Certificateholder shall direct the Eligible Lender Trustee to take
or refrain from taking any action if such action or inaction would be contrary
to any obligation of the Trust or the Eligible Lender Trustee under this
Agreement or any of the other Basic Documents or would be contrary to Section
2.3 nor shall the Eligible Lender Trustee be permitted to follow any such
direction, if given.
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.1 Application of Trust Funds.
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(a) On each Distribution Date, the Excess Distribution Certificate
Paying Agent shall distribute to the Excess Distribution
Certificateholder any amounts payable in respect of the Excess
Distribution Certificate in accordance with the Administration
Agreement.
(b) In the event that any withholding tax is imposed on the Trust's
payment to the Excess Distribution Certificateholder, such tax shall
reduce the amount otherwise distributable on the Excess Distribution
Certificate.
SECTION 5.2 Method of Payment. Distributions required to be made to the
Excess Distribution Certificateholder on any Distribution Date shall be made to
the holder of record on the preceding Record Date either by wire transfer, in
immediately available funds, to the account of such holder at a bank or other
entity having appropriate facilities therefor, if such holder shall have
provided to the Excess Distribution Certificate Registrar appropriate written
instructions signed by two authorized officers, if any, at least five Business
Days prior to such Distribution Date, or, if not, by check mailed to such holder
at the address of such holder appearing in the Excess Distribution Certificate
Register.
SECTION 5.3 No Segregation of Moneys; No Interest. Subject to Section 5.1,
moneys received by the Eligible Lender Trustee hereunder need not be segregated
in any manner except to the extent required by law or the Administration
Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Eligible Lender Trustee shall not be liable for any
interest thereon.
SECTION 5.4 Reports to the Excess Distribution Certificateholder, the
Internal Revenue Service and Others. The Eligible Lender Trustee shall provide
(or cause to be provided) any reports or other information required to be
provided to the Excess Distribution Certificateholder pursuant to the Code, the
regulations promulgated thereunder or other applicable law. In addition, the
Eligible Lender Trustee shall provide (or cause to be provided) any information
concerning the Excess Distribution Certificate to the Internal Revenue Service
or other taxing authority as required under the Code, the regulations
promulgated thereunder or other applicable law. The Eligible Lender Trustee
shall be entitled to hire an independent accounting firm to perform the
functions described in this Section 5.4, the reasonable fees and expenses of
which shall be paid by the Depositor.
SECTION 5.5 Intentionally Omitted.
SECTION 5.6 Intentionally Omitted.
ARTICLE VI
Authority and Duties of Eligible Lender Trustee
SECTION 6.1 General Authority. The Eligible Lender Trustee is authorized
and directed to execute and deliver the Basic Documents to which the Trust is to
be a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party, in each
case, in such form as the Depositor shall approve as
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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 denominated in U.S. Dollars in the aggregate principal amount of
$2,853,850,870, Notes denominated in Pounds Sterling in the aggregate principal
amount of (pound)331,000,000 and Notes denominated in Euros in the aggregate
principal amount of (euro)408,000,000. 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 3.2(c) of the Administration Agreement and
otherwise follow the direction of and cooperate with the Servicer in submitting,
pursuing and collecting any claims to and with the Department with respect to
any Interest Subsidy Payments and Special Allowance Payments relating to the
Trust Student Loans.
In addition to the foregoing, the Eligible Lender Trustee is authorized to
take all actions required of the Trust pursuant to the Basic Documents. The
Eligible Lender Trustee is further authorized from time to time to take such
action as the Administrator directs or instructs with respect to the Basic
Documents and is directed to take such action to the extent that the
Administrator is expressly required pursuant to the Basic Documents to cause the
Eligible Lender Trustee to act.
SECTION 6.2 General Duties. It shall be the duty of the Eligible Lender
Trustee to discharge (or cause to be discharged) all of 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
Noteholders, any Swap Counterparties and the Excess Distribution
Certificateholder subject to and in accordance with the provisions of this
Agreement and the other Basic Documents. Without limiting the foregoing, the
Eligible Lender Trustee shall on behalf of the Trust file and prove any claim or
claims that may exist on behalf of the Trust against the Depositor in connection
with any claims paying procedure as part of an insolvency or a receivership
proceeding involving the Depositor. Notwithstanding the foregoing, the Eligible
Lender Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the other Basic Documents to the extent the
Administrator has agreed in the Administration Agreement to perform and act or
to discharge any duty of the Eligible Lender Trustee hereunder or under any
other Basic Document, and the Eligible Lender Trustee shall not be held liable
for the default or failure of the Administrator to carry out its obligations
under the Administration Agreement. Except as expressly provided in the Basic
Documents, the Eligible Lender Trustee shall have no obligation to administer,
service or collect the Trust Student Loans or to maintain, monitor or otherwise
supervise the administration, servicing or collection of the Trust Student
Loans.
SECTION 6.3 Action upon Instruction.
(a) [Reserved].
(b) The Eligible Lender Trustee shall not be required to take any action
hereunder or under any other Basic Document if the Eligible Lender Trustee shall
have reasonably determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Eligible Lender
Trustee or is contrary to the terms hereof, any other Basic Document or is
otherwise contrary to law.
