EXHIBIT 4.1
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AMENDED AND RESTATED TRUST AGREEMENT
among
SLM FUNDING LLC,
as Depositor
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Eligible Lender Trustee
and
THE BANK OF NEW YORK,
not in its individual capacity but solely
as Indenture Trustee
Dated as of March 18, 2004
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TABLE OF CONTENTS
Page
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ARTICLE I
SECTION 1.1 Definitions and Usage.............................................................................1
ARTICLE II ORGANIZATION
SECTION 2.1 Creation of Trust; Name...........................................................................1
SECTION 2.2 Office............................................................................................1
SECTION 2.3 Purposes and Powers...............................................................................1
SECTION 2.4 Appointment of Eligible Lender Trustee............................................................2
SECTION 2.5 Initial Capital Contribution of Trust Estate......................................................2
SECTION 2.6 Declaration of Trust..............................................................................2
SECTION 2.7 Liability of the Holder of the Excess Distribution Certificate....................................3
SECTION 2.8 Title to Trust Property...........................................................................3
SECTION 2.9 Representations, Warranties and Covenants of the Depositor........................................3
SECTION 2.10 Intentionally Omitted............................................................................3
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 Intentionally Omitted.............................................................................4
SECTION 3.3 Intentionally Omitted.............................................................................4
SECTION 3.4 Intentionally Omitted.............................................................................4
SECTION 3.5 Intentionally Omitted.............................................................................4
SECTION 3.6 Intentionally Omitted.............................................................................4
SECTION 3.7 Intentionally Omitted.............................................................................4
SECTION 3.8 Corporate Trust Office............................................................................4
SECTION 3.9 Intentionally Omitted.............................................................................4
SECTION 3.10 Intentionally Omitted............................................................................4
SECTION 3.11 Intentionally Omitted............................................................................4
SECTION 3.12 Intentionally Omitted............................................................................4
SECTION 3.13 The Excess Distribution Certificate..............................................................5
ARTICLE IV ACTIONS BY ELIGIBLE LENDER TRUSTEE
SECTION 4.1 Prior Notice to the Holder of the Excess Distribution Certificate
With Respect to Certain Matters..........................................................10
SECTION 4.2 Action with Respect to Sale of the Trust Student Loans...........................................10
SECTION 4.3 Action with Respect to Bankruptcy................................................................10
SECTION 4.4 Restrictions.....................................................................................10
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SECTION 4.5 Intentionally Omitted............................................................................11
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Application of Trust Funds.......................................................................11
SECTION 5.2 Method of Payment................................................................................11
SECTION 5.3 No Segregation of Moneys; No Interest............................................................11
SECTION 5.4 Reports to the Holder of the Excess Distribution Certificate, the
Internal Revenue Service and Others......................................................11
SECTION 5.5 Intentionally Omitted............................................................................11
SECTION 5.6 Intentionally Omitted............................................................................12
ARTICLE VI AUTHORITY AND DUTIES OF ELIGIBLE LENDER TRUSTEE
SECTION 6.1 General Authority................................................................................12
SECTION 6.2 General Duties...................................................................................12
SECTION 6.3 Action upon Instruction..........................................................................13
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................................................................17
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......................................................18
SECTION 8.2 Payments to the Eligible Lender Trustee..........................................................18
SECTION 8.3 Indemnity........................................................................................18
ARTICLE IX TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement...................................................................18
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ARTICLE X SUCCESSOR ELIGIBLE LENDER TRUSTEES AND ADDITIONAL ELIGIBLE LENDER TRUSTEES
SECTION 10.1 Eligibility Requirements for Eligible Lender Trustee............................................19
SECTION 10.2 Resignation or Removal of Eligible Lender Trustee...............................................19
SECTION 10.3 Successor Eligible Lender Trustee...............................................................20
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...................21
ARTICLE XI MISCELLANEOUS
SECTION 11.1 Supplements and Amendments......................................................................22
SECTION 11.2 No Legal Title to Trust Estate in Holder of the Excess Distribution Certificate.................23
SECTION 11.3 Limitations on Rights of Others.................................................................23
SECTION 11.4 Notices.........................................................................................23
SECTION 11.5 Severability....................................................................................23
SECTION 11.6 Separate Counterparts...........................................................................24
SECTION 11.7 Successors and Assigns..........................................................................24
SECTION 11.8 No Petition.....................................................................................24
SECTION 11.9 No Recourse.....................................................................................24
SECTION 11.10 Headings.......................................................................................25
SECTION 11.11 Governing Law..................................................................................25
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 to Trust Agreement
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AMENDED AND RESTATED TRUST AGREEMENT dated as of March 18, 2004, among
SLM FUNDING LLC, a Delaware limited liability company, as the Depositor, CHASE
MANHATTAN BANK USA, NATIONAL ASSOCIATION, a national banking association, not in
its individual capacity but solely as the Eligible Lender Trustee, and THE BANK
OF NEW YORK, a New York banking corporation, not in its individual capacity but
solely as the Indenture Trustee, acting as the Excess Distribution Certificate
Paying Agent hereunder.
