Exhibit 99.3
ADMINISTRATION AGREEMENT dated as of November [o], 2001
among XXXXX FARGO STUDENT LOAN TRUST 2001-1, a Delaware trust (the
"Issuer"), XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a
national banking association, as administrator (the "Administrator"),
and CHASE MANHATTAN BANK, a New York banking corporation, not in its
individual capacity but solely as Indenture Trustee (the "Indenture
Trustee").
WITNESSETH
WHEREAS, the Issuer was formed pursuant to the Trust Agreement dated
as of November [o], 2001 (the "Trust Agreement") between Xxxxx Fargo Student
Loans Receivables I, LLC, as depositor, and Bank One, National Association
("Bank One"), as eligible lender trustee (the "Eligible Lender Trustee") and
is issuing the Class A-1 Floating Rate Asset-Backed Senior Notes (the "Class
A-1 Notes"), the Class A-2 Floating Rate Asset-Backed Senior Notes (the "Class
A-2 Notes" and, together with the Class A-1 Notes, the "Senior Notes") and the
Class B Floating Rate Asset-Backed Subordinate Notes (the "Subordinate Notes"
and, together with the Senior Notes, the "Notes") pursuant to the Indenture
dated as of November [o], 2001 (the "Indenture"), between the Issuer and the
Indenture Trustee, (capitalized terms used herein and not defined herein shall
have the meanings assigned to such terms in Appendix A hereto, which also
contains rules of usage and construction that shall be applicable herein); and
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes, including the Basic Documents; and
WHEREAS, pursuant to the Basic Documents, the Issuer and the Eligible
Lender Trustee are required to perform certain duties in connection with the
Notes and the Collateral therefor pledged pursuant to the Indenture; and
WHEREAS, the Issuer and the Eligible Lender Trustee desire to have
the Administrator perform certain of the duties of the Issuer and the Eligible
Lender Trustee referred to in the preceding clause, and to provide such
additional services consistent with the terms of this Agreement and the Basic
Documents as the Issuer and the Eligible Lender Trustee may from time to time
request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Eligible Lender Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
Section 1. Representations of the Administrator. The Administrator
makes the following representations on which the Issuer, the Eligible Lender
Trustee and any Swap
Counterparties are deemed to have relied. The representations speak as of the
execution and delivery of this Agreement and as of the Closing Date and shall
survive the sale of the Financed Student Loans to the Eligible Lender Trustee
on behalf of the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(a) Organization and Good Standing. The Administrator is a
national banking association duly organized and validly existing in
good standing under the laws of the United States. It has all
requisite power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) Power and Authority of the Administrator. The
Administrator has taken all 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) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Administrator, enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization and similar laws relating to creditors'
rights generally and subject to general principles of equity.
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
hereof or thereof do not conflict with, result in any breach of any
of the terms and provisions of, nor constitute (with or without
notice or lapse of time or both) a default under, the charter or
by-laws of the Administrator, or any indenture, agreement or other
instrument to which the Administrator is a party or by which it shall
be bound; or result in the creation or imposition of any Lien upon
any of its material properties pursuant to the terms of any such
indenture, agreement or other instrument; or violate any law or, to
the knowledge of the Administrator, any order, rule or regulation
applicable to the Administrator of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Administrator or its
properties. Performance by the Administrator with the terms hereof
and with the transactions contemplated by this Agreement shall not
result in the loss of any Guarantee Payments by the Trust or any
reinsurance payments with respect to any Financed Student Loan by the
applicable Guarantor.
(e) No Proceedings. There are no proceedings or
investigations pending against the Administrator or, to its best
knowledge, threatened against the Administrator, before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Administrator or its
properties: (i) asserting the invalidity of this Agreement, the
Indenture or any of the other Basic Documents to which the
Administrator is a party, (ii) seeking to prevent the issuance of the
Notes or the consummation of any of the transactions contemplated by
this Agreement, the Indenture or any of the other Basic Documents,
(iii) seeking any determination or ruling that could reasonably be
expected to have a material and adverse effect on the performance by
the Administrator of its obligations under, or the validity or
enforceability of, this
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Agreement, the Indenture, any of the other Basic Documents or the
Notes or (iv) seeking to affect adversely the federal or state income
tax attributes of the Issuer or the Notes.
(f) All Consents. All authorizations, consents, licenses,
orders or approvals of or registrations or declarations with any
court, regulatory body, administrative agency or other government
instrumentality required to be obtained, effected or given by the
Administrator in connection with the execution and delivery by the
Administrator of this Agreement and the performance by the
Administrator of its duties as contemplated by this Agreement have in
each case been duly obtained, effected or given and are in full force
and effect.
Section 2. Duties of the Administrator.
(a) Duties with Respect to the Basic Documents. The Administrator
shall perform all its duties as Administrator and the duties of the Issuer
under the Basic Documents. In addition, the Administrator shall consult with
the Eligible Lender Trustee as the Administrator deems appropriate regarding
the duties of the Issuer under the Basic Documents. The Administrator shall
monitor the performance of the Issuer and shall advise the Eligible Lender
Trustee when action is necessary to comply with the Issuer's duties under the
Basic Documents. The Administrator shall prepare for execution by the Issuer
or shall cause the preparation by other appropriate Persons of all such
documents, reports, filings, instruments, certificates and opinions as it
shall be the duty of the Issuer to prepare, file or deliver pursuant to the
Basic Documents. In furtherance of the foregoing, the Administrator shall take
all appropriate action that is the duty of the Issuer to take pursuant to the
Indenture, including such of the foregoing as are required with respect to the
following matters (references below in this subsection (a) being to sections
of the Indenture):
(A) the duty to cause the Note Registrar to keep the Note
Register and to give the Indenture Trustee prompt notice of any
appointment of a new Note Registrar and the location, or change in
location, of the Note Register (Section 2.04);
(B) the fixing or causing to be fixed of any specified
record date and the timely notification of the Indenture Trustee and
Noteholders with respect to special payment dates, if any (Section
2.07(c));
(C) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes and delivery of
the same to the Indenture Trustee (Section 2.02);
(D) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the
release of collateral (Section 2.09);
(E) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for a transfer
of the Subordinate Notes (Section 2.04);
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(F) the duty to cause the Note Registrar to maintain on
behalf of the Issuer an office in the Borough of Manhattan, The City
of New York, for registration of transfer or exchange of the Notes
(Section 3.02);
(G) the duty to cause newly appointed Paying Agents, if any,
to deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.03);
(H) the direction to the Paying Agents to deposit moneys
with the Indenture Trustee (Section 3.03);
(I) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Collateral and each
other instrument and agreement included in the Indenture Trust Estate
(Section 3.04);
(J) the preparation of all supplements, amendments,
financing statements, continuation statements, instruments of further
assurance and other instruments, in accordance with Section 3.05 of
the Indenture, necessary to protect the Indenture Trust Estate
(Section 3.05);
(K) the delivery by the Issuer of the Opinion of Counsel on
the Closing Date and the annual delivery of Opinions of Counsel, in
accordance with Section 3.06 of the Indenture, as to the Indenture
Trust Estate, and the annual delivery of the Officers' Certificate of
the Issuer and certain other statements, in accordance with Section
3.09 of the Indenture, as to compliance with the Indenture (Sections
3.06 and 3.09);
(L) the identification to the Indenture Trustee in an
Officers' Certificate of the Issuer of a Person with whom the Issuer
has contracted to perform its duties under the Indenture (Section
3.07(b));
(M) the notification of the Indenture Trustee, the Rating
Agencies and each Swap Counterparty, if any, of any Servicer Default
pursuant to the Servicing Agreement and, if such Servicer Default
arises from the failure of the Servicer to perform any of its duties
under the Servicing Agreement, the taking of all reasonable steps
available to remedy such failure (Section 3.07(d));
(N) the preparation and obtaining of documents and
instruments required for the release of the Issuer from its
obligations under the Indenture (Section 3.10);
(O) the prompt delivery of notice to the Indenture Trustee,
the Rating Agencies and any Swap Counterparties of each Event of
Default, any Default under Section 5.01(iii) of the Indenture and
each default by the Servicer under the Servicing Agreement or by the
Seller under the Loan Sale Agreement (Section 3.18);
(P) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officers' Certificate of the Issuer and
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the obtaining of the Opinion of Counsel and the Independent
Certificate relating thereto (Section 4.01);
(Q) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Indenture Trust
Estate in a commercially reasonable manner if an Event of Default
shall have occurred and be continuing (Section 5.04);
(R) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate
trustee and any written instruments necessary in connection with the
resignation or removal of any co-trustee or separate trustee
(Sections 6.08 and 6.10);
(S) the furnishing of the Indenture Trustee with the names
and addresses of Noteholders during any period when the Indenture
Trustee is not the Note Registrar (Section 7.01);
(T) the preparation and, after execution by the Issuer, the
filing with the Commission, any applicable State agencies and the
Indenture Trustee of documents required to be filed on a periodic
basis with, and summaries thereof as may be required by rules and
regulations prescribed by, the Commission and any applicable State
agencies and the transmission of such summaries to the Noteholders
(Section 7.03);
(U) the opening of one or more accounts in the Issuer's
name, the preparation of Issuer Orders, Officers' Certificates of the
Issuer and Opinions of Counsel and all other actions necessary with
respect to investment and reinvestment of funds in the Trust Accounts
(Sections 8.02 and 8.03);
(V) the preparation of an Issuer Request and Officers'
Certificate of the Issuer and the obtaining of an Opinion of Counsel
and Independent Certificates, if necessary, for the release of the
Indenture Trust Estate (Sections 8.04 and 8.05);
(W) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the Noteholders, each Rating Agency and
any Swap Counterparties of notices with respect to such supplemental
indentures (Sections 9.01, 9.02 and 9.03);
(X) the preparation of or obtaining of the documents and
instruments required for the execution and authentication of new
Notes conforming to any supplemental indenture and the delivery of
the same to the Eligible Lender Trustee and the Indenture Trustee,
respectively (Section 9.06);
(Y) the notification of Noteholders and any Swap
Counterparties of redemption of the Notes or the duty to cause the
Indenture Trustee to provide such notification (Section 10.02);
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(Z) the preparation of all Officers' Certificates of the
Issuer, Opinions of Counsel and Independent Certificates with respect
to any requests by the Issuer to the Indenture Trustee to take any
action under the Indenture (Section 11.01(a));
(AA) the preparation and delivery of Officers' Certificates
of the Issuer and the obtaining of Independent Certificates, if
necessary, for the release of property from the lien of the Indenture
(Section 11.01(b));
(BB) the preparation and timely delivery to Noteholders and
the Indenture Trustee of any agreements with respect to alternate
payment and notice provisions (Section 11.06);
(CC) the recording of the Indenture, if applicable (Section
11.15);
(DD) the duty to obtain a new servicer as Successor Servicer
and to enter into an agreement with such Successor Servicer (Section
3.07(e));
(EE) the notification of the termination of the Servicer and
the appointment of a Successor Servicer (Section 3.07(f));
(FF) the duty to cause the Servicer to comply with the
Servicing Agreement (Section 3.14); and
(GG) the delivery of all documents and opinions to be
provided by the Issuer under Part 3 of any Swap Agreements,
performing all obligations of the Issuer under Part 5(b), 5(i) and
Part 5(o) of any Swap Agreements, and providing all notices and
consents required by the Issuer under any Swap Agreements.
The Administrator shall provide to the Eligible Lender Trustee (i) a
list of jurisdictions in which the Issuer is required to be licensed and (ii)
any other information necessary for the Eligible Lender Trustee to fulfill its
obligations under Section 7.08 of the Trust Agreement.
(b) Duties with Respect to the Issuer. (i) In addition to the duties
of the Administrator set forth above and in the other Basic Documents, the
Administrator shall perform such calculations and shall prepare for execution
by the Issuer or the Eligible Lender Trustee or shall cause the preparation by
other appropriate Persons of all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Issuer
or the Eligible Lender Trustee to prepare, file or deliver pursuant to the
Basic Documents, and at the request of the Eligible Lender Trustee shall take
all appropriate action that it is the duty of the Issuer to take pursuant to
the Basic Documents. In furtherance thereof, the Eligible Lender Trustee
shall, on behalf of itself and of the Issuer, execute and deliver to the
Administrator and to each successor Administrator appointed pursuant to the
terms hereof, one or more powers of attorney substantially in the form of
Exhibit A hereto, appointing the Administrator the attorney-in-fact of the
Eligible Lender Trustee and the Issuer for the purpose of executing on behalf
of the Eligible Lender Trustee and the Issuer all such documents, reports,
filings, instruments, certificates and opinions. Subject to Section 9 of this
Agreement, and in accordance with the directions of the
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Eligible Lender Trustee, the Administrator shall administer, perform or
supervise the performance of such other activities in connection with the
Collateral (including the Basic Documents) as are not covered by any of the
foregoing provisions and as are expressly requested by the Eligible Lender
Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Administrator shall deliver to the Eligible
Lender Trustee, the Indenture Trustee, the Rating Agencies and the Servicer,
an Officers' Certificate of the Administrator containing all the information
necessary:
(A) to pay the Department any Consolidation Fees due and
payable to the Department, to the extent such Consolidation Fees are
not being deducted by the Department out of Special Allowance
Payments or Interest Subsidy Payments, which Officers' Certificate
shall be delivered on the date that is three Business Days prior to
the date such fees are to be remitted to the Department;
(B) during the Funding Period to pay the Depositor, pursuant
to Section 2.02 of the Loan Sale Agreement, on each Transfer Date,
the Loan Purchase Amount for Prefunded Loans or Serial Loans
purchased by the Eligible Lender Trustee on behalf of the Issuer on
such date and, on each Transfer Date after the end of the Funding
Period, the Loan Purchase Amount for Serial Loans so purchased on
such date, which Officers' Certificate, in each case, shall be
delivered on the Business Day preceding such Transfer Date;
(C) to pay the Servicer the Servicing Fee due on each
Monthly Payment Date pursuant to Section 2(d)(iv)(A), 2(d)(v)(A) and
2(e)(iv)(A);
(D) to make all the distributions required by Sections 2(d),
2(e), 2(f) and 2(j), for the Monthly Collection Period or Collection
Period, as the case may be, preceding the date of such Officers'
Certificate, which Officers' Certificate shall be delivered on each
Determination Date.