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(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 Excess Distribution
Certificateholder 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 Excess Distribution
Certificateholder received, the Eligible Lender Trustee shall not be liable on
account of such action to any Person. If the Eligible Lender Trustee shall not
have received appropriate instruction within 10 days of such notice (or within
such shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action, not inconsistent with this Agreement,
the other Basic Documents, as it shall deem to be in the best interests of the
Excess Distribution Certificateholder, and shall have no liability to any Person
for such action or inaction.
(d) In the event that the Eligible Lender Trustee is unsure as to the
application of any provision of this Agreement, any other Basic Document or any
such provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Eligible Lender Trustee or is silent
or is incomplete as to the course of action that the Eligible Lender Trustee is
required to take with respect to a particular set of facts, the Eligible Lender
Trustee may give notice (in such form as shall be appropriate under the
circumstances) to the Excess Distribution Certificateholder requesting
instruction and, to the extent that the Eligible Lender Trustee acts or refrains
from acting in good faith in accordance with any such instruction received, the
Eligible Lender Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Eligible Lender Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the other Basic
Documents, as it shall deem to be in the best interest of the Excess
Distribution Certificateholder, 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
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by, or claims against, Chase Manhattan Bank USA, National Association in its
individual capacity or as the Eligible Lender Trustee that are not related to
the ownership or the administration of the Trust Estate.
SECTION 6.5 No Action Except under Specified Documents or Instructions.
The Eligible Lender Trustee shall not otherwise deal with any part of the Trust
Estate except (i) in accordance with the powers granted to and the authority
conferred upon the Eligible Lender Trustee pursuant to this Agreement, (ii) in
accordance with the other Basic Documents to which it is a party and (iii) in
accordance with any document or instruction delivered to the Eligible Lender
Trustee pursuant to Section 6.3.
SECTION 6.6 Restrictions. The Eligible Lender Trustee shall not take any
action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Eligible Lender Trustee,
would result in the Trust's becoming taxable as a corporation for Federal income
tax purposes. Neither the Depositor nor the Excess Distribution
Certificateholder shall direct the Eligible Lender Trustee to take action that
would violate the provisions of this Section.
ARTICLE VII
Concerning the Eligible Lender Trustee
SECTION 7.1 Acceptance of Trusts and Duties. The Eligible Lender Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The
Eligible Lender Trustee also agrees to disburse all moneys actually received by
it constituting part of the Trust Estate upon the terms of this Agreement and
the other Basic Documents. The Eligible Lender Trustee shall not be answerable
or accountable hereunder or under any other Basic Document under any
circumstances, except (i) for its own willful misconduct or negligence or (ii)
in the case of the inaccuracy of any representation or warranty contained in
Section 7.3 expressly made by the Eligible Lender Trustee. In particular, but
not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) the Eligible Lender Trustee shall not be liable for any error of
judgment made by a responsible officer of the Eligible Lender Trustee;
(b) the Eligible Lender Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the direction or
instructions of the Administrator, the Depositor or the Excess Distribution
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;
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(d) under no circumstances shall the Eligible Lender Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(e) the Eligible Lender Trustee shall not be responsible for or in respect
of the validity or sufficiency of this Agreement or for the due execution hereof
by the Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Trust Estate or for or in respect of the validity or
sufficiency of the Basic Documents, other than the certificate of authentication
on the Excess Distribution Certificate, and the Eligible Lender Trustee shall in
no event assume or incur any liability, duty, or obligation to any Noteholder or
the Excess Distribution 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, the Servicer, any Swap Counterparty or any Remarketing Agent
under any of the other Basic Documents or otherwise and the Eligible Lender
Trustee shall have no obligation or liability to perform the obligations of the
Trust under this Agreement or the other Basic Documents that are required to be
performed by the Administrator under the Administration Agreement, the Indenture
Trustee under the Indenture or the Servicer under the Servicing Agreement; and
(g) the Eligible Lender Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement, any other Basic Document, at the request, order or
direction of the Depositor or the Excess Distribution Certificateholder, unless
the Depositor or such holder has offered to the Eligible Lender Trustee security
or indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Eligible Lender Trustee therein or thereby. The right of
the Eligible Lender Trustee to perform any discretionary act enumerated in this
Agreement or in any other Basic Document shall not be construed as a duty, and
the Eligible Lender Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of any such act.
SECTION 7.2 Intentionally Omitted.
SECTION 7.3 Representations and Warranties. The Eligible Lender Trustee
hereby represents and warrants to the Depositor, for the benefit of the
Noteholders, the Interest Rate Cap Swap Counterparty, any Currency Swap
Counterparties and the Excess Distribution Certificateholder, that:
(a) It is duly organized and validly existing in good standing under the
laws of its governing jurisdiction and has an office located within the State of
Delaware. It has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Agreement, and this Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver
this Agreement on its behalf.
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(c) Neither the execution nor the delivery by it of this Agreement, nor
the consummation by it of the transactions contemplated hereby nor compliance by
it with any of the terms or provisions hereof will contravene any Federal or
Delaware state law, governmental rule or regulation governing the banking or
trust powers of the Eligible Lender Trustee or any judgment or order binding on
it, or constitute any default under its charter documents or by-laws or any
indenture, mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound.