WITNESSETH:
The Depositor and the Eligible Lender Trustee are parties to the trust
agreement dated as of March 5, 2004 (the "Short-Form Trust Agreement") pursuant
to which a trust known as "SLM Student Loan Trust 2004-3" 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 2004-3", in which name the
Eligible Lender Trustee may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and 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
make the Collection Account Initial Deposit, to purchase the Trust
Student Loans pursuant to the Sale Agreement and to make the upfront
payment pursuant to the Interest Rate Cap Agreement;
(iii) to Grant the Trust Estate to the Indenture Trustee
pursuant to the Indenture, and to hold, manage and distribute to the
holder of the Excess Distribution Certificate pursuant to the terms of
this Agreement any portion of the Trust Estate released from the Lien
of, and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the Basic
Documents (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 holder of the Excess
Distribution Certificate, subject to the obligations of the Trust under the
other Basic Documents. It is the intention of the parties hereto that the Trust
constitute a statutory trust under Delaware law and that this Agreement
constitute the governing instrument of such trust. Effective as of the date
hereof, the Eligible Lender Trustee shall have all rights, powers and duties set
forth herein with respect to accomplishing the purposes of the Trust.
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SECTION 2.7 Liability of the Holder of the Excess Distribution
Certificate. No holder of the Excess Distribution Certificate (in such capacity)
shall have any personal liability for any liability or obligation of the Trust.
SECTION 2.8 Title to Trust Property. Legal title to all of the Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Trust Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in the Eligible Lender Trustee, a co-trustee and/or
a separate trustee, as the case may be; provided that legal title to the Trust
Student Loans shall be vested at all times in the Eligible Lender Trustee on
behalf of the Trust.
SECTION 2.9 Representations, Warranties and Covenants of the Depositor.
The Depositor hereby represents, warrants and covenants to the Eligible Lender
Trustee as follows:
(a) The Depositor is duly organized and validly existing as a Delaware
limited liability company in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is presently
conducted.
(b) The Depositor has the power and authority to execute and deliver
this Agreement and to carry out its terms; the Depositor has full power and
authority to sell and assign the property to be sold and assigned to and
deposited with the Trust (or with the Eligible Lender Trustee on behalf of the
Trust) and the Depositor has duly authorized such sale and assignment and
deposit to the Trust (or to the Eligible Lender Trustee on behalf of the Trust)
by all necessary action; and the execution, delivery and performance of this
Agreement has been duly authorized by the Depositor by all necessary action.
(c) This Agreement constitutes a legal, valid and binding obligation of
the Depositor enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and similar laws relating to creditors'
rights generally and subject to general principles of equity.
(d) The consummation of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof do not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, the Certificate of Formation
or operating agreement of the Depositor, or any indenture, agreement or other
instrument to which the Depositor is a party or by which it is bound; nor result
in the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); nor violate any law or, to the Depositor's
knowledge, any order, rule or regulation applicable to the Depositor of any
court or of any Federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or its
properties.
(e) The Depositor agrees for the benefit of the Noteholders and the
holder of the Excess Distribution Certificate that it will comply with each of
the requirements set forth in the Certificate of Formation and its operating
agreement.
SECTION 2.10 Intentionally Omitted.
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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 Intentionally Omitted.
SECTION 3.3 Intentionally Omitted.
SECTION 3.4 Intentionally Omitted.
SECTION 3.5 Intentionally Omitted.
SECTION 3.6 Intentionally Omitted.
SECTION 3.7 Intentionally Omitted.
SECTION 3.8 Corporate Trust Office. The Eligible Lender Trustee
initially designates Christiana Center/OPS4, 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:
The Bank of New York
000 Xxxxxxx Xxxxxx, 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust - Structured Finance
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SECTION 3.9 Intentionally Omitted.
SECTION 3.10 Intentionally Omitted.
SECTION 3.11 Intentionally Omitted.
SECTION 3.12 Intentionally Omitted.
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SECTION 3.13 The Excess Distribution Certificate.
(a) General. The Excess Distribution Certificate shall be issued in one
or more registered, definitive physical certificates substantially in the form
of Exhibit A hereto, in minimum percentage interests of at least 10% and
integral multiples of 10% in excess thereof. The Excess Distribution Certificate
shall receive payments as provided in Sections 2.8(p), 2.9(f) and 2.10(a)(ii),
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 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 initial
holder of the Excess Distribution Certificate. 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. The Bank of New York shall be the
initial Excess Distribution Certificate Registrar.
Upon surrender for registration of transfer of the Excess Distribution
Certificate at the office or agency maintained pursuant to paragraph (f) below,
the Eligible Lender Trustee shall execute, authenticate and deliver (or shall
cause JPMorgan Chase Bank as its authenticating agent to authenticate and
deliver), in the name of the designated transferee, a new Excess Distribution
Certificate dated the date of authentication by the Eligible Lender Trustee or
any authenticating agent. At the option of the holder of the Excess Distribution
Certificate, the Excess Distribution Certificate may be exchanged for another
Excess Distribution Certificate upon surrender of the Excess Distribution
Certificate to be exchanged at the office or agency maintained pursuant to
paragraph (f) below.
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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.