In addition, prior to each Determination Date immediately preceding a
Quarterly Payment Date, the Administrator shall determine, in compliance with
its obligation to prepare an Officers' Certificate on such Determination Date
pursuant to this Section, the Class A-1 Note Rate, the Class A-2 Note Rate and
the Subordinate Note Rate that will be applicable to the Quarterly Payment
Date following such Determination Date. In connection therewith, the
Administrator shall calculate Three-Month LIBOR, the Class A-1 Note Rate, the
Class A-2 Note Rate and the Subordinate Note Rate in accordance with the
respective definitions thereof.
(iii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Administrator shall be responsible for the
performance of the duties of the Eligible Lender Trustee set forth in Section
5.02 of the Trust Agreement with respect to, among other things, any tax
information or accounting report required to be distributed to Note Owners.
(iv) The Administrator shall perform the duties of the Administrator
specified in Sections 10.02 and 10.03 of the Trust Agreement required to be
performed in connection with
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the resignation or removal of the Eligible Lender Trustee and the appointment
of a successor Eligible Lender Trustee, and any other duties expressly
required to be performed by the Administrator under the Trust Agreement and
the other Basic Documents, including those under Sections 6.07 and 6.08 of the
Indenture and those under Section 6.07 of the Trust Agreement.
(v) As described in Article IX of the Trust Agreement, notice of any
termination of the Trust shall be given by the Administrator to the Eligible
Lender Trustee, the Indenture Trustee and any Swap Counterparties as soon as
practicable after the Administrator has received notice thereof.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer or the Noteholders
than would be available from unaffiliated parties.
(c) Establishment and Maintenance of Trust Accounts.
(i) The Administrator, for the benefit of the Issuer, shall establish
and maintain in at the Indenture Trustee an Eligible Deposit Account in the
name of the Trust (the "Collection Account"). The Collection Account will
initially be established as a segregated trust account in the name of the
Indenture Trustee with the corporate trust department of Chase Manhattan Bank.
(ii) The Administrator shall establish and maintain at the Indenture
Trustee an Eligible Deposit Account in the name of the Trust (the "Reserve
Account"). The Reserve Account will initially be established as a segregated
trust account in the name of the Indenture Trustee with the corporate trust
department of Chase Manhattan Bank.
(iii) The Administrator, for the benefit of the Noteholders, if there
are funds to be deposited in a prefunding account, shall establish and
maintain at the Indenture Trustee an Eligible Deposit Account in the name of
the Trust (the "Prefunding Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Indenture
Trustee, on behalf of the Noteholders. The Prefunding Account will initially
be established as a segregated trust account in the name of the Indenture
Trustee with Chase Manhattan Bank.
(iv) Funds on deposit in the Collection Account, the Reserve Account
and the Prefunding Account (collectively, the "Trust Accounts") shall be
invested by the Indenture Trustee (or any custodian or designated agent with
respect to any amounts on deposit in such accounts) in Eligible Investments
pursuant to written instructions by the Administrator; provided, however, it
is understood and agreed that the Indenture Trustee shall not be liable for
any loss arising from such investment in Eligible Investments. All such
Eligible Investments shall be held by (or by any custodian on behalf of) the
Indenture Trustee for the benefit of the Issuer; provided, however, that on
the Business Day preceding each Monthly Payment Date all interest and other
investment income (net of losses and investment expenses) on funds on deposit
therein shall be deposited into the Collection Account and shall be deemed to
constitute a portion of the
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Monthly Available Funds for each Monthly Payment Date that is not a Quarterly
Payment Date, and a portion of the Available Funds for each Quarterly Payment
Date. Other than as permitted in writing by the Rating Agencies, funds on
deposit in the Trust Accounts shall be invested in Eligible Investments that
will mature so that funds sufficient to pay the Servicing Fee and the
Administration Fee (and all other amounts payable on a Quarterly Payment Date)
will be available in the Collection Account on the Business Day preceding each
Monthly Payment Date that is not a Quarterly Payment Date, so that funds on
deposit in the Prefunding Account that are required, in the judgment and at
the discretion of the Administrator, to make Additional Fundings during the
Funding Period will be available for such purpose and so that the remaining
such funds will be available at the close of business on the Business Day
preceding each Quarterly Payment Date.
(v) (A) The Indenture Trustee, on behalf of the Noteholders and any
Swap Counterparties, shall possess all right, title and interest in all funds
on deposit from time to time in the Trust Accounts and in all proceeds thereof
(including all income thereon) and all such funds, investments, proceeds and
income shall be part of the Trust Estate. The Trust Accounts shall be under
the sole dominion and control of the Indenture Trustee for the benefit of the
Noteholders and any Swap Counterparties. If, at any time, any of the Trust
Accounts ceases to be an Eligible Deposit Account, the Indenture Trustee (or
the Administrator on its behalf) agrees, by its acceptance hereto, that it
shall within 10 Business Days (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may consent) establish a new
Trust Account as an Eligible Deposit Account and shall transfer any cash
and/or any investments to such new Trust Account. In connection with the
foregoing, the Administrator agrees that, in the event that any of the Trust
Accounts are not accounts with the Indenture Trustee, the Administrator shall
notify the Indenture Trustee and any Swap Counterparties in writing promptly
upon any of such Trust Accounts ceasing to be an Eligible Deposit Account.
(B) With respect to the Trust Account Property, the
Indenture Trustee agrees, by its acceptance hereof, that:
(1) any Trust Account Property that is held in
deposit accounts shall be held solely in Eligible Deposit
Accounts, subject to the next to the last sentence of clause
(vi)(A) above; and each such Eligible Deposit Account shall
be subject to the exclusive custody and control of the
Indenture Trustee, and the Indenture Trustee shall have sole
signature authority with respect thereto;
(2) any Trust Account Property that constitutes
Physical Property shall be Delivered to the Indenture
Trustee in accordance with paragraph (a) of the definition
of "Delivery";
(3) any Trust Account Property that is a book-entry
security held through the Federal Reserve System pursuant to
Federal book-entry regulations shall be Delivered in
accordance with paragraph (b) of the definition of
"Delivery"; and
(4) any Trust Account Property that is an
"uncertificated security" under Article VIII of the UCC and
that is not governed by clause (3) above shall be
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Delivered to the Indenture Trustee in accordance with
paragraph (c) of the definition of "Delivery".
(C) The Administrator shall have the power, revocable for
cause or upon the occurrence and during the continuance of an
Administrator Default by the Indenture Trustee or by the Eligible
Lender Trustee with the consent of the Indenture Trustee, to instruct
the Indenture Trustee to make withdrawals and payments from the Trust
Accounts for the purpose of permitting the Servicer or the Eligible
Lender Trustee to carry out their respective duties under the
Servicing Agreement and the Trust Agreement, permitting the Indenture
Trustee to carry out its duties under the Indenture and withdrawing
any amounts deposited in error into such accounts.
(vi) On each Determination Date, the Administrator shall calculate
all amounts required to determine the amounts to be deposited in the
Collection Account and the other Trust Accounts and the amounts to be
distributed therefrom on the related Monthly Payment Date, Quarterly Payment
Date or other dates from which amounts therein are to be distributed.
(d) Withdrawals from the Collection Account. The Administrator shall
instruct the Indenture Trustee in writing (based, in the case of clauses (iv)
and (v) below, on the information contained in the servicer's report delivered
with respect to the applicable Determination Date pursuant to Section 3.07 of
the Servicing Agreement) to make withdrawals from amounts deposited in the
Collection Account at the following times and for the following purposes, and
the Indenture Trustee shall comply with such instructions:
(i) Reserved.
(ii) from time to time during each Collection Period to pay the
Department any Consolidation Fees due and payable to the Department, to the
extent such Consolidation Fees are not being deducted by the Department out of
Special Allowance Payments or Interest Subsidy Payments;
(iii) (A) on each Add-on Consolidation Loan Funding Date after the
Funding Period, to prepay in full any Add-on Consolidation Loan pursuant to
Section 6.07 of the Trust Agreement; provided, however, that the amount paid
to prepay any Add-on Consolidation Loan on any date since the preceding
Quarterly Payment Date shall not exceed the Net Principal Cash Flow Amount for
such date minus the aggregate Purchase Collateral Balance remitted for the
purchase of Serial Loans on each Transfer Date since the preceding Quarterly
Payment Date after the Funding Period pursuant to Section 2(d)(iii)(B); and
(B) on each Transfer Date after the Funding Period to pay to
the Depositor, pursuant to Section 2.02 of the Loan Sale Agreement,
the aggregate Loan Purchase Amount for Serial Loans purchased by the
Eligible Lender Trustee on behalf of the Issuer on such date;
provided that the amount paid to the Seller for the purchase of
Serial Loans on such Transfer Date plus the amount of funds remitted
for the purchase of Serial Loans on each Transfer Date since the
preceding Quarterly Payment Date on any Transfer Date after the
Funding Period shall not exceed the Net Principal Cash Flow Amount
for such Transfer Date minus the sum of (i) all amounts paid since
the last Quarterly Payment
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Date pursuant to Section 2(d)(iii)(A) to prepay any Add-on
Consolidation Loan not held by the Issuer and (ii) all amounts which
the Administrator reasonably estimates will be required to prepay
Add-on Consolidation Loans pursuant to Section 2(d)(iii)(A) during
the remainder of the Collection Period;
(iv) on each Monthly Payment Date that is not a Quarterly Payment
Date, to pay to the Servicer, the Servicing Fee with respect to the preceding
calendar month and all unpaid Servicing Fees from prior months by 11:00 a.m.
(New York time), to the extent of Monthly Available Funds for such Monthly
Payment Date in the Collection Account.
(v) on each Quarterly Payment Date, to make the following deposits
and distributions to the Persons or the account specified below by 11:00 a.m.
(New York time), to the extent of Available Funds for such Quarterly Payment
Date in the Collection Account, in the following order of priority:
(A) to the Servicer, the Servicing Fee with respect to the
preceding calendar month and all unpaid Servicing Fees from prior
months;
(B) to the Administrator, from the amount of the Available
Funds remaining after the application of clause (A), the
Administration Fee with respect to the preceding calendar month and
all unpaid Administration Fees from prior months;
(C) to the Indenture Trustee for distribution pursuant to
Section 8.02(c) of the Indenture, in the following order of priority,
from the amount of the Available Funds remaining after the
application of clauses (A) and (B): (i) the Class A-1 Noteholders'
Interest Distribution Amount, the Class A-2 Noteholders' Interest
Distribution Amount, the Trust Swap Payment Amounts, if any, and the
remainder of any Termination Payment to the extent that the remainder
of such Termination Payment is owed to any Swap Counterparties
following a Redemption Event (as defined in any related Swap
Agreement) or the Trust is the defaulting party (other than an Event
of Default specified in Section 5(a)(i) of any Swap Agreements), pro
rata, based on the ratio of each such amount to the total of such
amounts; (ii) the Subordinate Noteholders' Interest Distribution
Amount; (iii) the Senior Noteholders' Principal Distribution Amount;
and (iv) the Subordinate Noteholders' Principal Distribution Amount,
each with respect to such Quarterly Payment Date; and
(D) to the Reserve Account, the amount of Available Funds
remaining after the application of clauses (A) through (C).
Except in the case of amounts deposited into the Reserve
Account pursuant to clause (v)(D) of this Section 2(d), amounts
properly calculated, reported and withdrawn from the Collection
Account and properly distributed pursuant to this Section 2(d) in
accordance with the terms hereof shall be deemed released from the
Trust Estate and the security interest therein granted to the
Indenture Trustee, and the Persons to whom such amounts are
distributed shall in no event be required to refund any such
distributed amounts.
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(e) Reserve Account. (i) The Seller shall deposit the Reserve Account
Initial Deposit into the Reserve Account as required by Section 2.01(b) of the
Loan Sale Agreement.