(d) It is and will maintain its status as an "eligible lender" (as such
term is defined in Section 435(d) of the Higher Education Act) for purposes of
holding legal title to the Trust Student Loans as contemplated by this Agreement
and the other Basic Documents, it has a lender identification number with
respect to the Trust Student Loans from the Department and has and will maintain
in effect a Guarantee Agreement with each of the Guarantors with respect to the
Trust Student Loans.
SECTION 7.4 Reliance; Advice of Counsel.
(a) The Eligible Lender Trustee shall incur no liability to anyone in
acting upon any signature, instrument, direction, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper
believed by it to be genuine and believed by it to be signed by the proper party
or parties. The Eligible Lender Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter the
method of the determination of which is not specifically prescribed herein, the
Eligible Lender Trustee may for all purposes hereof rely on a certificate,
signed by the president or any vice president or by the treasurer or other
authorized officers of the relevant party, as to such fact or matter and such
certificate shall constitute full protection to the Eligible Lender Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the other
Basic Documents, the Eligible Lender Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them and the
Eligible Lender Trustee shall not be liable for the conduct or misconduct of
such agents or attorneys if such agents or attorneys shall have been selected by
the Eligible Lender Trustee with reasonable care, and (ii) may consult with
counsel and accountants to be selected with reasonable care and employed by it.
The Eligible Lender Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the written opinion or advice of
any such counsel or accountants and not contrary to this Agreement or any other
Basic Document.
SECTION 7.5 Not Acting in Individual Capacity. Except as provided in this
Article VII, in accepting the trusts hereby created Chase Manhattan Bank USA,
National Association acts solely as Eligible Lender Trustee hereunder and not in
its individual capacity and all Persons having any claim against the Eligible
Lender Trustee by reason of the transactions contemplated by this Agreement or
any other Basic Document shall look only to the Trust Estate for payment or
satisfaction thereof.
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SECTION 7.6 Eligible Lender Trustee Not Liable for Excess Distribution
Certificate or Trust Student Loans. The recitals contained herein and in the
Excess Distribution Certificate (other than the signature of and authentication
by the Eligible Lender Trustee on the Excess Distribution Certificate) shall be
taken as the statements of the Depositor and the Eligible Lender Trustee assumes
no responsibility for the correctness thereof. The Eligible Lender Trustee makes
no representations as to the validity or sufficiency of this Agreement, the
Excess Distribution Certificate, or any other Basic Document (other than the
signature of and authentication by the Eligible Lender Trustee on the Excess
Distribution Certificate), or the Notes, or of any Trust Student Loan or related
documents. The Eligible Lender Trustee shall at no time have any responsibility
(or liability except for willfully or negligently terminating or allowing to be
terminated any of the Guarantee Agreements, in a case where the Eligible Lender
Trustee knows of any facts or circumstances which will or could reasonably be
expected to result in any such termination) for or with respect to the legality,
validity, enforceability and eligibility for Guarantee Payments, federal
reinsurance, Interest Subsidy Payments or Special Allowance Payments, as
applicable, in respect of any Trust Student Loan, or for or with respect to the
sufficiency of the Trust Estate or its ability to generate the payments to be
distributed to the Excess Distribution Certificateholder under this Agreement or
the Noteholders, any Currency Swap Counterparty under the Indenture, including
the existence and contents of any computer or other record of any Trust Student
Loan; the validity of the assignment of any Trust Student Loan to the Eligible
Lender Trustee on behalf of the Trust; the completeness of any Trust Student
Loan; the performance or enforcement (except as expressly set forth in any Basic
Document) of any Trust Student Loan; the compliance by the Depositor or the
Servicer with any warranty or representation made under any Basic Document or in
any related document or the accuracy of any such warranty or representation or
any action or inaction of the Administrator, the Indenture Trustee or the
Servicer or any subservicer taken in the name of the Eligible Lender Trustee.
SECTION 7.7 Eligible Lender Trustee May Own Notes. The Eligible Lender
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may deal with the Depositor, the Excess Distribution
Certificateholder, the Administrator, the Indenture Trustee or the Servicer in
banking transactions with the same rights as it would have if it were not
Eligible Lender Trustee.
ARTICLE VIII
Compensation and Indemnity of Eligible Lender Trustee
SECTION 8.1 Eligible Lender Trustee's Fees and Expenses. The Eligible
Lender Trustee shall receive as compensation for its services hereunder such
fees as have been separately agreed upon before the date hereof between the
Depositor and the Eligible Lender Trustee, and the Eligible Lender Trustee shall
be entitled to be reimbursed by the Depositor, to the extent provided in such
separate agreement, for its other reasonable expenses (including the reasonable
fees and expenses of counsel and independent accountants) hereunder.
SECTION 8.2 Payments to the Eligible Lender Trustee. Any amounts paid to
the Eligible Lender Trustee pursuant to Section 8.1 hereof or pursuant to
Section 9 of the Sale Agreement, Section 4.2 of the Administration Agreement or
Section 4.2 of the Servicing Agreement shall be deemed not to be a part of the
Trust Estate immediately after such payment.