The preceding provisions of this Section notwithstanding, the Eligible
Lender Trustee shall not be required to make and the Excess Distribution
Certificate Registrar need not register transfers or exchanges of the Excess
Distribution Certificate for a period of 15 days preceding any Distribution Date
with respect to the Excess Distribution Certificate.
The Excess Distribution Certificate and any beneficial interest in the
Excess Distribution Certificate may not be acquired by (a) employee benefit
plans (as defined in Section 3(3) of ERISA) that are subject to the provisions
of Title I of ERISA, (b) plans described in Section 4975(e)(1) of the Code,
including individual retirement accounts described in Section 408(a) of the Code
or Xxxxx plans, or (c) Benefit Plans. By accepting and holding the Excess
Distribution Certificate or an interest therein, the holder thereof shall be
deemed to have represented and warranted that it is not a Benefit Plan, is not
purchasing the Excess Distribution Certificate on behalf of a Benefit Plan and
is not using assets of a Plan to purchase the Excess Distribution Certificate
and to have agreed that if the Excess Distribution Certificate is deemed to be a
plan asset, the holder thereof will promptly dispose of the Excess Distribution
Certificate.
(d) Mutilated, Destroyed, Lost or Stolen Excess Distribution
Certificate. If (1) 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
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ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Excess Distribution Certificate shall be found at any time.
(e) Persons Deemed Owners. Prior to due presentation of the Excess
Distribution Certificate for registration of transfer, the Eligible Lender
Trustee and the Excess Distribution Certificate Registrar and any agent of
either of them may treat the Person in whose name the Excess Distribution
Certificate shall be registered in the Excess Distribution Certificate Register
as the owner of such Excess Distribution Certificate for the purpose of
receiving distributions thereon and for all other purposes whatsoever, and
neither the Eligible Lender Trustee, the Excess Distribution Certificate
Registrar nor any agent thereof shall be bound by any notice to the contrary.
(f) Maintenance of Office or Agency. The Eligible Lender Trustee shall
maintain in the Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where the Excess Distribution Certificate may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Eligible Lender Trustee in respect of the Excess
Distribution Certificate may be served.
(g) Appointment of Excess Distribution Certificate Paying Agent. The
Excess Distribution Certificate Paying Agent shall make distributions to the
holder of the Excess Distribution Certificate from the amounts received from the
Indenture Trustee pursuant to Sections 2.8(p), 2.9(f) and 2.10(a)(ii) 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 holder of the Excess Distribution Certificate in trust for the
benefit of such holder until such sums shall be paid to such holder. The Excess
Distribution Certificate Paying Agent shall return all unclaimed funds to the
Eligible Lender Trustee and upon removal of an Excess Distribution Certificate
Paying Agent such Excess Distribution Certificate Paying Agent shall
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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 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 holder of the Excess Distribution Certificate
desiring to effect such transfer shall, and does hereby agree to,
indemnify the Eligible Lender Trustee, the Excess Distribution
Certificate Registrar, the Administrator, and, if it is not the
proposed transferor, the
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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 directly or indirectly for, on behalf
of or with the assets of a Plan. If any proposed transferee shall
become a holder of the Excess Distribution Certificate in violation of
these provisions, then the last preceding permitted transferee shall be
restored, to the extent permitted by law, to all rights as holder of
the Excess Distribution Certificate, retroactive to the date of
registration of such transfer of the Excess Distribution Certificate.
Neither the Eligible Lender Trustee nor the Excess Distribution
Certificate Registrar shall have any liability to any person for any
registration or transfer of the Excess Distribution Certificate that is
not permitted or for making any payments due on the Excess Distribution
Certificate to the holder thereof or for taking any action with respect
to such holder under this Agreement. Any proposed transferee who
becomes a holder of the Excess Distribution Certificate shall agree to
indemnify the Eligible Lender Trustee, the Excess Distribution
Certificate Registrar, 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 holder of the Excess Distribution Certificate, 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.
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ARTICLE IV
Actions by Eligible Lender Trustee
SECTION 4.1 Prior Notice to the Holder of the Excess Distribution
Certificate With Respect to Certain Matters. With respect to the following
matters, the Eligible Lender Trustee shall not take action unless at least 30
days before the taking of such action, the Eligible Lender Trustee shall have
notified the holder of the Excess Distribution Certificate and each of the
Rating Agencies in writing of the proposed action and the holder of the Excess
Distribution Certificate shall not have notified the Eligible Lender Trustee in
writing prior to the 30th 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 holder of the Excess Distribution
Certificate; 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 holder of
the Excess Distribution Certificate.
SECTION 4.2 Action with Respect to Sale of the Trust Student Loans. The
Eligible Lender Trustee shall not have the power, except upon the written
direction of the holder of the Excess Distribution Certificate 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 holder of the
Excess Distribution Certificate and the delivery to the Eligible Lender Trustee
by the holder of the Excess Distribution Certificate of a certificate certifying
that the holder of the Excess Distribution Certificate reasonably believes that
the Trust is insolvent.
SECTION 4.4 Restrictions. Neither the Depositor nor the holder of the
Excess Distribution Certificate shall direct the Eligible Lender Trustee to take
or refrain from taking any action if such action or inaction would be contrary
to any obligation of the Trust or the Eligible
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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.
SECTION 4.5 Intentionally Omitted.