(ii) With respect to any amount in the Reserve Account on any
Quarterly Payment Date (after giving effect to all deposits thereto on such
Quarterly Payment Date and to all withdrawals therefrom necessary to make the
distributions required to be made from the Available Funds on such Quarterly
Payment Date) in excess of the Specified Reserve Account Balance for such
Quarterly Payment Date (the "Reserve Account Excess"), the Administrator shall
instruct the Indenture Trustee to apply such Reserve Account Excess to the
following (in the priority indicated): (i) if such Quarterly Payment Date is
on or prior to the Parity Date (after application of all other amounts paid to
the Noteholders on such Quarterly Payment Date, including the application of
funds in the Prefunding Account), to pay to the Indenture Trustee for
distribution to Noteholders pursuant to Section 8.02(d) of the Indenture an
amount equal to the lesser of (x) the remaining amount of such excess and (y)
the amount by which the aggregate principal amount of the Notes, after giving
effect to all other distributions in respect of principal of the Notes on such
Quarterly Payment Date, exceeds the sum of the Pool Balance plus the amount on
deposit in the Prefunding Account as of the close of business on the last day
of the related Collection Period; (ii) to any Swap Counterparties, all
Termination Payments due under any Swap Agreements to the extent that any
related Swap Counterparty is the Defaulting Party (as such term is defined in
any related Swap Agreement), the Trust is the defaulting party under Section
5(a)(i) of any related Swap Agreement or a Termination Event (other than an
Additional Termination Event (as defined in any Swap Agreements) in respect of
a Redemption Event (as defined in any Swap Agreements)) shall have occurred;
and (iii) any remaining amount of such excess, after application of clauses
(i) through (ii) above will be released to the Depositor; provided, however,
that if and to the extent that (A) the amount of the Servicer's unpaid
repurchase obligation pursuant to Section 3.05 of the Servicing Agreement
exceeds $500,000 as of the last day of the preceding Collection Period (and
such Servicer has not been replaced by a Successor Servicer), or (B) the
Department fails by the last day of such preceding Collection Period to
satisfy its obligations to reimburse or replace a Federal Guarantor pursuant
to the Higher Education Act, then any Reserve Fund Excess remaining on such
Quarterly Payment Date for distribution to the Depositor pursuant to the
clause (iii) above shall not be so distributed and shall be retained in the
Reserve Account for application in accordance with this Agreement. Amounts
properly calculated, reported and distributed pursuant to this Section
2(e)(ii) shall be deemed released from the Trust Estate the security interest
therein granted to the Indenture Trustee, the Seller and the Depositor shall
in no event thereafter be required to refund any such distributed amounts.
(iii) Following the payment in full of the aggregate outstanding
principal amount of the Notes and of all other amounts owing or to be
distributed hereunder or under the Indenture to Noteholders, the Seller, the
Servicer or the Administrator and the termination of the Trust, any amount
remaining on deposit in the Reserve Account shall be distributed to the
Depositor. The Depositor shall in no event be required to refund any amounts
properly calculated, reported and distributed pursuant to this Section
2(e)(iii).
(iv) (A) In the event that the Servicing Fee for any Monthly Payment
Date exceeds the amount distributed to the Servicer pursuant to Sections
2(d)(iv)(A) or 2(d)(v)(A) and
12
Section 2(k)(ii)(A) on such Monthly Payment Date, the Administrator shall
instruct the Indenture Trustee to withdraw from the Reserve Account on each
Monthly Payment Date an amount equal to such excess and to distribute such
amount to the Servicer.
(B) [Reserved.]
(C) For any Quarterly Payment Date, in the event that the
Class A-1 Noteholders' Interest Distribution Amount, the Class A-2
Noteholders' Interest Distribution Amount, the Trust Swap Payment
Amounts, if any, the remainder of any Termination Payment to any Swap
Counterparties to the extent that the Trust is the defaulting party
(other than an Event of Default specified in Section 5(a)(i) of any
related Swap Agreement), the Subordinate Noteholders' Interest
Distribution Amount, the Class A Noteholders' Principal Distribution
Amount and the Subordinate Noteholders' Principal Distribution
Amount, each for such Quarterly Payment Date, exceed the sum of the
amount distributed to the Indenture Trustee for distribution to the
Noteholders and any related Swap Counterparty pursuant to Section
2(d)(v)(C) and Section 2(k)(ii)(C) on such Quarterly Payment Date,
the Administrator shall instruct the Indenture Trustee to withdraw
from the Reserve Account on such Quarterly Payment Date an amount
equal to such excess, to the extent of funds available therein after
giving effect to paragraphs (iv)(A) and (iv)(B) above, and to
distribute such amount as required by Section 2(d)(v)(C) on such
Quarterly Payment Date.
(f) Prefunding Account. (i) During the Funding Period, the
Administrator shall instruct the Indenture Trustee in writing to withdraw from
the Prefunding Account, in each case to the extent of the funds on deposit
therein (A) on each Transfer Date, an amount equal to the Loan Purchase Amount
for the Serial Loans transferred to the Eligible Lender Trustee on behalf of
the Issuer on such Transfer Date and to distribute such amount to or upon the
order of the Seller upon satisfaction of the conditions set forth in Section
2.02 of the Loan Sale Agreement with respect to such transfer, (B) when and as
requested by the Eligible Lender Trustee, in order to facilitate its
origination of Consolidation Loans, to transfer to the order of the Eligible
Lender Trustee an amount, sufficient to prepay in full any Student Loan that
is to be consolidated through such origination with one or more Financed
Student Loans, and (C) when and as requested by the Eligible Lender Trustee,
in order to facilitate its funding of the addition of the principal balance of
any Add-on Consolidation Loan to the principal balance of a Consolidation
Loan, an amount sufficient to prepay in full such Add-on Consolidation Loan.
(ii) On the Quarterly Payment Date on or next occurring after the
termination of the Funding Period, the Administrator shall instruct the
Indenture Trustee to withdraw from the Prefunding Account on such Quarterly
Payment Date an amount equal to the entire remaining amount on deposit in such
account and to distribute such amount pursuant to Section 8.02(e) of the
Indenture.
(iii) On the Closing Date, the Seller shall deposit the Prefunding
Account Closing Date Deposit into the Prefunding Account as required by
Section 2.01(b) of the Loan Sale Agreement.
13
(g) Statements to Noteholders. (i) On each Determination Date
preceding a Quarterly Payment Date, the Administrator shall provide to the
Indenture Trustee and any Swap Counterparties (with a copy to the Rating
Agencies) for the Indenture Trustee to forward on such succeeding Quarterly
Payment Date to each Noteholder of record a statement substantially in the
form of Exhibit B setting forth at least the following information as to the
Notes:
(A) the amount of such distribution allocable to principal
of the Notes, the amount thereof distributable as principal of the
Class A-1 Notes, the Class A-2 Notes and the Subordinate Notes, and
the amount thereof attributable to the Principal Distribution Amount
and the amount thereof attributable to Reserve Account Excess;
(B) the amount of the distribution allocable on such
Quarterly Payment Date to interest on the Class A-1 Notes;
(C) the amount of the distribution allocable on such
Quarterly Payment Date to interest on the Class A-2 Notes;
(D) the amount of the distribution allocable on such
Quarterly Payment Date to interest on the Subordinate Notes;
(E) the Pool Balance as of the close of business on the last
day of the preceding Collection Period, after giving effect to
payments allocated to principal reported under clause (A) above;
(F) the aggregate outstanding principal amount of the Class
A-1 Notes, the Class A-2 Notes, the Subordinate Notes, the Class A-1
Note Pool Factor, the Class A-2 Note Pool Factor and the Subordinate
Note Pool Factor as of such Quarterly Payment Date, after giving
effect to payments allocated to principal reported under clause (A)
above;
(G) the Note Rate applicable with respect to each
distribution referred to in clauses (B), (C) and (D) above;
(H) the amount of the Servicing Fee paid to the Servicer on
such Quarterly Payment Date and on each Monthly Payment Date
following the immediately preceding Quarterly Payment Date including
a breakdown of the components of the Servicing Fee attributable to
each of the items specified in Section 3.06 of the Servicing
Agreement and for each Monthly Payment Date following the immediately
preceding Quarterly Payment Date;
(I) the amount of the Administration Fee paid to the
Administrator on such Quarterly Payment Date;
(J) the Trust Swap Payment Amount paid to any Swap
Counterparties on such Quarterly Payment Date, the amount of any Net
Trust Swap Payment Carryover Shortfall for such Quarterly Payment
Date, the Trust Swap Receipt Amounts, if any paid to the
14
Trust on such Quarterly Payment Date and the amount of any Net Trust
Swap Receipt Carryover Shortfall for such Quarterly Payment Date;
(K) the amount of the aggregate Realized Losses, if any, for
such Collection Period and the balance of Financed Student Loans that
are delinquent in each delinquency period as of the end of such
Collection Period;
(L) the balance of the Reserve Account on such Quarterly
Payment Date, after giving effect to changes therein on such
Quarterly Payment Date and indicating whether on such Quarterly
Payment Date or any Monthly Payment Date since the preceding
Quarterly Payment Date any withdrawal was made therefrom pursuant to
Section 2(e)(iv), the amount of each such withdrawal and the
purpose(s) pursuant to Section 2(e)(iv) for each such withdrawal;
(M) For Quarterly Payment Dates during the Funding Period,
the amount on deposit in the Prefunding Account and indicating
whether on such Quarterly Payment Date or any Monthly Payment Date
since the preceding Quarterly Payment Date any withdrawal was made
therefrom pursuant to Section 2(k)(ii), the amount of each such
withdrawal and the purposes pursuant to Section 2(k)(ii) for each
such withdrawal;
(N) for Quarterly Payment Dates during the Funding Period,
the amount deposited into the Prefunding Account during the related
Collection Period and on the immediately preceding Quarterly Payment
Date, and the amount on deposit therein after giving effect to
changes therein on such Quarterly Payment Date;
(O) for the Quarterly Payment Date on or immediately
following the end of the Funding Period, the amount remaining on
deposit in the Prefunding Account that has not been used to make
Additional Fundings;
(P) (i) the principal balance and number of Consolidation
Loans originated on behalf of the Issuer during the related
Collection Period, (ii) the principal balance and number of Add-on
Consolidation Loans the principal balances of which have been added
to the Trust during the related Collection Period and (iii) the
amount withdrawn from the Prefunding Account to prepay Student Loans
not held by the Issuer that were consolidated through such
origination (or addition, in the case of Add-on Consolidation Loans)
with one or more Financed Student Loans during such Collection
Period;
(Q) the principal balance and number of Serial Loans
conveyed to the Issuer during the related Collection Period, the
aggregate Loan Purchase Amounts thereof; and
(R) the number and principal balance of Financed Student
Loans, as of the end of the related Collection Period, that are
In-School, Grace, Repayment, Deferral, Forbearance or Consolidation
Loans as of the end of the related Collection Period, and a breakdown
by number and principal balance of Financed Student Loans, by school
type, interest rate and loan program.
15
Each amount set forth pursuant to clauses (A), (B), (C) and (D) above shall be
expressed as a dollar amount per $1,000 of original principal amount of a
Note. A copy of the statements referred to above may be obtained by any Note
Owner by a written request to the Indenture Trustee addressed to the Corporate
Trust Office.
(h) Non-Ministerial Matters. With respect to matters that in the
reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable time before
the taking of such action, the Administrator shall have notified the Eligible
Lender Trustee and any Swap Counterparties of the proposed action and the
Eligible Lender Trustee shall have consented to it. For the purpose of the
preceding sentence, "non-ministerial matters" shall include, without
limitation:
(i) the amendment of or any supplement to the Indenture;
(ii) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought by or
against the Issuer (other than in connection with the collection of
the Financed Student Loans);
(iii) the amendment, change or modification of the Basic
Documents;
(iv) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators or Successor
Servicers, or the consent to the assignment by the Note Registrar,
Paying Agent or Indenture Trustee of its obligations under the
Indenture; and
(v) the removal of the Indenture Trustee.
(i) Incentive Loans and Incentive Interest Deposits. The
Administrator may terminate or change the terms of any Incentive Program with
respect to a Financed Student Loan in accordance with the terms of such
program, provided such termination or change is not prohibited by the Higher
Education Act, upon notice to the Eligible Lender Trustee and the Indenture
Trustee. Until the effective date of any termination, the Administrator shall
be required to deposit into the Collection Account the Incentive Interest
Deposit with respect to such Incentive Financed Student Loan as provided
below. In the event that the Administrator fails to make such deposit, the
terms of such Incentive Program shall be such that the Borrower shall be
obligated to make such payment and such Incentive Program shall terminate as
to the related loan.
The Administrator shall deposit or cause to be deposited into the
Collection Account no later than the Determination Date succeeding each
Monthly Collection Period and Collection Period the aggregate Incentive
Interest Deposits with respect to Incentive Financed Student Loans in the
Trust as of the last day of such Monthly Collection Period and Collection
Period. Such deposits shall be considered deposits in respect of interest on
such Incentive Financed Student Loans for all purposes of the Basic Documents
and shall be deemed to have been deposited into the Collection Account for all
such purposes as of such last date of such Monthly Collection Period.