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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 (1) the final distribution by the
Excess Distribution Certificate Paying Agent of all moneys or other property or
proceeds of the Trust Estate in accordance with the terms of the Indenture, the
Administration Agreement and Article V hereof and (2) the filing of the
certificate of cancellation by the Eligible Lender Trustee pursuant to section
9.1(b) below. The bankruptcy, liquidation, dissolution, death or incapacity of
the Excess Distribution Certificateholder shall not (x) operate to terminate
this Agreement or the Trust, nor (y) entitle such holder's legal representatives
or heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of all or any part of the Trust or Trust Estate
nor (z) otherwise affect the rights, obligations and liabilities of the parties
hereto.
(b) Except as provided in Section 9.1(a), none of the Depositor, any
Noteholder or the Excess Distribution Certificateholder shall be entitled to
revoke or terminate the Trust.
Upon final distribution of any funds remaining in the Trust, the Eligible
Lender Trustee shall file a certificate of cancellation of the Trust's
certificate of trust pursuant to Section 3810(c) of the Delaware Statutory Trust
Act.
ARTICLE X
Successor Eligible Lender Trustees and
Additional Eligible Lender Trustees
SECTION 10.1 Eligibility Requirements for Eligible Lender Trustee. The
Eligible Lender Trustee shall at all times be a corporation or association (i)
qualifying as an "eligible lender" as such term is defined in Section 435(d) of
the Higher Education Act for purposes of holding legal title to the Trust
Student Loans on behalf of the Trust, with a valid lender identification number
with respect to the Trust Student Loans from the Department; (ii) being
authorized to exercise corporate trust powers and hold legal title to the Trust
Student Loans; (iii) having in effect Guarantee Agreements with each of the
Guarantors as may be directed by the Depositor; (iv) having a combined capital
and surplus of at least $50,000,000 and being subject to supervision or
examination by Federal or state authorities; (v) having its principal place of
business in the State of Delaware and otherwise complying with Section 3807 of
the Delaware Statutory Trust Act; and (vi) having (or having a parent which has)
a rating in respect of its long-term senior unsecured debt of at least "BBB-"
(or the equivalent) by each of the Rating Agencies (or which, if the long-term
senior unsecured debt of such corporation or association is not rated
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by any Rating Agency, shall have provided to the Indenture Trustee written
confirmation from such Rating Agency that the appointment of such corporation or
association to serve as Eligible Lender Trustee will not result in and of itself
in a reduction or withdrawal of the then current rating of any of the Notes). If
the Eligible Lender Trustee shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section, the combined capital
and surplus of the Eligible Lender Trustee shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Eligible Lender Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Eligible Lender
Trustee shall resign immediately in the manner and with the effect specified in
Section 10.2.
SECTION 10.2 Resignation or Removal of Eligible Lender Trustee. The
Eligible Lender Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Administrator. Upon
receiving such notice of resignation, the Administrator shall promptly appoint a
successor Eligible Lender Trustee meeting the eligibility requirements of
Section 10.1 by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Eligible Lender Trustee and one copy to the
successor Eligible Lender Trustee. If no successor Eligible Lender Trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Eligible Lender Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Eligible Lender Trustee; provided, however, that such right to appoint or to
petition for the appointment of any such successor shall in no event relieve the
resigning Eligible Lender Trustee from any obligations otherwise imposed on it
under the Basic Documents until such successor has in fact assumed such
appointment.
If at any time the Eligible Lender Trustee shall cease to be or shall be
likely to cease to be eligible in accordance with the provisions of Section 10.1
and shall fail to resign after written request therefor by the Administrator, or
if at any time an Insolvency Event with respect to the Eligible Lender Trustee
shall have occurred and be continuing, then the Administrator may remove the
Eligible Lender Trustee. If the Administrator shall remove the Eligible Lender
Trustee under the authority of the immediately preceding sentence, the
Administrator shall promptly appoint a successor Eligible Lender Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the outgoing Eligible Lender Trustee so removed and one copy to the
successor Eligible Lender Trustee and payment of all fees owed to the outgoing
Eligible Lender Trustee.
Any resignation or removal of the Eligible Lender Trustee and appointment
of a successor Eligible Lender Trustee pursuant to any of the provisions of this
Section shall not become effective until acceptance of appointment by the
successor Eligible Lender Trustee pursuant to Section 10.3, payment of all fees
and expenses owed to the outgoing Eligible Lender Trustee and the filing of a
certificate of amendment to the Trust's certificate of trust pursuant to Section
3810(b) of the Delaware Statutory Trust Act. The Administrator shall provide
notice of such resignation or removal of the Eligible Lender Trustee and to each
of the Rating Agencies.
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
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appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Eligible Lender Trustee shall become effective and such
successor Eligible Lender Trustee, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations of
its predecessor under this Agreement, with like effect as if originally named as
Eligible Lender Trustee. The predecessor Eligible Lender Trustee shall upon
payment of its fees and expenses deliver to the successor Eligible Lender
Trustee all documents, statements, moneys and properties held by it under this
Agreement and shall assign, if permissible, to the successor Eligible Lender
Trustee the lender identification number obtained from the Department on behalf
of the Trust; and the Administrator and the predecessor Eligible Lender Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Eligible Lender Trustee all such rights, powers, duties and
obligations.