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.1 Application of Trust Funds.
(a) On each Distribution Date, the Excess Distribution Certificate
Paying Agent shall distribute to the holder of the Excess
Distribution Certificate any amounts payable in respect of the
Excess Distribution Certificate in accordance with the
Administration Agreement.
(b) In the event that any withholding tax is imposed on the
Trust's payment to the holder of the Excess Distribution
Certificate, such tax shall reduce the amount otherwise
distributable on the Excess Distribution Certificate.
SECTION 5.2 Method of Payment. Subject to Section 9.1(c), distributions
required to be made to the holder of the Excess Distribution Certificate on any
Distribution Date shall be made to the holder of record on the preceding Record
Date either by wire transfer, in immediately available funds, to the account of
such holder at a bank or other entity having appropriate facilities therefor, if
such holder shall have provided to the Excess Distribution Certificate Registrar
appropriate written instructions signed by two authorized officers, if any, at
least five Business Days prior to such Distribution Date, or, if not, by check
mailed to such holder at the address of such holder appearing in the Excess
Distribution Certificate Register.
SECTION 5.3 No Segregation of Moneys; No Interest. Subject to Section
5.1, moneys received by the Eligible Lender Trustee hereunder need not be
segregated in any manner except to the extent required by law or the
Administration Agreement and may be deposited under such general conditions as
may be prescribed by law, and the Eligible Lender Trustee shall not be liable
for any interest thereon.
SECTION 5.4 Reports to the Holder of the Excess Distribution
Certificate, the Internal Revenue Service and Others. The Eligible Lender
Trustee shall provide (or cause to be provided) any reports or other information
required to be provided to the holder of the Excess Distribution Certificate
pursuant to the Code, the regulations promulgated thereunder or other applicable
law. In addition, the Eligible Lender Trustee shall provide (or cause to be
provided) any information concerning the Excess Distribution Certificate to the
Internal Revenue Service or other taxing authority as required under the Code,
the regulations promulgated thereunder or other applicable law. The Eligible
Lender Trustee shall be entitled to hire an independent accounting firm to
perform the functions described in this Section 5.4, the reasonable fees and
expenses of which shall be paid by the Depositor.
SECTION 5.5 Intentionally Omitted.
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SECTION 5.6 Intentionally Omitted.
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ARTICLE VI
Authority and Duties of Eligible Lender Trustee
SECTION 6.1 General Authority. The Eligible Lender Trustee is
authorized and directed to execute and deliver the Basic Documents to which the
Trust is to be a party and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents to which the Trust is to be a
party, in each case, in such form as the Depositor shall approve as evidenced
conclusively by the Eligible Lender Trustee's execution thereof, and, on behalf
of the Trust, to direct the Indenture Trustee to authenticate and deliver Notes
denominated in U.S. Dollars in the aggregate principal amount of $2,344,179,000
and Notes denominated in Pounds Sterling in the aggregate principal amount of
Pound Sterling400,000,000. 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 holder of the Excess Distribution
Certificate subject to and in accordance with the provisions of this Agreement
and the other Basic Documents. Without limiting the foregoing, the Eligible
Lender Trustee shall on behalf of the Trust file and prove any claim or claims
that may exist on behalf of the Trust against the Depositor in connection with
any claims paying procedure as part of an insolvency or a receivership
proceeding involving the Depositor. Notwithstanding the foregoing, the Eligible
Lender Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the other Basic Documents to the extent the
Administrator has agreed in the Administration Agreement to perform and act or
to discharge any duty of the Eligible Lender Trustee hereunder or under any
other Basic Document, and the Eligible Lender Trustee shall not be held liable
for the default or failure of the Administrator to carry out its obligations
under the Administration Agreement. Except as expressly provided in the Basic
Documents, the Eligible Lender Trustee shall have no obligation to administer,
service or collect the Trust Student Loans or to maintain, monitor or otherwise
supervise the administration, servicing or collection of the Trust Student
Loans.
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SECTION 6.3 Action upon Instruction.
(a) [Reserved].
(b) The Eligible Lender Trustee shall not be required to take any
action hereunder or under any other Basic Document if the Eligible Lender
Trustee shall have reasonably determined, or shall have been advised by counsel,
that such action is likely to result in liability on the part of the Eligible
Lender Trustee or is contrary to the terms hereof, any other Basic Document or
is otherwise contrary to law.
(c) Whenever the Eligible Lender Trustee is unable to determine the
appropriate course of action between alternative courses and actions permitted
or required by the terms of this Agreement or under any other Basic Document,
the Eligible Lender Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the holder of the Excess Distribution
Certificate 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 holder of the Excess Distribution Certificate
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 holder of the
Excess Distribution Certificate, 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 holder of the Excess Distribution Certificate requesting
instruction and, to the extent that the Eligible Lender Trustee acts or refrains
from acting in good faith in accordance with any such instruction received, the
Eligible Lender Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Eligible Lender Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the other Basic
Documents, as it shall deem to be in the best interest of the holder of the
Excess Distribution Certificate, and shall have no liability to any Person for
such action or inaction.