16
(j) The Administrator may, from time to time, direct the Trust to
enter into Swap Agreements or amendments to Swap Agreements substantially in
the form of Exhibit C provided that (1) the Rating Agency Swap Condition is
satisfied with respect to such Swap Agreement and (2) after entering into such
Swap Agreement or amendment to such Swap Agreement, the notional amount of all
of Swap Agreements to which the Trust is a party is less than or equal to the
outstanding principal balance of the Notes.
Section 3. Annual Statement as to Compliance. (a) The Administrator
shall deliver to the Seller, the Eligible Lender Trustee, the Indenture
Trustee and any Swap Counterparties, on or before [o] of each year beginning
[o], an Officers' Certificate of the Administrator dated as of [o] of such
year, stating that (i) a review of the activities of the Administrator during
the preceding 12-month period (or, in the case of the first such certificate,
during the period from the Closing Date to [o]) and of its performance under
this Agreement has been made under such officers' supervision and (ii) to the
best of such officers' knowledge, based on such review, the Administrator has
fulfilled all its obligations under this Agreement throughout such year or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officers and the nature and status thereof.
The Indenture Trustee shall send a copy of each such Officer's Certificate and
each report referred to in Section 4 to the Rating Agencies. A copy of such
Officers' Certificate and each report referred to in Section 4 may be obtained
by any Noteholder or Note Owner by a request in writing to the Indenture
Trustee addressed to its Corporate Trust Office, together with evidence
satisfactory to the Indenture Trustee that such Person is one of the foregoing
parties.
(b) The Administrator shall deliver to the Eligible Lender Trustee,
the Indenture Trustee, the Servicer, the Rating Agencies and any Swap
Counterparties, promptly after having obtained knowledge thereof, but in no
event later than two Business Days thereafter, written notice in an Officers'
Certificate of the Administrator of any event which with the giving of notice
or lapse of time, or both, would become an Administrator Default under Section
12.
Section 4. Annual Independent Certified Public Accountants' Report.
The Administrator shall cause a firm of independent certified public
accountants, which may also render other services to the Administrator, to
deliver to the Seller, the Eligible Lender Trustee, the Indenture Trustee and
any Swap Counterparties on or before [o] of each year beginning [o], a report
addressed to the Administrator and to the Seller, the Eligible Lender Trustee,
the Indenture Trustee and any Swap Counterparties (which report may be
combined with other reports required to be delivered by such accountants to
the Administrator, the Eligible Lender Trustee and the Indenture Trustee under
the Basic Documents), to the effect that such firm has examined certain
documents and records relating to the administration of the Financed Student
Loans and of the Trust during the preceding fiscal year ended [o] (or, in the
case of the first such report, during the period from the Closing Date to [o])
and that, on the basis of the accounting and auditing procedures considered
appropriate under the circumstances, such firm is of the opinion that the
administration of the Trust was conducted in compliance with the terms of this
Agreement, except for (i) such exceptions as such firm shall believe to be
immaterial and (ii) such other exceptions as shall be set forth in such
report. The Indenture Trustee shall send a copy of each such report to the
Rating Agencies.
17
Such report will also indicate that the firm is independent of the
Administrator within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
Section 5. Administrator Expenses. The Administrator shall be
required to pay all expenses incurred by it in connection with its activities
hereunder, including fees and disbursements of independent accountants, taxes
imposed on the Administrator and expenses incurred in connection with
distributions and reports to the Noteholders and any Swap Counterparties.
Section 6. Records. The Administrator shall maintain appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Issuer
at any time during normal business hours.
Section 7. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to the
Administration Fee payable monthly in arrears on each Monthly Payment Date
which shall be solely an obligation of the Issuer and payable solely as
provided herein.
Section 8. Additional Information to Be Furnished. The Administrator
shall furnish to the Issuer and any Swap Counterparties from time to time such
additional information regarding the Collateral as the Issuer or any Swap
Counterparties shall reasonably request. Following the time, if any, that any
Swap Counterparties' counterparty ratings fall below "A3" , "A-"or their
equivalent, upon request of a Rating Agency, the Administrator shall furnish
to such Rating Agency, cashflow projections for the Trust.
Section 9. Independence of the Administrator. For all purposes of
this Agreement, the Administrator shall be an independent contractor and shall
not be subject to the supervision of the Issuer or the Eligible Lender Trustee
with respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or
the Eligible Lender Trustee in any way and shall not otherwise be deemed an
agent of the Issuer or the Eligible Lender Trustee.
Section 10. No Joint Venture. Nothing contained in this Agreement (i)
shall constitute the Administrator and either the Issuer or the Eligible
Lender Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) shall be
construed to impose any liability as such on any of them or (iii) shall be
deemed to confer on any of them any express, implied or apparent authority to
incur any obligation or liability on behalf of the others.
Section 11. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other Person even though such Person may engage in
business activities similar to those of the Issuer, the Eligible Lender
Trustee or the Indenture Trustee.
18
Section 12. Administrator Default. If any one of the following events
(an "Administrator Default") shall occur and be continuing:
(a) any failure by the Administrator to direct the Indenture
Trustee to make any required distributions from any of the Trust
Accounts, which failure continues unremedied for three Business Days
after written notice of such failure is received by the Administrator
from the Indenture Trustee or the Eligible Lender Trustee or after
discovery of such failure by an officer of the Administrator; or
(b) any failure by the Administrator duly to observe or to
perform in any material respect any other covenants or agreements of
the Administrator set forth in this Agreement or any Basic Documents,
which failure shall (i) materially and adversely affect the rights of
Noteholders and (ii) continues unremedied for a period of 30 days
after the date of discovery of such failure by an officer of the
Administrator or on which written notice of such failure, requiring
the same to be remedied, shall have been given (A) to the
Administrator by the Indenture Trustee or the Eligible Lender Trustee
or (B) to the Administrator and to the Indenture Trustee and the
Eligible Lender Trustee by the Noteholders, representing not less
than 25% of the Outstanding Amount of the Notes; or
(c) an Insolvency Event occurs with respect to the
Administrator; or
(d) any representation or warranty made by the Administrator
hereunder or under any Basic Document, or in any certificate
furnished hereunder or under any Basic Document, shall prove to be
untrue or incomplete in any material respect;
then, and in each and every case, so long as the Administrator Default shall
not have been remedied, either the Indenture Trustee, or the Noteholders
evidencing not less than 75% of the Outstanding Amount of the Notes, by notice
then given in writing to the Administrator (and to the Indenture Trustee, the
Eligible Lender Trustee and the Swap Counterparty if given by the
Noteholders), may terminate all the rights and obligations (other than the
obligations set forth in Section 24 hereof) of the Administrator under this
Agreement. On or after the receipt by the Administrator of such written
notice, all authority and power of the Administrator under this Agreement,
whether with respect to the Notes or the Financed Student Loans or otherwise,
shall, without further action, pass to and be vested in the Indenture Trustee
or such successor Administrator as may be appointed under Section 13; and,
without limitation, the Indenture Trustee and the Eligible Lender Trustee are
hereby authorized and empowered to execute and deliver, for the benefit of the
predecessor Administrator, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination. The predecessor Administrator shall cooperate with the successor
Administrator, the Indenture Trustee and the Eligible Lender Trustee in
effecting the termination of the responsibilities and rights of the
predecessor Administrator under this Agreement. All reasonable costs and
expenses (including attorneys' fees and expenses) incurred in connection with
such transfer of responsibilities and amending this Agreement to reflect such
succession as Administrator pursuant to this Section shall be paid by the
predecessor Administrator upon presentation of reasonable documentation of
such costs
19
and expenses. Upon receipt of notice of the occurrence of an Administrator
Default, the Eligible Lender Trustee shall give notice thereof to the Rating
Agencies and any Swap Counterparties.
Section 13. Appointment of Successor. (a) Upon receipt by the
Administrator of notice of termination pursuant to Section 12, or the
resignation by the Administrator in accordance with the terms of this
Agreement, the predecessor Administrator shall continue to perform its
functions as Administrator, in the case of termination, only until the date
specified in such termination notice or, if no such date is specified in a
notice of termination, until a successor Administrator has accepted and
assumed the responsibilities of the Administrator and, in the case of
resignation, until the later of (x) the date 120 days from the delivery to the
Eligible Lender Trustee and the Indenture Trustee of written notice of such
resignation (or written confirmation of such notice) in accordance with the
terms of this Agreement and (y) the date upon which the predecessor
Administrator shall become legally unable to act as Administrator as specified
in the notice of resignation and accompanying Opinion of Counsel. In the event
of termination hereunder of the Administrator, the Issuer shall appoint a
successor Administrator acceptable to the Indenture Trustee and the successor
Administrator shall accept its appointment by a written assumption in form
acceptable to the Indenture Trustee. In the event that a successor
Administrator has not been appointed at the time when the predecessor
Administrator has ceased to act as Administrator in accordance with this
Section, the Indenture Trustee without further action shall automatically be
appointed the successor Administrator and the Indenture Trustee shall be
entitled to the Administration Fee. Notwithstanding the above, the Indenture
Trustee (with prior written notice to any Swap Counterparties ) shall, if it
shall be unwilling or legally unable so to act, appoint or petition a court of
competent jurisdiction to appoint, as the successor to the Administrator under
this Agreement and the Administration Agreement, any established institution
the regular business of which shall include the servicing of student loans.
(b) Upon appointment, the successor Administrator (including the
Indenture Trustee acting as successor Administrator) shall be the successor in
all respects to the predecessor Administrator and shall be subject to all the
responsibilities, duties and liabilities placed on the predecessor
Administrator that arise thereafter or are related thereto and shall be
entitled to an amount agreed to by such successor Administrator (which shall
not exceed the Administration Fee unless the Swap Counterparties, if any, give
their prior written consent and such compensation arrangements will not result
in a downgrading of the Class A-1 Notes, the Class A-2 Notes or the
Subordinate Notes by any Rating Agency), and all the rights granted to the
predecessor Administrator by the terms and provisions of this Agreement.
(c) The Administrator may not resign unless it is prohibited from
serving as such by law as evidenced by an Opinion of Counsel to such effect
delivered to the Indenture Trustee and the Eligible Lender Trustee.
Notwithstanding the foregoing or anything to the contrary herein or in the
Basic Documents, the Indenture Trustee, to the extent it is acting as
successor Administrator pursuant hereto, shall be entitled to resign to the
extent a qualified successor Administrator has been appointed and has assumed
all the obligations of the Administrator in accordance with the terms of this
Agreement and the Basic Documents.
Section 14. Notification to Noteholders. Upon any termination of, or
appointment of a successor to, the Administrator pursuant to Section 12 or 13,
the Indenture Trustee shall give
20
prompt written notice thereof to Noteholders, any Swap Counterparties and the
Rating Agencies (which, in the case of any such appointment of a successor,
shall consist of prior written notice thereof to the Rating Agencies).
Section 15. Waiver of Past Defaults. The Noteholders of Notes
evidencing not less than a majority of the Outstanding Amount of the Notes
may, on behalf of all Noteholders, waive in writing any default by the
Administrator in the performance of its obligations hereunder and any
consequences thereof, except a default in making any required deposits to or
payments from any of the Trust Accounts (or giving instructions regarding the
same) in accordance with this Agreement. Upon any such waiver of a past
default, such default shall cease to exist, and any Administrator Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement to the extent provided in such waiver. No such waiver shall
extend to any subsequent or other default or impair any right consequent
thereto.
Section 16. Notices. Any notice, report or other communication given
hereunder shall be in writing (or in the form of facsimile notice, followed by
written notice) and addressed as follows:
(a) if to the Issuer, to
Xxxxx Fargo Student Loan Trust 2001-1
c/o [o]
with a copy to the Eligible Lender Trustee
at the Corporate Trust Office of the
Eligible Lender Trustee
(b) if to the Eligible Lender Trustee, to
Bank One, National Association
[o]
Attention:
Telephone:
Facsimile:
(c) if to the Administrator, to
Xxxxx Fargo Bank Minnesota, National Association
[o]
Attention:
Telephone:
Telecopy:
21
with a copy to
[o]
Attention:
Telephone:
Telecopy:
(d) if to the Indenture Trustee, to
Chase Manhattan Bank
[o]
Attention: Corporate Trust and Agency Group,
Structured Finance Team
Telephone:
Facsimile:
(e) if to any Swap Counterparties, to the address specified in any
Swap Agreements
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed
given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above.
Section 17. Amendments. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the Issuer, the
Administrator and the Indenture Trustee, with the prior written consent of the
Eligible Lender Trustee and any Swap Counterparties, but without the consent
of the Noteholders, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders; provided, however, that
such amendment will not, in an Opinion of Counsel obtained on behalf of the
Issuer and satisfactory to the Indenture Trustee and the Eligible Lender
Trustee, materially and adversely affect the interest of any Noteholder. This
Agreement may also be amended by the Issuer, the Administrator and the
Indenture Trustee with the prior written consent of the Eligible Lender
Trustee, any Swap Counterparties and the Noteholders of at least a majority in
the Outstanding Amount of the Notes for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of Noteholders; provided,
however, that no such amendment may (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments with
respect to the Financed Student Loans or distributions that are required to be
made for the benefit of the Noteholders or (ii) reduce the aforesaid
percentage of the Noteholders which are required to consent to any such
amendment, without the consent of all Outstanding Noteholders. Prior to the
execution of any such amendment, the Administrator shall furnish written
notification of the substance of such amendment to each of the Rating
Agencies.