No successor Eligible Lender Trustee shall accept such appointment as
provided in this Section unless at the time of such acceptance such successor
Eligible Lender Trustee shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Eligible Lender Trustee
pursuant to this Section, the Administrator shall mail notice of the successor
of such Eligible Lender Trustee to the Excess Distribution Certificateholder,
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 or association into which the Eligible Lender Trustee may be merged
or converted or with which it may be consolidated, or any corporation or
association resulting from any merger, conversion or consolidation to which the
Eligible Lender Trustee shall be a party, or any corporation or association
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 or association shall be
eligible pursuant to Section 10.1; and provided further that the Eligible Lender
Trustee shall mail notice of such merger or consolidation to the Rating Agencies
not less than 15 days prior to the effective date thereof.
SECTION 10.5 Appointment of Co-Eligible Lender Trustee or Separate
Eligible Lender Trustee. Notwithstanding any other provisions of this Agreement,
at any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust may at the time be located, the
Administrator and the Eligible Lender Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Eligible Lender Trustee, meeting the eligibility
requirements of clauses (i) through (iii) of Section 10.1, to act as co-trustee,
jointly with the Eligible Lender Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Estate, and to vest in such Person, in
such capacity, such title to the Trust Estate, or any part thereof, and, subject
to the other provisions of this Section, such powers, duties, obligations,
rights and trusts as the Administrator and the Eligible Lender Trustee may
consider necessary or desirable. If the Administrator shall not have
-20-
joined in such appointment within 15 days after the receipt by it of a request
so to do, the Eligible Lender Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
clauses (iv), (v) and (vi) of Section 10.1 and no notice of the appointment of
any co-trustee or separate trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Eligible Lender Trustee shall be conferred upon and exercised or
performed by the Eligible Lender Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Eligible Lender
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed,
the Eligible Lender Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties, and
obligations (including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed singly
by such separate trustee or co-trustee, solely at the direction of the
Eligible Lender Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Administrator and the Eligible Lender Trustee acting
jointly may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Any notice, request or other writing given to the Eligible Lender Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Eligible
Lender Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Eligible Lender Trustee. Each such instrument shall be filed
with the Eligible Lender Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Eligible
Lender Trustee as its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Eligible Lender Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
-21-
ARTICLE XI
Miscellaneous
SECTION 11.1 Supplements and Amendments. This Agreement may be amended by
the Excess Distribution Certificateholder and the Eligible Lender Trustee, with
prior written notice to the Rating Agencies, without the consent of any of the
Noteholders, to cure any ambiguity, to correct or supplement any provisions in
this Agreement or for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in this Agreement or modifying in
any manner the rights of the Noteholders; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder.
This Agreement may also be amended from time to time by the Excess
Distribution Certificateholder and the Eligible Lender Trustee, with prior
written notice to the Rating Agencies, with the consent of (i) the Class A
Noteholders evidencing not less than a majority of the Outstanding Amount of the
Class A Notes and (ii) the Class B Noteholders evidencing not less than a
majority of the Class B Notes, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
modifying in any manner the rights of the Class A Noteholders or Class B
Noteholders, as the case may be; provided, however, that no such amendment shall
(a) increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Trust Student Loans or distributions that
shall be required to be made for the benefit of the Noteholders or (b) reduce
the aforesaid percentage of the Outstanding Amount of any class of Notes
required to consent to any such amendment, without the consent of all the
outstanding Noteholders of such class.
Promptly after the execution of any such amendment or consent, the
Eligible Lender Trustee shall furnish written notification of the substance of
such amendment or consent to the Excess Distribution Certificateholder, the
Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of the Noteholders or the
Indenture Trustee pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of provided for in this Agreement or in any other Basic Document)
and of evidencing the authorization of the execution thereof shall be subject to
such reasonable requirements as the Eligible Lender Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the Eligible
Lender Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement. The Eligible Lender Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Eligible Lender Trustee's own rights,
duties or immunities under this Agreement or otherwise.
SECTION 11.2 No Legal Title to Trust Estate in Excess Distribution
Certificateholder. The Excess Distribution Certificateholder shall not have
legal title to any part of the Trust Estate. The Excess Distribution
Certificateholder shall be entitled to receive distributions with respect to its
undivided beneficial ownership interest therein only in
-22-
accordance with Section 3.3 of this Agreement. No transfer, by operation of law
or otherwise, of any right, title, or interest of the Excess Distribution
Certificateholder to and in its beneficial ownership interest in the Trust
Estate shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal title
to any part of the Trust Estate.
SECTION 11.3 Limitations on Rights of Others. Except for Section 2.7, the
provisions of this Agreement are solely for the benefit of the Eligible Lender
Trustee, the Depositor, the Excess Distribution Certificateholder, the
Administrator and, to the extent expressly provided herein, the Indenture
Trustee and the Noteholders, and nothing in this Agreement (other than Section
2.7), whether express or implied, shall be construed to give to any other Person
any legal or equitable right, remedy or claim in the Trust Estate or under this
Agreement or any covenants, conditions or provisions contained herein.