SECTION 6.4 No Duties Except as Specified in this Agreement or in
Instructions. The Eligible Lender Trustee shall not have any duty or obligation
to manage, make any payment with respect to, register, record, sell, service,
dispose of or otherwise deal with the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Eligible Lender Trustee is a party, except as
expressly
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provided by the terms of this Agreement or in any document or written
instruction received by the Eligible Lender Trustee pursuant to Section 6.3; and
no implied duties or obligations shall be read into this Agreement or any other
Basic Document against the Eligible Lender Trustee. The Eligible Lender Trustee
shall have no responsibility for filing any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder or to
prepare or file any Commission filing for the Trust or to record this Agreement
or any other Basic Document. The Eligible Lender Trustee nevertheless agrees
that it will, at its own cost and expense, promptly take all action as may be
necessary to discharge any Liens on any part of the Trust Estate that result
from actions by, or claims against, Chase Manhattan Bank USA, National
Association in its individual capacity or as the Eligible Lender Trustee that
are not related to the ownership or the administration of the Trust Estate.
SECTION 6.5 No Action Except under Specified Documents or Instructions.
The Eligible Lender Trustee shall not otherwise deal with any part of the Trust
Estate except (i) in accordance with the powers granted to and the authority
conferred upon the Eligible Lender Trustee pursuant to this Agreement, (ii) in
accordance with the other Basic Documents to which it is a party and (iii) in
accordance with any document or instruction delivered to the Eligible Lender
Trustee pursuant to Section 6.3.
SECTION 6.6 Restrictions. The Eligible Lender Trustee shall not take
any action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Eligible Lender Trustee,
would result in the Trust's becoming taxable as a corporation for Federal income
tax purposes. Neither the Depositor nor the holder of the Excess Distribution
Certificate shall direct the Eligible Lender Trustee to take action that would
violate the provisions of this Section.
ARTICLE VII
Concerning the Eligible Lender Trustee
SECTION 7.1 Acceptance of Trusts and Duties. The Eligible Lender
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Eligible Lender Trustee also agrees to disburse all moneys actually received
by it constituting part of the Trust Estate upon the terms of this Agreement and
the other Basic Documents. The Eligible Lender Trustee shall not be answerable
or accountable hereunder or under any other Basic Document under any
circumstances, except (i) for its own willful misconduct or negligence or (ii)
in the case of the inaccuracy of any representation or warranty contained in
Section 7.3 expressly made by the Eligible Lender Trustee. In particular, but
not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) the Eligible Lender Trustee shall not be liable for any error of
judgment made by a responsible officer of the Eligible Lender Trustee;
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(b) the Eligible Lender Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the direction or
instructions of the Administrator, the Depositor or the holder of the Excess
Distribution Certificate;
(c) no provision of this Agreement or any other Basic Document shall
require the Eligible Lender Trustee to expend or risk funds or otherwise incur
any financial liability in the performance of any of its rights or powers
hereunder or under any other Basic Document, if the Eligible Lender Trustee
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured or
provided to it;
(d) under no circumstances shall the Eligible Lender Trustee be liable
for indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(e) the Eligible Lender Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Estate or for or in respect
of the validity or sufficiency of the Basic Documents, other than the
certificate of authentication on the Excess Distribution Certificate, and the
Eligible Lender Trustee shall in no event assume or incur any liability, duty,
or obligation to any Noteholder or the holder of the Excess Distribution
Certificate, other than as expressly provided for herein and in the other Basic
Documents;
(f) the Eligible Lender Trustee shall not be liable for the action or
inaction, default or misconduct of the Administrator, the Depositor, the
Indenture Trustee, 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 holder of the Excess Distribution Certificate,
unless the Depositor or such holder has offered to the Eligible Lender Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Eligible Lender Trustee therein or
thereby. The right of the Eligible Lender Trustee to perform any discretionary
act enumerated in this Agreement or in any other Basic Document shall not be
construed as a duty, and the Eligible Lender Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of any such
act.
SECTION 7.2 Intentionally Omitted.
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
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Rate Cap Counterparty, any Currency Swap Counterparties and the holder of the
Excess Distribution Certificate, that:
(a) It is duly organized and validly existing in good standing under
the laws of its governing jurisdiction and has an office located within the
State of Delaware. It has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, nor
the consummation by it of the transactions contemplated hereby nor compliance by
it with any of the terms or provisions hereof will contravene any Federal or
Delaware state law, governmental rule or regulation governing the banking or
trust powers of the Eligible Lender Trustee or any judgment or order binding on
it, or constitute any default under its charter documents or by-laws or any
indenture, mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound.
(d) It is and will maintain its status as an "eligible lender" (as such
term is defined in Section 435(d) of the Higher Education Act) for purposes of
holding legal title to the Trust Student Loans as contemplated by this Agreement
and the other Basic Documents, it has a lender identification number with
respect to the Trust Student Loans from the Department and has and will maintain
in effect a Guarantee Agreement with each of the Guarantors with respect to the
Trust Student Loans.
SECTION 7.4 Reliance; Advice of Counsel.