Section 18. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 13, 25 or 27 of this Agreement
concerning the resignation of the Administrator, this Agreement may not be
assigned by the Administrator.
22
Section 19. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
Section 20. Headings. The section headings hereof have been inserted
for convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
Section 21. Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall together constitute but one
and the same agreement.
Section 22. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
Section 23. Not Applicable to Xxxxx Fargo Bank Minnesota, National
Association in Other Capacities. Nothing in this Agreement shall affect any
obligation Xxxxx Fargo Bank Minnesota, National Association may have in any
other capacity under the Basic Documents.
Section 24. Liability of Administrator; Indemnities. The
Administrator shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Administrator under this Agreement.
The Administrator shall indemnify, defend and hold harmless the
Issuer, the Eligible Lender Trustee, the Indenture Trustee, the Servicer, any
Swap Counterparties and the Noteholders and any of the officers, directors,
employees and agents of the Issuer, the Eligible Lender Trustee, the Indenture
Trustee and the Servicer from and against any and all costs, expenses, losses,
claims, damages and liabilities to the extent that such cost, expense, loss,
claim, damage or liability arose out of, or was imposed upon any such Person
through, the negligence, willful misfeasance or bad faith of the Administrator
in the performance of its duties under this Agreement or by reason of reckless
disregard of its obligations and duties hereunder or thereunder.
The Administrator shall pay reasonable compensation to the Indenture
Trustee and shall reimburse the Indenture Trustee for all reasonable expenses,
disbursements and advances, and indemnify, defend and hold harmless the
Indenture Trustee and its officers, directors, employees and agents from and
against all costs, expenses, losses, claims, damages and liabilities, to the
extent and in the manner provided in, and subject to the limitations of,
Section 6.07 of the Indenture.
For purposes of this Section, in the event of the termination of the
rights and obligations of the Administrator (or any successor thereto pursuant
to Section 25) as Administrator pursuant to Section 12 or a resignation by
such Administrator pursuant to this
23
Agreement, such Administrator shall be deemed to be the Administrator pending
appointment of a successor Administrator pursuant to Section 13.
Indemnification under this Section shall survive the resignation or
removal of the Eligible Lender Trustee or the Indenture Trustee or the
termination of this Agreement and shall include reasonable fees and expenses
of counsel and expenses of litigation. If the Administrator shall have made
any indemnity payments pursuant to this Agreement and the Person to or on
behalf of whom such payments are made thereafter collects any of such amounts
from others, such Person shall promptly repay such amounts to the
Administrator, without interest.
Section 25. Merger or Consolidation of, or Assumption of the
Obligations of, Administrator. Any Person (a) into which the Administrator may
be merged or consolidated, (b) which may result from any merger or
consolidation to which the Administrator shall be a party or (c) which may
succeed to the properties and assets of the Administrator substantially as a
whole, shall be the successor to the Administrator without the execution or
filing of any document or any further act by any of the parties to this
Agreement; provided, however, that the Administrator hereby covenants that it
will not consummate any of the foregoing transactions except upon satisfaction
of the following: (i) the surviving Administrator, if other than Xxxxx Fargo
Bank Minnesota, National Association, executes an agreement of assumption to
perform every obligation of the Administrator under this Agreement, (ii)
immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 1 shall have been breached and no
Administrator Default, and no event that, after notice or lapse of time or
both would become an Administrator Default, shall have occurred and be
continuing and (iii) the Administrator shall have delivered to the Eligible
Lender Trustee, the Indenture Trustee and any Swap Counterparties an Officers'
Certificate or an Opinion of Counsel stating that such consolidation, merger
or succession and such agreement of assumption comply with this Section and
that all conditions precedent, if any, provided for in this Agreement relating
to such transaction have been complied with, and that the Rating Agency
Condition shall have been satisfied with respect to such transaction.
Section 26. Limitation on Liability of Administrator and Others.
Neither the Administrator nor any of its directors, officers, employees or
agents shall be under any liability to the Issuer, the Noteholders, the
Indenture Trustee, the Eligible Lender Trustee or any Swap Counterparties,
except as provided under this Agreement, for any action taken or for
refraining from the taking of any action pursuant to this Agreement or for
errors in judgment; provided, however, that this provision shall not protect
the Administrator or any such person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of its duties or by reason of reckless disregard of
obligations and its duties under this Agreement. The Administrator and any of
its directors, officers, employees or agents may rely in good faith on the
advice of counsel or on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising hereunder.
Except as provided in this Agreement, the Administrator shall not be
under any obligation to appear in, prosecute or defend any legal action that
shall not be incidental to its duties to administer the Financed Student Loans
and the Trust in accordance with this Agreement, and that in its opinion may
involve it in any expense or liability; provided, however,
24
that the Administrator may undertake any reasonable action that it may deem
necessary or desirable in respect of this Agreement and the other Basic
Documents and the rights and duties of the parties to this Agreement and the
Basic Documents and the interests of the Noteholders under the Indenture.
Section 27. Xxxxx Fargo Bank Minnesota, National Association Not to
Resign as Administrator. Subject to the provisions of Section 25, Xxxxx Fargo
Bank Minnesota, National Association shall not resign from the obligations and
duties imposed on it as Administrator under this Agreement except upon
determination that the performance of its duties under this Agreement shall no
longer be permissible under applicable law or shall violate any final order of
a court or administrative agency with jurisdiction over Xxxxx Fargo Bank
Minnesota, National Association or its properties. Notice of any such
determination permitting the resignation of Xxxxx Fargo Bank Minnesota,
National Association shall be communicated to the Eligible Lender Trustee, the
Indenture Trustee and any Swap Counterparties at the earliest practicable time
(and, if such communication is not in writing, shall be confirmed in writing
at the earliest practicable time) and any such determination shall be
evidenced by an Opinion of Counsel to such effect delivered to the Eligible
Lender Trustee, the Indenture Trustee and any Swap Counterparties concurrently
with or promptly after such notice. No such resignation shall become effective
until the Indenture Trustee or a successor Administrator shall have assumed
the responsibilities and obligations of Xxxxx Fargo Bank Minnesota, National
Association in accordance with Section 13.
Section 28. Limitation of Liability of Eligible Lender Trustee and
Indenture Trustee. (a) Notwithstanding anything contained herein to the
contrary, except as provided in subsection (c) hereof, this instrument has
been countersigned by Bank One not in its individual capacity but solely in
its capacity as Eligible Lender Trustee of the Issuer and in no event shall
Bank One in its individual capacity or any Owner of the Issuer have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder, as to all of which recourse shall be had
solely to the assets of the Issuer. For all purposes of this Agreement, in the
performance of any duties or obligations of the Issuer thereunder, the
Eligible Lender Trustee shall be subject to, and entitled to the benefits of,
the terms and provisions of Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, except
as provided in subsection (c) hereof, this Agreement has been countersigned by
Chase Manhattan Bank not in its individual capacity but solely as Indenture
Trustee and in no event shall Chase Manhattan Bank have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely to
the assets of the Issuer.
(c) Notwithstanding any other provision in this Agreement or the
other Basic Documents, nothing in this Agreement or the other Basic Documents
shall be construed to limit the legal responsibility of the Eligible Lender
Trustee or the Indenture Trustee, to the U.S. Secretary of Education or a
Guarantor for any violations of statutory or regulatory requirements that may
occur with respect to loans held by the Eligible Lender Trustee or the
Indenture Trustee
25
pursuant to, or to otherwise comply with their obligations under, the Higher
Education Act or implementing regulations.
Section 29. Notice of Termination of Trust. As described in Article
IX of the Trust Agreement, notice of any termination of the Trust shall be
given by the Administrator to the Eligible Lender Trustee and the Indenture
Trustee as soon as practicable after the Administrator has received notice
thereof.
Section 30. Third-Party Beneficiaries. The Eligible Lender Trustee
and any Swap Counterparties are third-party beneficiaries to this Agreement
and are entitled to the rights and benefits hereunder and may enforce the
provisions hereof as if they were parties hereto; provided, however, that in
the case of any Swap Counterparties, such right to enforcement and the right
to provide consents or waivers pursuant to the provisions hereof or to take
other actions as provided herein are conditioned upon its not being in default
under any Swap Agreements.
Section 31. Consents. With respect to any action to be taken
hereunder that requires the consent of a party hereto or of the Eligible
Lender Trustee or any Swap Counterparties, such consent shall not be
unreasonably withheld, delayed or conditioned.
[Signatures Follow on Next Page]
26
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
XXXXX FARGO STUDENT LOAN TRUST 2001-1
By: BANK ONE, NATIONAL ASSOCIATION, not in its individual
capacity but solely as Eligible Lender Trustee
By:
-------------------------------------------------
Name:
Title:
CHASE MANHATTAN BANK, not in its individual capacity but
solely as Indenture Trustee
By:
-------------------------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as
Administrator
By:
-------------------------------------------------
Name:
Title:
27
EXHIBIT A TO THE
ADMINISTRATION AGREEMENT
POWER OF ATTORNEY
STATE OF NEW YOR )
) ss.:
COUNTY OF NEW YORK)
KNOW ALL MEN BY THESE PRESENTS, BANK ONE, NATIONAL ASSOCIATION, a
national bank, not in its individual capacity but solely as eligible lender
trustee ("Eligible Lender Trustee") for the Xxxxx Fargo Student Loan Trust
2001-1 (the "Trust"), does hereby make, constitute and appoint Xxxxx Fargo
Bank Minnesota, National Association, as Administrator under the
Administration Agreement (as defined below), and its agents and attorneys, as
Agents and Attorneys-in-Fact to execute on behalf of Eligible Lender Trustee
or the Trust all such documents, reports, filings, instruments, certificates
and opinions as it should be the duty of Eligible Lender Trustee or the Trust
to prepare, file or deliver pursuant to the Related Documents (as defined in
the Administration Agreement) or pursuant to Section 5.02 of the Trust
Agreement (as defined in the Administration Agreement), including without
limitation, to appear for and represent Eligible Lender Trustee and the Trust
in connection with the preparation, filing and audit of any federal, state and
local tax returns pertaining to the Trust, and with full power to perform any
and all acts associated with such returns and audits that the Eligible Lender
Trustee could perform, including without limitation, the right to distribute
and receive confidential information, defend and assert positions in response
to audits, initiate and defend litigation, and to execute waivers of
restriction on assessments of deficiencies, consents to the extension of any
statutory or regulatory time limit, and settlements. For the purpose of this
Power of Attorney, the term "Administration Agreement" means the
Administration Agreement dated as of November [o], 2001, among the Trust,
Xxxxx Fargo Bank Minnesota, National Association, as Administrator, and Chase
Manhattan Bank, as Indenture Trustee, as such may be amended from time to
time.
All powers of attorney for this purpose heretofore filed or executed
by Eligible Lender Trustee are hereby revoked.
EXECUTED as of the [o] day of November.
BANK ONE, NATIONAL ASSOCIATION, not in
its individual capacity but
solely as Eligible Lender Trustee
By:
-----------------------------------
Name:
Title:
X-0
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK)
Before me, the undersigned authority, on this day personally appeared
[ ] known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that such person signed the same for the
purposes and considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this [o] day of [o].
______________________________________________
Notary Public in and for the State of New York
______________________________________________
Printed Name of Notary Public
Commission Expires____________
A-2
EXHIBIT B
TO THE
ADMINISTRATION AGREEMENT
Form of Noteholders' Statement pursuant to Section 2(g) of Administration
Agreement. Capitalized terms used herein are defined in Appendix A thereto. It
should be noted, however, that while all the information listed below shall be
included in each Noteholders' Statement, the presentation thereof may vary
from that given below.