SECTION 11.4 Notices. Unless otherwise expressly specified or permitted by
the terms hereof, all notices shall be in writing and shall be deemed given upon
receipt by the intended recipient or three Business Days after mailing if mailed
by certified mail, postage prepaid (except that notice to the Eligible Lender
Trustee shall be deemed given only upon actual receipt by the Eligible Lender
Trustee), if to the Eligible Lender Trustee, addressed to its Corporate Trust
Office with copies to Deutsche Bank Trust Company Americas, 00 Xxxx Xxxxxx, 00xx
Xxxxx, Mailstop XXX00-0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Trust &
Securities Services/Structured Finance Services; if to the Depositor, addressed
to SLM Funding LLC, 12061 Bluemont Way, V3419, Xxxxxx, Xxxxxxxx 00000, or, as to
each party, at such other address as shall be designated by such party in a
written notice to each other party.
SECTION 11.5 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.6 Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon and inure to the benefit of, the
Depositor and its successors, the Eligible Lender Trustee and its successors,
each Excess Distribution Certificateholder and its successors and permitted
assigns, all as herein provided. Any request, notice, direction, consent, waiver
or other instrument or action by a Noteholder or the Excess Distribution
Certificateholder shall bind the successors and assigns of such holder.
SECTION 11.8 No Petition.
(a) Neither the Depositor, nor any other Excess Distribution
Certificateholder (as evidenced by its acceptance of the Excess Distribution
Certificate) will institute against the Trust, at any time, any bankruptcy
proceedings under any United States Federal or state
-23-
bankruptcy or similar law in connection with any obligations relating to the
Excess Distribution Certificate, the Notes, this Agreement or any of the other
Basic Documents. The foregoing shall not limit the rights of the Depositor, nor
any Excess Distribution Certificateholder to file any claim in, or otherwise
take any action with respect to, any insolvency proceeding that was instituted
against the Trust by a Person other than the Depositor or such other Excess
Distribution Certificateholder.
(b) The Eligible Lender Trustee (not in its individual capacity but solely
as Eligible Lender Trustee), by entering into this Agreement, the Excess
Distribution Certificateholder by accepting the Excess Distribution Certificate,
and the Indenture Trustee and each Noteholder by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against the Depositor or the Trust, or join in any institution against the
Depositor or the Trust of, any bankruptcy, reorganization, arrangement,
insolvency, receivership or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, this Agreement or any of the other Basic
Documents. The foregoing shall not limit the rights of the Eligible Lender
Trustee to file any claim in, or otherwise take any action with respect to, any
insolvency proceeding that was instituted against the Issuer by a Person other
than the Eligible Lender Trustee.
SECTION 11.9 No Recourse. Each Excess Distribution Certificateholder by
accepting the Excess Distribution Certificate acknowledges that such holder's
certificate represents beneficial interests in the Trust only and do not
represent interests in or obligations of the Depositor, the Servicer, the
Administrator, the Eligible Lender Trustee, the Indenture Trustee, any Swap
Counterparty, any Remarketing Agent or any Affiliate thereof or any officer,
director or employee of any thereof and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated in
this Agreement, the Excess Distribution Certificate or the other Basic
Documents.
SECTION 11.10 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 11.11 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
;lp8o
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed by their respective officers
hereunto duly authorized, as of the day and year first above written.
-00-
XXXXX XXXXXXXXX BANK USA,
NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Eligible
Lender Trustee
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Vice President
SLM FUNDING LLC,
as the Depositor
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Vice President
-25-
Acknowledged and agreed as to
Section 3.3(c) and Section 3.3(g)
of this Amended and Restated Trust Agreement
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but solely
as the initial Excess Distribution
Certificate Paying Agent
By: /s/ XXXXXXX X.X. XXXX
Name: Xxxxxxx H.Y. Voon
Title: Assistant Vice President
-26-
EXHIBIT A
TO THE TRUST AGREEMENT
[PLEASE SEE ATTACHED]
A-1
EXHIBIT B
FORM OF
CERTIFICATE OF TRUST
OF
SLM STUDENT LOAN
TRUST 2004-10
This Certificate of Trust of SLM STUDENT LOAN TRUST 2004-10 (the "Trust")
is being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a statutory trust under the Delaware Statutory Trust Statute
(12 Del. C.Section 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed by this Certificate of
Trust is SLM STUDENT LOAN TRUST 2004-10.
2. Delaware Trustee. The name and business address of the eligible lender
trustee of the Trust in the State of Delaware are the Chase Manhattan Bank USA,
National Association, c/o JPMorgan Chase Bank, 500 Xxxxxxx Xxxxxxxxxx Road,
Xxxxxxxxxx Xxxxxx/XXX0/0xx Xxxxx, Xxxxxx, Xxxxxxxx 00000. Attn: Institutional
Trust Services.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Eligible
Lender Trustee
By: _______________________________
Name:
Title:
B-1
EXHIBIT C
[FORM OF TRANSFEROR LETTER]
[Date]
Xxxxxx Xxx, Inc.
as Administrator
00000 Xxxxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
Deutsche Bank Trust Company Americas
as Excess Distribution Certificate Registrar
00 Xxxx Xxxxxx, 00xx Xxxxx
Mailstop XXX00-0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Trust & Securities Services/Structured Finance Services
Chase Manhattan Bank USA, National Association
as Eligible Lender Trustee
Christiana Center/OPS4
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Re: SLM Student Loan Trust 2004-10,
Excess Distribution Certificate (the "Certificate")
Ladies and Gentlemen:
In connection with our disposition of the above Certificate, we certify
that (a) we understand that the Certificate has not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and is being disposed
by us in a transaction that is exempt from the registration requirements of the
Securities Act, and (b) we have not offered or sold the Certificate to, or
solicited offers to buy the Certificate from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner that
would be deemed, or taken any other action would result in, a violation of
Section 5 of the Securities Act.