(a) The Eligible Lender Trustee shall incur no liability to anyone in
acting upon any signature, instrument, direction, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper
believed by it to be genuine and believed by it to be signed by the proper party
or parties. The Eligible Lender Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter the
method of the determination of which is not specifically prescribed herein, the
Eligible Lender Trustee may for all purposes hereof rely on a certificate,
signed by the president or any vice president or by the treasurer or other
authorized officers of the relevant party, as to such fact or matter and such
certificate shall constitute full protection to the Eligible Lender Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
(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
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the Eligible Lender Trustee with reasonable care, and (ii) may consult with
counsel and accountants to be selected with reasonable care and employed by it.
The Eligible Lender Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the written opinion or advice of
any such counsel or accountants and not contrary to this Agreement or any other
Basic Document.
SECTION 7.5 Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created Chase Manhattan Bank
USA, National Association acts solely as Eligible Lender Trustee hereunder and
not in its individual capacity and all Persons having any claim against the
Eligible Lender Trustee by reason of the transactions contemplated by this
Agreement or any other Basic Document shall look only to the Trust Estate for
payment or satisfaction thereof.
SECTION 7.6 Eligible Lender Trustee Not Liable for Excess Distribution
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 holder of the Excess Distribution Certificate 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 holder of the Excess Distribution
Certificate, 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.
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ARTICLE VIII
Compensation and Indemnity of Eligible Lender Trustee
SECTION 8.1 Eligible Lender Trustee's Fees and Expenses. The Eligible
Lender Trustee shall receive as compensation for its services hereunder such
fees as have been separately agreed upon before the date hereof between the
Depositor and the Eligible Lender Trustee, and the Eligible Lender Trustee shall
be entitled to be reimbursed by the Depositor, to the extent provided in such
separate agreement, for its other reasonable expenses (including the reasonable
fees and expenses of counsel and independent accountants) hereunder.
SECTION 8.2 Payments to the Eligible Lender Trustee. Any amounts paid to
the Eligible Lender Trustee pursuant to Section 8.1 hereof or pursuant to
Section 9 of the Sale Agreement, Section 4.2 of the Administration Agreement or
Section 4.2 of the Servicing Agreement shall be deemed not to be a part of the
Trust Estate immediately after such payment.
SECTION 8.3 Indemnity. The Depositor shall cause the Administrator to
indemnify the Eligible Lender Trustee in its individual capacity and any of its
officer, directors, employees and agents as and to the extent provided for in
Section 4.2 of the Administration Agreement.
ARTICLE IX
Termination of Trust Agreement
SECTION 9.1 Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) and the Trust shall
terminate and be of no further force or effect upon (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 holder of the Excess Distribution Certificate shall not (x)
operate to terminate this Agreement or the Trust, nor (y) entitle such holder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or Trust Estate nor (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a), none of the Depositor, any
Noteholder or the holder of the Excess Distribution Certificate shall be
entitled to revoke or terminate the Trust.
Upon final distribution of any funds remaining in the Trust, the
Eligible Lender Trustee shall file a certificate of cancellation of the Trust's
certificate of trust pursuant to Section 3810(c) of the Delaware Statutory Trust
Act.
ARTICLE X
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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 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
-19-
promptly appoint a successor Eligible Lender Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing
Eligible Lender Trustee so removed and one copy to the successor Eligible Lender
Trustee and payment of all fees owed to the outgoing Eligible Lender Trustee.
Any resignation or removal of the Eligible Lender Trustee and
appointment of a successor Eligible Lender Trustee pursuant to any of the
provisions of this Section shall not become effective until acceptance of
appointment by the successor Eligible Lender Trustee pursuant to Section 10.3,
payment of all fees and expenses owed to the outgoing Eligible Lender Trustee
and the filing of a certificate of amendment to the Trust's certificate of trust
pursuant to Section 3810(b) of the Delaware Statutory Trust Act. The
Administrator shall provide notice of such resignation or removal of the
Eligible Lender Trustee and to each of the Rating Agencies.
SECTION 10.3 Successor Eligible Lender Trustee. Any successor Eligible
Lender Trustee appointed pursuant to Section 10.2 shall execute, acknowledge and
deliver to the Administrator and to its predecessor Eligible Lender Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Eligible Lender Trustee shall become
effective and such successor Eligible Lender Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like effect
as if originally named as Eligible Lender Trustee. The predecessor Eligible
Lender Trustee shall upon payment of its fees and expenses deliver to the
successor Eligible Lender Trustee all documents, statements, moneys and
properties held by it under this Agreement and shall assign, if permissible, to
the successor Eligible Lender Trustee the lender identification number obtained
from the Department on behalf of the Trust; and the Administrator and the
predecessor Eligible Lender Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Eligible Lender Trustee all such rights,
powers, duties and obligations.
No successor Eligible Lender Trustee shall accept such appointment as
provided in this Section unless at the time of such acceptance such successor
Eligible Lender Trustee shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Eligible Lender Trustee
pursuant to this Section, the Administrator shall mail notice of the successor
of such Eligible Lender Trustee to the holder of the Excess Distribution
Certificate, the Indenture Trustee, the Noteholders and the Rating Agencies. If
the Administrator shall fail to mail such notice within 10 days after acceptance
of appointment by the successor Eligible Lender Trustee, the successor Eligible
Lender Trustee shall cause such notice to be mailed at the expense of the
Administrator.