Quarterly Payment Date:
(i) Amount of principal being paid or distributed:
Class A-1 __________* ($_______ *
per $1,000 original
principal amount of
Notes)
Class A-2 __________* ($_______ *
per $1,000 original
principal amount of
Notes)
Subordinate __________* ($_______ *
per $1,000 original
principal amount of
Notes)
----------
* Portion of each such amount attributable to Reserve Account
Excess:___________________
(ii) Amount of interest being paid or distributed:
Class A-1 __________ ($_______
per $1,000 original
principal amount of
Notes)
Class A-2 __________ ($_______
per $1,000 original
principal amount of
Notes)
B-1
Subordinate __________ ($_______
per $1,000 original
principal amount of
Notes)
(iii) Reserved
(iv) Reserved
(v) Pool Balance at end of related Collection Period:
____________________
(vi) After giving effect to distributions on this Quarterly
Payment Date:
(a) (1) outstanding principal amount of Class
A-1 Notes:_______
(2) Class A-1 Note Pool Factor:__________
(b) (1) outstanding principal amount of Class
A-2 Notes:_______
(2) Class A-2 Note Pool Factor:__________
(c) (1) outstanding principal amount of Subordinate
Notes:__________
(2) Subordinate Note Pool Factor:__________
(vii) Applicable Interest Rate:
In general:
(1) Three-Month LIBOR for the LIBOR Reset Period
since the previous Quarterly Payment Date was _____%;
Class A-1 Note Rate: _____%
Class A-2 Note Rate: _____%
Subordinate Note Rate: _____%
(viii) Amount of Servicing Fee for related Collection Period
including a breakdown of the components of the Servicing Fee
attributable to each of the items specified in Section 3.06
of the Servicing Agreement:
(ix) Amount of Administration Fee for related Collection
Period:__________ ($_______ per $1,000 original principal
amount of Notes)
(x) the Trust Swap Payment Amount paid to each Swap
Counterparty, if any on such Quarterly Payment Date: ______;
the amount of any Net Trust Swap Payment Carryover Shortfall
with respect to each Swap Agreement, if any for such
Quarterly Payment Date: ____; the Trust Swap Receipt Amount
with respect to
B-2
each Swap Agreement, if any paid to the Trust on such
Quarterly Payment Date: ____; the Net Trust Swap Receipt
Carryover Shortfall with respect to each Swap Agreement, if
any for such Quarterly Payment Date:______
(xi) Reserved
(xii) Aggregate amount of Realized Losses (if any) for the related
Collection Period:__________
(xiii) Financed Student Loans delinquent at end of related
Collection Period: __________; number of delinquent loans:
________; aggregate unpaid principal balance of delinquent
loans:_________________
(xiv) Withdrawal from Reserve Account on related Quarterly Payment
Date (other than Reserve Account Excess) and on any Monthly
Payment Date since the preceding Quarterly Payment Date
(list each withdrawal separately): _______________ (purpose
of each withdrawal).
Reserve Account Excess on related Quarterly Payment Date
________
Principal balance of Notes to be paid to reach Parity
Date:_________
(xv) Reserved
(xvi) Deposits to Prefunding Account during related Collection
Period: __________; amount to be deposited on related
Quarterly Payment Date: __________
Withdrawal from Prefunding Account during related Collection
Period: __________
(xvii) Amount in the Reserve Account (after giving effect to
(xiv)):__________
(xviii) Amount in the Prefunding Account (after giving effect to
(xvi)):__________
(xix) Consolidation Loans: ___________ loans with aggregate
principal balances of ________ were originated during
related Collection Period; withdrawal from Prefunding
Account to fund origination of Consolidation Loans during
related Collection Period: _______
(xx) Add-on Consolidation Loans: ______ loans with aggregate
principal balances of ________ were added to the principal
balance of a Consolidation Loan; withdrawal from Prefunding
Account to fund the addition of the principal balances of
Add-on Consolidation Loans during the related Collection
Period: _____
(xxi) Serial Loans: _______ loans with aggregate principal
balances of _______ were purchased ------- during the
related Collection Period.
B-3
(xxiii) Withdrawal from the Prefunding Account during the related
Collection Period (list each withdrawal pursuant to Section
2(k)(ii) separately): ____________. (purpose of each
withdrawal)
(xxiv) Amount in the Prefunding Account (after giving effect
(xxiii)).
(xxv) Financed Student Loans in the following categories as of the
end of the related Collection Period:
Weighted Average Number
Interest Rate of Loans Principal Balance
Status Type:
-----------
In-School
Grace
Repayment
Forbearance
Deferment
Delinquencies
Claims Filed Awaiting Payment
Delinquencies:
-------------
30-60 Days
61-90 Days
91-120 Days
More than 120 Days Delinquent
Claims Filed Awaiting Payment
Loan Type:
---------
Xxxxxxxx Loans
SLS Loans
PLUS Loans
Consolidation Loans
B-4
School Type:
-----------
Traditional
Vocational/Proprietary
B-5
EXHIBIT C
TO THE
ADMINISTRATION AGREEMENT
[To Come]
Sidley Xxxxxx Xxxxx & Xxxx LLP
Draft of 11/06/01
APPENDIX A TO THE
ADMINISTRATION AGREEMENT
DEFINITIONS AND USAGE
Usage
The following rules of construction and usage shall be applicable to
any instrument that is governed by this Appendix:
(a) All terms defined in this Appendix shall have the defined
meanings when used in any instrument governed hereby and in any certificate or
other document made or delivered pursuant thereto unless otherwise defined
therein.
(b) As used herein, in any instrument governed hereby and in any
certificate or other document made or delivered pursuant thereto, accounting
terms not defined in this Appendix or in any such instrument, certificate or
other document, and accounting terms partly defined in this Appendix or in any
such instrument, certificate or other document to the extent not defined,
shall have the respective meanings given to them under generally accepted
accounting principles as in effect on the date of such instrument. To the
extent that the definitions of accounting terms in this Appendix or in any
such instrument, certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting principles, the
definitions contained in this Appendix or in any such instrument, certificate
or other document shall control.
(c) The words "hereof", "herein", "hereunder" and words of similar
import when used in an instrument refer to such instrument as a whole and not
to any particular provision or subdivision thereof; references in an
instrument to "Article", "Section" or another subdivision or to an attachment
are, unless the context otherwise requires, to an article, section or
subdivision of or an attachment to such instrument; and the term "including"
means "including without limitation".
(d) The definitions contained in this Appendix are equally
applicable to both the singular and plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to
below or in any agreement or instrument that is governed by this Appendix
means such agreement or instrument or statute as from time to time amended,
modified or supplemented, including (in the case of agreements or instruments)
by waiver or consent and (in the case of statutes) by succession of comparable
successor statutes and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein.
References to a Person are also to its permitted successors and assigns.
Definitions
"Act" has the meaning specified in Section 11.03(a) of the Indenture.
"Additional Fundings" means any withdrawals from the Prefunding
Account for any of the purposes set forth in Section 2(f) of the
Administration Agreement.
"Additional Guarantor" means a Federal Guarantor (other than an
Initial Guarantor) of a Financed Student Loan (other than an Initial Financed
Student Loan) which has entered into a guarantee agreement with the Eligible
Lender Trustee.
"Add-on Consolidation Loan" means a Student Loan, the principal
balance of which is added to an existing Consolidation Loan within 210 days
from the date that the existing Consolidation Loan was made, as required by
the Higher Education Act.
"Add-on Consolidation Loan Funding Date" means each day, prior to the
end of the Add-on Period, on which the principal balance of an Add-on
Consolidation Loan is added to the principal balance of a Consolidation Loan
in the Trust pursuant to Section 6.07 of the Trust Agreement.
"Add-on Period" means the period starting on the Closing Date and
ending on the date that is 210 days from the date that the last Consolidation
Loan was originated by the Trust during the Funding Period.
"Administration Agreement" means the Administration Agreement dated
as of November [o], 2001, among the Issuer, the Administrator and the
Indenture Trustee.
"Administration Fee" means, with respect to each Monthly Payment
Date, an amount equal to one-twelfth of the product of (i) 0.0_% and (ii) the
Pool Balance plus the amount on deposit in the Prefunding Account as of the
close of business on the last day of the calendar month immediately preceding
such Monthly Payment Date.
"Administrator" means Xxxxx Fargo Bank Minnesota, National
Association, a national banking association, in its capacity as administrator
of the Issuer and the Financed Student Loans.
"Administrator Default" shall have the meaning set forth in Section
12 of the Administration Agreement.
"Administrator's Certificate" means an Officers' Certificate of the
Administrator delivered pursuant to Section 2(b)(ii) of the Administration
Agreement.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether
-2-
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Assignment" means a duly executed assignment delivered pursuant to
Section 3.02 of the Loan Sale Agreement in the form set forth in Exhibit F to
such Agreement.
"Authorized Officer" means (i) with respect to the Issuer, any
officer of the Eligible Lender Trustee who is authorized to act for the
Eligible Lender Trustee in matters relating to the Issuer pursuant to the
Basic Documents and who is identified on the list of Authorized Officers
delivered by the Eligible Lender Trustee to the Indenture Trustee on the
Closing Date (as such list may be modified or supplemented from time to time
thereafter) and (ii) with respect to the Depositor, the Seller, the Servicer
and the Administrator, any officer or other authorized representative of the
Seller, the Servicer or the Administrator, respectively, who is authorized to
act for the Depositor, the Seller, the Servicer or the Administrator,
respectively, in matters relating to itself or to the Issuer and to be acted
upon by the Depositor, the Seller, the Servicer or the Administrator,
respectively, pursuant to the Basic Documents and who is identified on the
list of Authorized Officers delivered by the Depositor, the Seller, the
Servicer and the Administrator, respectively, to the Indenture Trustee on the
Closing Date (as such list may be modified or supplemented from time to time
thereafter).
"Available Funds" means, with respect to a Quarterly Payment Date and
the related Collection Period, the sum of (1) the amounts specified in clauses
(i) through (vi) of the definition of Monthly Available Funds for each of the
three Monthly Collection Periods included in such Collection Period, (2) any
Trust Swap Receipt Amount and the remainder of any Termination Payment
received by the Trust with respect to such Quarterly Payment Date and (3) at
the end of the Funding Period the amount deposited from the Prefunding Account
to the Collection Account pursuant to Section 2(f)(iii) of the Administration
Agreement; provided, however, that if with respect to any Quarterly Payment
Date there would not be sufficient funds, after application of the Available
Funds (as defined above) and amounts available first from the Prefunding
Account and second from the Reserve Account, to pay any of the items specified
in clauses (v)(A) through (v)(C) of Section 2(d) of the Administration
Agreement, then the Available Funds for such Quarterly Payment Date will
include, in addition to the Available Funds (as defined above), amounts on
deposit in the Collection Account on the Determination Date relating to such
Quarterly Payment Date which would have constituted the Available Funds for
the Quarterly Payment Date succeeding such Quarterly Payment Date up to the
amount necessary to pay such items, and the Available Funds for such
succeeding Quarterly Payment Date will be adjusted accordingly; and provided,
further, that the Available Funds will exclude (A) all payments and proceeds
(including Liquidation Proceeds) of any Financed Student Loans the Purchase
Amounts of which were included in the Available Funds for a prior Collection
Period; (B) amounts released from the Prefunding Account; (C) any Monthly
Rebate Fees paid during the related Collection Period by or on behalf of the
Trust; (D) any collections in respect of any principal on the Financed Student
Loans applied by the Eligible Lender Trustee on behalf of the Trust, after the
end of the Funding Period, to fund the addition of any Add-on Consolidation
Loans, to purchase Serial Loans during the related Collection Period; and (E)
the Servicing Fee, all overdue Servicing Fees, the Administration Fee and all
overdue Administration Fees paid on
-3-
each Monthly Payment Date that is not a Quarterly Payment Date during the
related Collection Period.
"Basic Documents" means the Trust Agreement, the Indenture, the Loan
Sale Agreement, the Servicing Agreement, the Administration Agreement, the
Depository Agreement, the Guarantee Agreements, any Swap Agreement and other
documents and certificates delivered in connection with any thereof.
"Billing Account" means those combined loans of a Borrower with the
same lender and branch, which loans are in the same status, and are the same
loan type, and are guaranteed by the same Guarantor and which require the same
processing and billing requirements. Xxxxxxxx Loans which are already in
repayment and being serviced by the Servicer will not be merged with new
Xxxxxxxx Loans for the same Borrower, and each such Xxxxxxxx Loan will be
treated as a separate Billing Account.
"Book-Entry Note" means a beneficial interest in the Senior Notes and
the Subordinate Notes, ownership and transfers of which shall be made through
book entries by a Clearing Agency as described in Section 2.10 of the
Indenture.
"Borrower" means an individual who is the maker of a Borrower Note
and who obtains a Student Loan from an "eligible lender" in accordance with
the Higher Education Act and the policies and procedures of a Guarantor.
"Borrower Note" means a promissory note of a Borrower for a Student
Loan set forth on the appropriate form furnished by the Guarantor which
Borrower Note meets the criteria set forth by the Higher Education Act and the
policies and procedures of the Guarantor.
"Business Day" means any day other than (i) a Saturday or a Sunday,
or (ii) a day on which banking institutions or trust companies in the States
of New York, Minnesota or in the city in which the Corporate Trust Office of
the Indenture Trustee is located are authorized or obligated by law,
regulation or executive order to remain closed.
"Business Trust Statute" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss. 3801 et seq., as the same may be amended from
time to time.
"Capitalized Interest Amount" means for any Monthly Collection Period
or other period of determination, the amount of interest that accrued on the
Financed Student Loans during such period but was not then payable and that
has been or will, pursuant to the terms of such Financed Student Loans, be
capitalized and added to the principal balances of such loans.
"Certificate of Trust" means the Certificate of Trust in the form of
Exhibit A to the Trust Agreement to be filed for the Trust pursuant to Section
3810(a) of the Business Trust Statute.
"Class A-1 Note" means a Class A-1 Floating Rate Asset- Backed Senior
Note issued pursuant to the Indenture, substantially in the form of Exhibit
A-1 thereto.