Very truly yours,
_________________________________________
[Print Name of Transferor]
By: ______________________________________
Authorized Officer
C-1
EXHIBIT D-1
[FORM OF TRANSFEREE LETTER (NON-RULE 144A)]
[Date]
Xxxxxx Mae, Inc.
as Administrator
00000 Xxxxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
Deutsche Bank Trust Company Americas
as Excess Distribution Certificate Registrar
00 Xxxx Xxxxxx, 00xx Xxxxx
Mailstop XXX00-0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Trust & Securities Services/Structured Finance Services
Chase Manhattan Bank USA, National Association
as Eligible Lender Trustee
Christiana Center/OPS4
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Re: SLM Student Loan Trust 2004-10,
Excess Distribution Certificate (the "Certificate")
Ladies and Gentlemen:
In connection with our acquisition of the above Certificate, we certify
that (a) we understand that the Certificate is not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any state
securities laws and is being transferred to us in a transaction that is exempt
from the registration requirements of the Securities Act and any such laws, (b)
we are an institutional "accredited investor," as defined in Rule 501 (a) (1),
(2), (3) or (7) of Regulation D under the Securities Act or an entity in which
all of the equity owners come within such paragraphs, and have such knowledge
and experience in financial and business matters that we are capable of
evaluating the merits and risks of investments in the Certificate, (c) we have
had the opportunity to ask questions of and receive answers from the Depositor
concerning the purchase of the Certificate and all matters relating thereto or
any additional information deemed necessary to our decision to purchase the
Certificate, (d) we are not acquiring the Certificate for, by or for the account
of (i) any Benefit Plan subject to Title I of ERISA and/or Section 4975 of the
Code, if such acquisition, or the management or servicing of the Trust or its
assets, would cause a non-exempt prohibited transaction in violation of Section
406 of ERISA and/or Section 4975 of the Code, (ii) any Benefit Plan subject to a
substantially similar federal, state, local or foreign law, if such acquisition
would cause a non-exempt violation of such substantially similar law, (iii) any
person who is not a United States person
D-1-1
within the meaning of Section 7701(a)(30) of the Code, or (iv) any "pass-thru
entity" referred to in Section 1(h)(10)(D), (E) or (F) of the Code, the income
of which pass-thru entity is includible by any person referred to in clause
(iii) above, (e) we are acquiring the Certificate for investment for our own
account and not with a view to any distribution of the Certificate (but without
prejudice to our right at all times to sell or otherwise dispose of the
Certificate in accordance with clause (g) below), (f) we have not offered or
sold the Certificate to, or solicited offers to buy the Certificate from, any
person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action which would result in a violation of Section
5 of the Securities Act, and (g) we will not sell, transfer or otherwise dispose
of the Certificate unless (1) such sale, transfer or other disposition is made
pursuant to an effective registration statement under the Securities Act or is
exempt from such registration requirements, and if requested, we will at our
expense provide an opinion of counsel satisfactory to the addressees of this
Letter that such sale, transfer or other disposition may be made pursuant to an
exemption from the Securities Act, (2) the purchaser or transferee of such
Certificate has executed and delivered to you a certificate to substantially the
same effect as this certificate and (3) the purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Trust
Agreement relating to the Certificate.
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 to the Amended and Restated Trust Agreement dated as of October 20,
2004, among SLM Funding LLC, as the Depositor, Chase Manhattan Bank USA,
National Association, not in its individual capacity, but solely as the Eligible
Lender Trustee, and Deutsche Bank Trust Company Americas, not in its individual
capacity, but solely as the Indenture Trustee, acting as the Excess Distribution
Certificate Paying Agent.
Very truly yours,
__________________________________
[Print Name of Transferee]
By:_______________________________
Authorized Officer
D-1-2
EXHIBIT D-2
[FORM OF TRANSFEREE LETTER (RULE 144A)]
[Date]
Xxxxxx Xxx, Inc.