SECTION 10.4 Merger or Consolidation of Eligible Lender Trustee. Any
corporation 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
-20-
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 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
-21-
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Eligible
Lender Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Eligible Lender Trustee. Each such instrument shall be filed
with the Eligible Lender Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Eligible
Lender Trustee as its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Eligible Lender Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE XI
Miscellaneous
SECTION 11.1 Supplements and Amendments. This Agreement may be amended
by the holder of the Excess Distribution Certificate 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 holder of
the Excess Distribution Certificate and the Eligible Lender Trustee, with prior
written notice to the Rating Agencies, with the consent of (i) the Class A
Noteholders evidencing not less than a majority of the Outstanding Amount of the
Class A Notes and (ii) the Class B Noteholders evidencing not less than a
majority of the Class B Notes, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
modifying in any manner the rights of the Class A Noteholders or Class B
Noteholders, as the case may be; provided, however, that no such amendment shall
(a) increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Trust Student Loans or distributions that
shall be required to be made for the benefit of the Noteholders or (b) reduce
the aforesaid percentage of the Outstanding Amount of any class of Notes
required to consent to any such amendment, without the consent of all the
outstanding Noteholders of such class.
Promptly after the execution of any such amendment or consent, the
Eligible Lender Trustee shall furnish written notification of the substance of
such amendment or consent to the holder of the Excess Distribution Certificate,
the Indenture Trustee and each of the Rating Agencies.
-22-
It shall not be necessary for the consent of the Noteholders or the
Indenture Trustee pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of provided for in this Agreement or in any other Basic Document)
and of evidencing the authorization of the execution thereof shall be subject to
such reasonable requirements as the Eligible Lender Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the Eligible
Lender Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement. The Eligible Lender Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Eligible Lender Trustee's own rights,
duties or immunities under this Agreement or otherwise.
SECTION 11.2 No Legal Title to Trust Estate in Holder of the Excess
Distribution Certificate. The holder of the Excess Distribution Certificate
shall not have legal title to any part of the Trust Estate. The holder of the
Excess Distribution Certificate shall be entitled to receive distributions with
respect to its undivided beneficial ownership interest therein only in
accordance with Section 3.13 of this Agreement. No transfer, by operation of law
or otherwise, of any right, title, or interest of the holder of the Excess
Distribution Certificate to and in its beneficial ownership interest in the
Trust Estate shall operate to terminate this Agreement or the trusts hereunder
or entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the Trust Estate.
SECTION 11.3 Limitations on Rights of Others. Except for Section 2.7,
the provisions of this Agreement are solely for the benefit of the Eligible
Lender Trustee, the Depositor, the holder of the Excess Distribution
Certificate, the Administrator and, to the extent expressly provided herein, the
Indenture Trustee and the Noteholders, and nothing in this Agreement (other than
Section 2.7), whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Trust Estate
or under this Agreement or any covenants, conditions or provisions contained
herein.
SECTION 11.4 Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all notices shall be in writing and shall be deemed given
upon receipt by the intended recipient or three Business Days after mailing if
mailed by certified mail, postage prepaid (except that notice to the Eligible
Lender Trustee shall be deemed given only upon actual receipt by the Eligible
Lender Trustee), if to the Eligible Lender Trustee, addressed to its Corporate
Trust Office with copies to The Bank of New York, 0 Xxxxx XxXxxxx Xx., Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Corporate Trust - Structured Finance; if to
the Depositor, addressed to SLM Funding LLC, 00000 Xxxxxx Xxx Xxxxx, Xxxxxx,
Xxxxxxxx 00000, Attention: Legal Department, or, as to each party, at such other
address as shall be designated by such party in a written notice to each other
party.
SECTION 11.5 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
-23-
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 holder of the Excess Distribution Certificate and its successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a Noteholder or the holder of
the Excess Distribution Certificate shall bind the successors and assigns of
such holder.
SECTION 11.8 No Petition.
(a) Neither the Depositor, nor any other holder of the Excess
Distribution Certificate (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 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
holder of the Excess Distribution Certificate 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 holder of
the Excess Distribution Certificate.
(b) The Eligible Lender Trustee (not in its individual capacity but
solely as Eligible Lender Trustee), by entering into this Agreement, the holder
of the Excess Distribution Certificate by accepting the Excess Distribution
Certificate, and the Indenture Trustee and each Noteholder by accepting the
benefits of this Agreement, hereby covenant and agree that they will not at any
time institute against the Depositor or the Trust, or join in any institution
against the Depositor or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency, receivership or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes, this Agreement or any
of the other Basic Documents. 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 holder of the Excess Distribution
Certificate by accepting the Excess Distribution Certificate acknowledges that
such holder's certificate represents beneficial interests in the Trust only and
do not represent interests in or obligations of the Depositor, the Servicer, the
Administrator, the Eligible Lender Trustee, the Indenture Trustee, 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.
-24-
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.