-4-
"Class A-1 Note Final Maturity Date" means the [o] Quarterly Payment
Date.
"Class A-1 Note Pool Factor" as of the close of business on a
Quarterly Payment Date means a seven-digit decimal figure equal to the
outstanding principal amount of the Class A-1 Notes divided by the original
outstanding principal amount of the Class A-1 Notes. The Class A-1 Note Pool
Factor will be 1.0000000 as of the Closing Date; thereafter, the Class A-1
Note Pool Factor will decline to reflect reductions in the outstanding
principal amount of the Class A-1 Notes.
"Class A-1 Note Rate" means, with respect to any Quarterly Interest
Period, the interest rate per annum (computed on the basis of the actual
number of days in such Quarterly Interest Period over a year of 360 days)
equal to Three-Month LIBOR for the related LIBOR Reset Period plus [o]%.
"Class A-1 Noteholder" means the Noteholder of a Class A-1 Note.
"Class A-1 Noteholders' Interest Carryover Shortfall" means, with
respect to any Quarterly Payment Date, the excess of (i) the Class A-1
Noteholders' Interest Distribution Amount on the preceding Quarterly Payment
Date over (ii) the amount of interest actually distributed to the Class A-1
Noteholders on such preceding Quarterly Payment Date, plus interest on the
amount of such excess, to the extent permitted by law, at the then current
Class A-1 Note Rate from such preceding Quarterly Payment Date to the current
Quarterly Payment Date.
"Class A-1 Noteholders' Interest Distribution Amount" means, with
respect to any Quarterly Payment Date, the sum of (i) the amount of interest
accrued at the Class A-1 Note Rate for the related Quarterly Interest Period
on the outstanding principal balance of the Class A-1 Notes on the immediately
preceding Quarterly Payment Date (after giving effect to all principal
distributions to holders of Class A-1 Notes on such date) or, in the case of
first Quarterly Payment Date, on the Closing Date and (ii) the Class A-1
Noteholders' Interest Carryover Shortfall for such Quarterly Payment Date.
"Class A-2 Note" means a Class A-2 Floating Rate Asset- Backed Senior
Note issued pursuant to the Indenture, substantially in the form of Exhibit
A-2 thereto.
"Class A-2 Note Final Maturity Date" means the [o] Quarterly Payment
Date.
"Class A-2 Note Pool Factor" as of the close of business on a
Quarterly Payment Date means a seven-digit decimal figure equal to the
outstanding principal amount of the Class A-2 Notes divided by the original
outstanding principal amount of the Class A-2 Notes. The Class A-2 Note Pool
Factor will be 1.0000000 as of the Closing Date; thereafter, the Class A-2
Note Pool Factor will decline to reflect reductions in the outstanding
principal balance of the Class A-2 Notes.
"Class A-2 Note Rate" means, with respect to any Quarterly Payment
Date and the related Quarterly Interest Period, the interest rate per annum
(computed on the basis of the
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actual number of days in such Quarterly Interest Period over a year of 360
days) equal to Three-Month LIBOR for the related LIBOR Reset Period plus [o]%.
"Class A-2 Noteholder" means the Noteholder of a Class A-2 Note.
"Class A-2 Noteholders' Interest Carryover Shortfall" means, with
respect to any Quarterly Payment Date, the excess of (i) the Class A-2
Noteholders' Interest Distribution Amount on the preceding Quarterly Payment
Date over (ii) the amount of interest actually distributed to the Class A-2
Noteholders on such preceding Quarterly Payment Date, plus interest on the
amount of such excess, to the extent permitted by law at the then current
Class A-2 Note Rate from such preceding Quarterly Payment Date to the current
Quarterly Payment Date.
"Class A-2 Noteholders' Interest Distribution Amount" means, with
respect to any Quarterly Payment Date, the sum of (i) the amount of interest
accrued at the Class A-2 Note Rate for the related Quarterly Interest Period
on the aggregate principal amount of the Class A-2 Notes outstanding on the
immediately preceding Quarterly Payment Date (after giving effect to all
principal distributions to holders of Class A-2 Notes on such date) or, in the
case of the first Quarterly Payment Date, on the Closing Date and (ii) the
Class A-2 Noteholders' Interest Carryover Shortfall for such Quarterly Payment
Date;
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" means [o].
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and Treasury Regulations promulgated thereunder.
"Collateral" has the meaning specified in the Granting Clause of the
Indenture.
"Collection Account" means the account designated as such,
established and maintained pursuant to Section 2(c) of the Administration
Agreement, which shall be an Eligible Deposit Account.
"Collection Account Closing Date Deposit" means $[o].
"Collection Period" means, with respect to the first Quarterly
Payment Date, the period beginning on the Cutoff Date and ending on [o], and
with respect to each subsequent Quarterly Payment Date, the Collection Period
means the three calendar months immediately following the end of the previous
Collection Period.
"Commission" means the Securities and Exchange Commission.
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"Consolidation Fee" means any Federal Origination Fee, Monthly Rebate
Fee or similar fee payable to the Department relating to the origination or
ownership of Consolidation Loans.
"Consolidation Loan" means a Student Loan made pursuant to the Higher
Education Act to consolidate the Borrower's obligations under various
federally authorized student loan programs into a single loan, as supplemented
by the addition of any related Add-on Consolidation Loans.
"Corporate Trust Office" means (i) with respect to the Indenture
Trustee, the principal office of the Indenture Trustee at which at any
particular time its corporate trust business shall be administered, which
office at the Closing Date is located at [o], Attention: [o] (telephone: [o];
facsimile: [o]) or at such other address as the Indenture Trustee may
designate from time to time by notice to the Noteholders and the Depositor, or
the principal corporate trust office of any successor Indenture Trustee (the
address of which the successor Indenture Trustee will notify the Noteholders
and the Depositor) and (ii) with respect to the Eligible Lender Trustee, the
principal corporate trust office of the Eligible Lender Trustee located at [o]
Attention: [o] (telephone: [o]; facsimile: [o]) or at such other address as
the Eligible Lender Trustee may designate by notice to the Depositor or the
principal corporate trust office of any successor Eligible Lender Trustee (the
address of which the successor Eligible Lender Trustee will notify the
Depositor.
"Custodian" means Xxxxx Fargo Bank South Dakota, National Association
in its capacity as custodian of the Borrower Notes or any permitted successor
Custodian.
"Cutoff Date" means [o].
"Default" means any occurrence that is, or with notice or the lapse
of time or both would become, an Event of Default.
"Deferral" means the period defined by the Higher Education Act and
the policies of the related Guarantor during which a Borrower (in Repayment)
is entitled to postpone making payments upon the submission of appropriate
documentation.
"Deferral Loan" means a Student Loan during a period of Deferral.
"Definitive Notes" has the meaning specified in Section 2.10 of the
Indenture.
"Delaware Trust" has the meaning specified in Section 10.01 of the
Trust Agreement.
"Delaware Trustee" has the meaning set forth in Section 10.01 of the
Trust Agreement.
"Deleted Student Loan" has the meaning specified in Section 3.02 of
the Loan Sale Agreement.
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"Delinquency Percentage" means, as of any date of determination, the
percentage equivalent of a fraction the numerator of which is the aggregate
principal balances of the Financed Student Loans which are Repayment Loans and
which either (a) are over 210 days delinquent or (b) have had claims filed
with the Department for which payment is still awaited, and the denominator of
which is the aggregate principal balance of the Financed Student Loans which
are Repayment Loans.
"Delivery" when used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
instruments and are susceptible of physical delivery ("Physical
Property"):
(i) transfer of possession thereof to the Indenture Trustee,
endorsed to, or registered in the name of, the Indenture Trustee or
its nominee or endorsed in blank;
(b) with respect to a certificated security:
(i) delivery thereof in bearer form to the Indenture Trustee;
or
(ii) delivery thereof in registered form to the Indenture
Trustee; and
(A) the certificate is endorsed to the Indenture Trustee
or in blank by effective endorsement; or
(B) the certificate is registered in the name of the
Indenture Trustee, upon original issue or registration of
transfer by the issuer;
(c) with respect to an uncertificated security:
(i) the delivery of the uncertificated security to the
Indenture Trustee; or
(ii) the issuer has agreed that it will comply with
instructions originated by the Indenture Trustee without further
consent by the registered owner;
(d) with respect to any security issued by the U.S. Treasury, the
Federal Home Loan Mortgage Corporation or by the Federal National
Mortgage Association that is a book-entry security held through the
Federal Reserve System pursuant to Federal book-entry regulations:
(i) a Federal Reserve Bank by book entry credits the book-entry
security to the securities account (as defined in 31 CFR Part 357)
of a participant (as defined in 31 CFR Part 357) which is also a
securities intermediary; and
(ii) the participant indicates by book entry that the
book-entry security has been credited to the Indenture Trustee's
securities account;
(e) with respect to a security entitlement:
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(i) the Indenture Trustee becomes the entitlement holder; or
(ii) the securities intermediary has agreed that it will comply
with entitlement orders originated by the Indenture Trustee;
(f) without further consent by the entitlement holder; for the
purpose of clauses (b) and (c) hereof "delivery" means:
(i) with respect to a certificated security:
(A) the Indenture Trustee acquires possession
thereof;
(B) another person (other than a securities
intermediary) either acquires possession thereof on behalf
of the Indenture Trustee or, having previously acquired
possession thereof, acknowledges that it holds for the
Indenture Trustee; or
(C) a securities intermediary acting on behalf of the
Indenture Trustee acquires possession of thereof, only if
the certificate is in registered form and has been
specially endorsed to the Indenture Trustee by an
effective endorsement;
(ii) with respect to an uncertificated security:
(A) the issuer registers the Indenture Trustee as the
registered owner, upon original issue or registration of
transfer; or
(B) another person (other than a securities
intermediary) either becomes the registered owner thereof
on behalf of the Indenture Trustee or, having previously
become the registered owner, acknowledges that it holds
for the Indenture Trustee;
(g) for purposes of this definition, except as otherwise indicated,
the following terms shall have the meaning assigned to each such term in
the UCC:
(i) "certificated security"
(ii) "effective endorsement"
(iii) "entitlement holder"
(iv) "instrument"
(v) "securities account"
(vi) "securities entitlement"
(vii) "securities intermediary"
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(viii) "uncertificated security"
(h) in each case of Delivery contemplated herein, the Indenture Trustee
shall make appropriate notations on its records, and shall cause same to be
made of the records of its nominees, indicating that securities are held in
trust pursuant to and as provided in this Agreement.
"Department" means the United States Department of Education, an
agency of the Federal government.
"Depositor" means Xxxxx Fargo Student Loans Receivables I, LLC.
"Depository Agreement" means, the agreement with respect to the Notes
attached to the Indenture as Exhibit B.
"Determination Date" means, with respect to any Monthly Payment Date,
the third Business Day preceding such Monthly Payment Date.
"Educational Institution" means any institution of higher education
that participates in the guaranteed loan programs authorized by Title IV of
the Higher Education Act and which is deemed eligible by a Guarantor to
participate in such Guarantor's program.
"Eligible Deposit Account" means either (a) a segregated account with
an Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution organized under the laws of the
United States of America or any one of the States (or any domestic branch of a
foreign bank), having corporate trust powers and acting as trustee for funds
deposited in such account, so long as any of the securities of such depository
institution have a credit rating from each Rating Agency in one of its generic
rating categories which signifies investment grade.
"Eligible Institution" means a depository institution organized under
the laws of the United States of America or any one of the States (or any
domestic branch of a foreign bank), which (i) has (A) either a long-term
senior unsecured debt rating of "AAA" by S&P and if rated by Fitch, "AAA" by
Fitch or a short-term senior unsecured debt or certificate of deposit rating
of "A-1+" by S&P and if rated by Fitch, "F-1+" by Fitch and (B)(1) a long-term
senior unsecured debt rating of "A1" or better and (2) a short-term senior
unsecured debt rating of "P-1" by Xxxxx'x, or any other long-term, short-term
or certificate of deposit rating acceptable to the Rating Agencies and (ii)
whose deposits are insured by the FDIC. If so qualified, the Eligible Lender
Trustee or the Indenture Trustee may be considered an Eligible Institution.
"Eligible Investments" means book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
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(b) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States of America or any State (or any domestic branch of a foreign
bank) and subject to supervision and examination by Federal or state banking
or depository institution authorities (including depository receipts issued by
any such institution or trust company as custodian with respect to any
obligation referred to in clause (a) above or portion of such obligation for
the benefit of the holders of such depository receipts); provided, however,
that at the time of the investment or contractual commitment to invest therein
(which shall be deemed to be made again each time funds are reinvested
following each Quarterly Payment Date), the commercial paper or other
short-term senior unsecured debt obligations (other than such obligations the
rating of which is based on the credit of a Person other than such depository
institution or trust company) thereof shall have a credit rating from each of
the Rating Agencies in the highest investment category granted thereby;
(c) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the Rating
Agencies in the highest investment category granted thereby;
(d) investments in money market funds having a rating from each of
the Rating Agencies in the highest investment category granted thereby
(including funds for which the Indenture Trustee, the Servicer or the Eligible
Lender Trustee or any of their respective Affiliates is investment manager or
advisor);
(e) bankers' acceptances issued by any depository institution or
trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America or
any agency or instrumentality thereof the obligations of which are backed by
the full faith and credit of the United States of America, in either case
entered into with a depository institution or trust company (acting as
principal) described in clause (b) above;
(g) any other investment permitted by each of the Rating Agencies as
set forth in a writing delivered to the Indenture Trustee.