as Administrator
00000 Xxxxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
Deutsche Bank Trust Company Americas
as Excess Distribution Certificate Registrar
00 Xxxx Xxxxxx, 00xx Xxxxx
Mailstop XXX00-0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Trust & Securities Services/Structured Finance Services
Chase Manhattan Bank USA, National Association
as Eligible Lender Trustee
Christiana Center/OPS4
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Re: SLM Student Loan Trust 2004-10,
Excess Distribution Certificate (the "Certificate")
Ladies and Gentlemen:
In connection with our acquisition of the above Certificate, we certify
that (a) we understand that the Certificate is not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any state
securities laws and is being transferred to us in a transaction that is exempt
from the registration requirements of the Securities Act and any such laws, (b)
we have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificate, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificate and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificate, (d) we are not acquiring the Certificate
by or for the account of (i) any Benefit Plan subject to Title I of ERISA and/or
Section 4975 of the Code, if such acquisition, or the management or servicing of
the Trust or its assets, would cause a non-exempt prohibited transaction in
violation of Section 406 of ERISA and/or Section 4975 of the Code, (ii) any
Benefit Plan subject to a substantially similar federal, state, local or foreign
law, if such acquisition would cause a non-exempt violation of such
substantially similar law, (iii) any person who is not a United States person
within the meaning of Section 7701(a)(30) of the Code, or (iv) any "pass-thru
entity" referred to in Section 1(h)(10)(D), (E) or (F) of the Code, the income
of which pass-thru entity is includible by any person referred to in clause
(iii) above, (e)
D-2-1
we have not, nor has anyone acting on our behalf offered, transferred, pledged,
sold or otherwise disposed of the Certificate, any interest in the Certificate
or any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificate, any interest in the
Certificate or any other similar security from, or otherwise approached or
negotiated with respect to the Certificate, any interest in the Certificate or
any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificate under
the Securities Act or that would render the disposition of the Certificate a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificate, (f) we are a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act ("Rule 144A") and have completed either of the forms of certification to
that effect attached hereto as Annex 1 or Annex 2. We are aware that the sale to
us is being made in reliance on Rule 144A. We are acquiring the Certificate for
our own account or for resale pursuant to Rule 144A and further understand that
the Certificate may be resold, pledged or transferred only (1) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
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 to the Amended and Restated Trust Agreement dated as of October 20,
2004, among SLM Funding LLC, as the Depositor, Chase Manhattan Bank USA,
National Association, not in its individual capacity, but solely as the Eligible
Lender Trustee, and Deutsche Bank Trust Company Americas, not in its individual
capacity, but solely as the Indenture Trustee, acting as the Excess Distribution
Certificate Paying Agent.
Very truly yours,
__________________________________
[Print Name of Transferee]
By:_______________________________
Authorized Officer
D-2-2
ANNEX 1
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Letter to which this certification relates
with respect to the Certificate described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer
of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the
Buyer owned and/or invested on a discretionary basis
$____________(1) in securities (except for the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A and
(ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501 (c) (3) of
the Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or
territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is
attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
--------
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least $10,000,000
in securities.
Annex 1-1
___ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. The Buyer is a small
business investment company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
___ Qualified Institutional Buyers. The Buyer owned and/or
invested on a discretionary basis less than $100,000,000, but
it is an entity in which all of the equity owners are
qualified institutional buyers.
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if
the Buyer is a dealer, (iii) securities issued or guaranteed by the
U.S. or any instrumentality thereof, (iv) bank deposit notes and
certificates of deposit, (v) loan participations, (vi) repurchase
agreements, (vii) securities owned but subject to a repurchase
agreement and (viii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer
used the cost of such securities to the Buyer and did not include
any of the securities referred to in the preceding paragraph, except
(i) where the Buyer reports its securities holdings in its financial
statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been
published. If clause (ii) in the preceding sentence applies, the
securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have
Annex 1-2
included securities owned by subsidiaries of the Buyer, but only if
such subsidiaries are consolidated with the Buyer in its financial
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed
under the Buyer's direction. However, such securities were not
included if the Buyer is a majority-owned, consolidated subsidiary
of another enterprise and the Buyer is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificate are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer may be in
reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such
notice is given, the Buyer's purchase of the Certificate will
constitute a reaffirmation of this certification as of the date of
such purchase. In addition, if the Buyer is a bank or savings and
loan is provided above, the Buyer agrees that it will furnish to
such parties updated annual financial statements promptly after they
become available.
____________________________________
[Print Name of Transferee]
By:_________________________________
Name:
Title:
Date:______________________
Annex 1-3
ANNEX 2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Letter to which this certification relates
with respect to the Certificate described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the
Buyer is a "qualified institutional buyer" as that term is defined
in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because Buyer is part of a Family of Investment Companies (as
defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment
Company Act of 1940, as amended and (ii) as marked below, the Buyer
alone, or the Buyer's Family of Investment Companies, owned at least
$100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal
year. For purposes of determining the amount of securities owned by
the Buyer or the Buyer's Family of Investment Companies, the cost of
such securities was used, except (i) where the Buyer or the Buyer's
Family of Investment Companies reports its securities holdings in
its financial statements on the basis of their market value, and
(ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
___ The Buyer owned $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $_____________ in securities (other
than the excluded securities referred to below) as of the end
of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that
have the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the
same parent or because one investment adviser is a majority owned
subsidiary of the other).
Annex 2-1
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or
guaranteed by the U.S. or any instrumentality thereof, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a
repurchase agreement and (vii) currency, interest rate and commodity
swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Letter to which this
certification relates are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will
be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer's own account.
6. Until the date of purchase of the Certificate, the undersigned will
notify the parties listed in the Rule 144A Transferee Letter to
which this certification relates of any changes in the information
and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificate will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
__________________________________
Print Name of Buyer or Adviser
By:_______________________________
Name:
Title:
[IF AN ADVISER:]
__________________________________
Print Name of Buyer
Date:______________________
Annex 2-2