-25-
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.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Eligible
Lender Trustee
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Vice President
SLM FUNDING LLC,
as the Depositor
By: /s/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Vice President
-26-
Acknowledged and agreed as to
Section 3.13(c) and Section 3.13(g)
of this Amended and Restated Trust Agreement
THE BANK OF NEW YORK,
not in its individual capacity but solely
as the initial Excess Distribution
Certificate Paying Agent
By: /s/ XXXX X. XXXXXXX
Name: Xxxx X. Xxxxxxx
Title: Agent
-27-
EXHIBIT A
TO THE TRUST AGREEMENT
[PLEASE SEE ATTACHED]
A-1
EXHIBIT B
FORM OF
CERTIFICATE OF TRUST
OF
SLM STUDENT LOAN
TRUST 2004-3
This Certificate of Trust of SLM STUDENT LOAN TRUST 2004-3 (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 2004-3.
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 Xxxxxx Xxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
The Bank of New York
as Excess Distribution Certificate Registrar
000 Xxxxxxx Xxxxxx, 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust - Structured Finance
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 2004-3,
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 Xxxxxx Xxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
The Bank of New York
as Excess Distribution Certificate Registrar
000 Xxxxxxx Xxxxxx, 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust - Structured Finance
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 2004-3,
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, on behalf of or with
the assets of, an employee benefit plan or other retirement arrangement (a
"Plan") which is subject to Title I of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and/or Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), (e) we are acquiring the Certificate for
investment for our own account and not with a view to any distribution of the
Certificate (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificate in accordance with clause (g) below), (f)
we have not offered or sold the Certificate to, or solicited offers to buy the
Certificate
D-1-1
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.
Very truly yours,
----------------------------------
[Print Name of Transferee]
By:
-------------------------------
Authorized Officer
D-1-2
EXHIBIT D-2
[FORM OF TRANSFEREE LETTER (RULE 144A)]
[Date]
Xxxxxx Mae, Inc.
as Administrator
00000 Xxxxxx Xxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
The Bank of New York
as Excess Distribution Certificate Registrar
000 Xxxxxxx Xxxxxx, 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust - Structured Finance
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 2004-3,
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
for, on behalf of or with the assets of, an employee benefit plan or other
retirement arrangement (a "Plan") which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and/or Section
4975 of the Internal Revenue Code of 1986, as amended (the "Code"), (e) we have
not, nor has anyone acting on our behalf offered, transferred, pledged, sold or
otherwise disposed of the Certificate, any interest in the Certificate or any
other similar security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Certificate, any interest in the Certificate
or any other similar security from, or otherwise approached or negotiated with
respect to the Certificate, any interest in the Certificate or any other similar
security with, any person in any manner, or made any general solicitation by
means
-29-
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.
Very truly yours,
----------------------------------
[Print Name of Transferee]
By:
-------------------------------
Authorized Officer
X-0-0
XXXXX 0
XXXXXXXXX XXXXXXXXXXXXX XXXXX XXXXXX UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Letter to which this certification relates
with respect to the Certificate described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer
of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the
Buyer owned and/or invested on a discretionary basis $___________(1)
in securities (except for the excluded securities referred to below)
as of the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A and (ii) the Buyer
satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501 (c) (3) of the
Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or
territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached
hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
--------
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
Annex 1-1
___ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. The Buyer is a small
business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
___ Qualified Institutional Buyers. The Buyer owned and/or invested
on a discretionary basis less than $100,000,000, but it is an
entity in which all of the equity owners are qualified
institutional buyers.
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if
the Buyer is a dealer, (iii) securities issued or guaranteed by the
U.S. or any instrumentality thereof, (iv) bank deposit notes and
certificates of deposit, (v) loan participations, (vi) repurchase
agreements, (vii) securities owned but subject to a repurchase
agreement and (viii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer
used the cost of such securities to the Buyer and did not include
any of the securities referred to in the preceding paragraph, except
(i) where the Buyer reports its securities holdings in its financial
statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been
published. If clause (ii) in the preceding sentence applies, the
securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by
subsidiaries of the Buyer, but only if such
Annex 1-2
subsidiaries are consolidated with the Buyer in its financial
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed
under the Buyer's direction. However, such securities were not
included if the Buyer is a majority-owned, consolidated subsidiary
of another enterprise and the Buyer is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificate are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer may be in
reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such
notice is given, the Buyer's purchase of the Certificate will
constitute a reaffirmation of this certification as of the date of
such purchase. In addition, if the Buyer is a bank or savings and
loan is provided above, the Buyer agrees that it will furnish to
such parties updated annual financial statements promptly after they
become available.
------------------------------------
[Print Name of Transferee]
By:
---------------------------------
Name:
Title:
Date:
----------------------
Annex 1-3
ANNEX 2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Letter to which this certification relates
with respect to the Certificate described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the
Buyer is a "qualified institutional buyer" as that term is defined
in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because Buyer is part of a Family of Investment Companies (as
defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment
Company Act of 1940, as amended and (ii) as marked below, the Buyer
alone, or the Buyer's Family of Investment Companies, owned at least
$100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal
year. For purposes of determining the amount of securities owned by
the Buyer or the Buyer's Family of Investment Companies, the cost of
such securities was used, except (i) where the Buyer or the Buyer's
Family of Investment Companies reports its securities holdings in
its financial statements on the basis of their market value, and
(ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
___ The Buyer owned $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $_____________ in securities (other than
the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that
have the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the
same parent or because one investment adviser is a majority owned
subsidiary of the other).
Annex 2-1
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