No obligation will be considered to be rated in the highest
investment category if it has an "r" highlighter affixed to its rating.
Fitch shall be considered to be a "Rating Agency" for the purpose of
assessing the eligibility hereunder of any investment pursuant to clause (b),
(c), (d), (e), and (f) only if Fitch is providing a rating which can be used,
pursuant to the terms of the applicable clause, to assess such investment.
"Eligible Lender Trustee" means Bank One, National Association, a
national banking association, not in its individual capacity but solely as
Eligible Lender Trustee under the Trust Agreement.
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"Event of Default" has the meaning specified in Section 5.01 of the
Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, any Executive Vice President, any Senior Vice President, any Vice
President, the Secretary or the Treasurer of such corporation; and with
respect to any partnership, any general partner thereof.
["Expected Interest Collections" means, with respect to any Quarterly
Interest Period, the sum of (i) the amount of interest accrued, net of accrued
Monthly Rebate Fees and other amounts required by the Higher Education Act to
be paid to the Department, with respect to the Financed Student Loans for the
related Student Loan Rate Accrual Period (whether or not such interest is
actually paid), (ii) all Interest Subsidy Payments and Special Allowance
Payments estimated to have accrued for such Student Loan Rate Accrual Period
whether or not actually received (taking into account any expected deduction
therefrom of Federal Origination Fees) and (iii) Investment Earnings for such
Student Loan Rate Accrual Period.]
"Expenses" means any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable legal fees and expenses) of
any kind and nature whatsoever which may at any time be imposed on, incurred
by, or asserted against the Eligible Lender Trustee or any of its officers,
directors or agents in any way relating to or arising out of the Trust
Agreement, the other Basic Documents, the Trust Estate, the administration of
the Trust Estate or the action or inaction of the Eligible Lender Trustee
under the Trust Agreement or the other Basic Documents.
"FDIC" means the Federal Deposit Insurance Corporation.
"Federal Guarantor" means a state or private non-profit guarantor
that guarantees the payment of principal of and interest on any of the
Financed Student Loans, which agency is reinsured by the Department under the
Higher Education Act for between (x) 80% and 100% of the amount of default
claims paid by such Federal Guarantor for a given federal fiscal year for
loans disbursed prior to October 1, 1993, for 78% to 98% of default claims
paid for loans disbursed on or after October 1, 1993 but prior to October 1,
1998 any (y) 75% to 95% of the amount of default claims paid to by such
Federal Guarantor for a given federal fiscal year for loans disbursed on or
after October 1, 1998 and for 100% of death, disability, bankruptcy, closed
school and false certification claims paid.
"Federal Origination Fee" means, with respect to each Consolidation
Loan that is originated by the Eligible Lender Trustee on behalf of the Issuer
and each Add-on Consolidation Loan that is added to the principal balance of a
Consolidation Loan, the origination fee payable to the Department equal to
0.5% of the initial principal balance of such Consolidation Loan or Add-on
Consolidation Loan.
"Financed Student Loans" means those Student Loans that, as of any
date of determination, have been conveyed to the Issuer, consisting of the
Initial Financed Student Loans
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as of the Closing Date and, thereafter, any
Prefunded Loans or Serial Loans conveyed to the Issuer from the Depositor, any
Consolidation Loans originated by the Trust as provided in Section 6.07 of the
Trust Agreement, any Consolidation Loans the principal balance of which is
increased by the principal balance of any related Add-on Consolidation Loan as
provided in Section 6.07 of the Trust Agreement and any Qualified Substitute
Student Loans conveyed to the Issuer as provided in Section 3.02 of the Loan
Sale Agreement.
"Fitch" means Fitch, Inc. or any successor thereto.
"Forbearance Loan" means a Student Loan during a period of
forbearance of loan collections pursuant to the Higher Education Act.
"Funding Period" means the period from the Closing Date until the
first to occur of (a) the Quarterly Payment Date on which the amount on
deposit in the Prefunding Account is less than $100,000, (b) an Event of
Default occurring under the Indenture, a Servicer Default occurring under the
Servicing Agreement or an Administrator Default occurring under the
Administration Agreement, (c) an event of insolvency occurring with respect to
the Depositor or the Seller, or (d) the last day of the Collection Period
preceding the [o] Quarterly Payment Date.
"Grace" means the initial period following reduction by the student
Borrower to less than the minimum course load required by the Higher Education
Act, during which the student Borrower is not required to make payments on the
principal amount of the Borrower Note(s).
"Grace Loan" means a Student Loan during a period of Grace.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create, and xxxxx x xxxx upon and a
security interest in and right of set-off against, deposit, set over and
confirm pursuant to the Indenture. A Grant of the Collateral or of any other
agreement or instrument shall include all rights, powers and options (but none
of the obligations) of the Granting party thereunder, including the immediate
and continuing right to claim for, collect, receive and give receipt for
principal and interest payments in respect of the Collateral and all other
moneys payable thereunder, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights
and options, to bring Proceedings in the name of the Granting party or
otherwise and generally to do and receive anything that the Granting party is
or may be entitled to do or receive thereunder or with respect thereto.
"Guarantee Agreement" means each agreement to guarantee Student Loans
entered into by the Eligible Lender Trustee on behalf of the Trust with a
Guarantor.
"Guarantee Payment" means any payment made by a Guarantor pursuant to
a Guarantee Agreement in respect of a Student Loan.
"Guarantor" means the Initial Guarantors and any Additional Guarantors.
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"Higher Education Act" means the Higher Education Act of 1965, as
amended, together with any rules, regulations and interpretations thereunder.
"Indenture" means the Indenture dated as of November [o], 2001,
between the Issuer and the Indenture Trustee.
"Indenture Trust Estate" means all money, instruments, rights and
other property that are subject or intended to be subject to the lien and
security interest of the Indenture for the benefit of the Noteholders
(including all property and interests Granted to the Indenture Trustee),
including all proceeds thereof.
"Indenture Trustee" means Chase Manhattan Bank, a national banking
association, not in its individual capacity but solely as Indenture Trustee
under the Indenture.
"Independent" means, when used with respect to any specified Person,
that the Person (a) is in fact independent of the Issuer, any other obligor
upon the Notes, the Seller and any Affiliate of any of the foregoing Persons,
(b) does not have any direct financial interest or any material indirect
financial interest in the Issuer, any such other obligor, the Seller or any
Affiliate of any of the foregoing Persons and (c) is not connected with the
Issuer, any such other obligor, the Seller or any Affiliate of any of the
foregoing Persons as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.01 of the
Indenture, made by an Independent appraiser or other expert appointed by an
Issuer Order and approved by the Indenture Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer
has read the definition of "Independent" in the Indenture and that the signer
is Independent within the meaning thereof.
"Initial Financed Student Loans" means those Financed Student Loans
conveyed to the Issuer on the Closing Date and listed on the Schedule of
Student Loans on such date.
"Initial Guarantors" means United Student Aid Funds, Inc., a Delaware
non-profit corporation, and its successors and certain other Federal
Guarantors.
"Initial Pool Balance" means $[o].
"In-School Loan" means a Student Loan during the period, excluding
periods of in-school Deferral, during which a student Borrower is enrolled at
an Educational Institution for at least the minimum course load required to
maintain such student Borrower's eligibility to borrow under the education
loan programs administered by the Guarantor.
"Insolvency Event" means, with respect to a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in
an involuntary case under any applicable Federal or state
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bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official for such Person or for any substantial part of its
property, or ordering the winding-up or liquidation of such Person's affairs,
and such decree or order shall remain unstayed and in effect for a period of
sixty consecutive days; or (b) the commencement by such Person of a voluntary
case under any applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or the consent by such Person to the
entry of an order for relief in an involuntary case under any such law, or the
consent by such Person to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its property, or the
making by such Person of any general assignment for the benefit of creditors,
or the failure by such Person generally to pay its debts as such debts become
due, or the taking of action by such Person in furtherance of any of the
foregoing.
"Interest Subsidy Payments" means payments, designated as such,
consisting of interest subsidies by the Department in respect of the Financed
Student Loans to the Eligible Lender Trustee on behalf of the Trust in
accordance with the Higher Education Act.
"Investment Earnings" means, with respect to any Monthly Payment
Date, the investment earnings (net of losses and investment expenses) on
amounts on deposit in the Trust Accounts to be deposited into the Collection
Account on or prior to such Monthly Payment Date or Quarterly Payment Date, as
applicable, pursuant to Section 2(c)(v) of the Administration Agreement.
"Issuer" means Xxxxx Fargo Student Loan Trust 2001-1, until a
successor replaces it and, thereafter, means the successor and, for purposes
of any provision contained in the Indenture and required by the TIA, each
other obligor on the Notes.
"Issuer Order" and "Issuer Request" means a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee.
"LIBOR Determination Date" means, (a) with respect to any Quarterly
Interest Period, other than the initial Quarterly Interest Period, the day
that is the second business day prior to the commencement of the LIBOR Reset
Period within such Quarterly Interest Period (or, in the case of the initial
LIBOR Reset Period, on the second business day prior to the Closing Date) and
(b) with respect to the initial Quarterly Interest Period, as determined
pursuant to clause (a) for the period from the Closing Date to but excluding
[o] and as determined on the second Business Day prior to [o] for the period
from [o] to but excluding [o]. For purposes of this definition, a business day
is any day in which banks in the City of London and The City of New York are
open for the transaction of international business.
"LIBOR Reset Period" means the three-month period commencing on the
twenty-eighth day (or, if any such day is not a Business Day, on the next
succeeding Business Day) of each January, April, July and October and ending
on the day immediately preceding the following LIBOR Reset Period; provided,
however, that the initial LIBOR Reset Period will commence on the Closing
Date.
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"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens and any other liens, if any,
which attach to the respective Student Loan by operation of law as a result of
any act or omission by the related Obligor.
"Liquidated Student Loan" means any defaulted Financed Student Loan
liquidated by the Servicer or which the Servicer has, after using all
reasonable efforts to realize upon the such Student Loan, determined to charge
off.
"Liquidation Proceeds" means, with respect to any Liquidated Student
Loan, the moneys collected in respect thereof from whatever source, other than
Recoveries, net of the sum of any reasonable out-of-pocket expenses incurred
by the Servicer in connection with such liquidation and any amounts required
by law to be remitted to the Borrower on such Liquidated Student Loan.
"Loan Purchase Amount" means with respect to a Prefunded Loan or a
Serial Loan to be purchased from the Depositor by the Issuer, an amount equal
as of the related Subsequent Cut-off Date, to the principal balance of such
loan plus accrued borrower interest thereon if and to the extent that such
interest is not then payable and will, pursuant to the terms of such loan, be
capitalized and added to the principal balance of such loan.
"Loan Sale Agreement" means the Loan Sale Agreement dated as of
November [o], 2001 among the Issuer, the Depositor, the Seller and the
Eligible Lender Trustee.
"Servicer" means Xxxxx Fargo Bank South Dakota, National Association,
in its capacity as servicer of the Financed Student Loans or any permitted
Successor Servicer.
"Servicer Default" means an event specified in Section 6.01 of the
Servicing Agreement.
"Servicer Liability Limit" has the meaning specified in Section
3.05(a) of the Servicing Agreement.
"Servicer Liability Period" has the meaning specified in Section
3.05(a) of the Servicing Agreement.
"Minimum Purchase Price" means, as to any Quarterly Payment Date, an
amount equal to the greater of (i) the aggregate Purchase Amounts of the
Financed Student Loans as of the end of the Collection Period immediately
preceding such Quarterly Payment Date and (ii) an amount that would be
sufficient to (A) reduce the outstanding principal amount of the Notes then
outstanding on such Quarterly Payment Date to zero, (B) pay to the Noteholders
the Noteholders' Interest Distribution Amount payable on such Quarterly
Payment Date (without giving effect to the Subordinate Note Trigger), (C) pay
to any Swap Counterparties all amounts owed by the Trust to any Swap
Counterparties under the Swap Agreements, and (D) pay to the Servicer and the
Administrator all amounts owed to such entities under any of the Basic
Documents.
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"Monthly Available Funds" means, with respect to each Monthly Payment
Date that is not a Quarterly Payment Date, the sum of the following amounts
with respect to the related Monthly Collection Period: (i) all collections
received by the Servicer on the Financed Student Loans during such Collection
Period (net, for the first Collection Period, of interest accrued prior to the
Cutoff Date that is not to be capitalized) and remitted to the Indenture
Trustee (including any Guarantee Payments received with respect to the
Financed Student Loans); (ii) any Interest Subsidy Payments and Special
Allowance Payments received by the Eligible Lender Trustee during such Monthly
Collection Period with respect to the Financed Student Loans; (iii) all
Liquidation Proceeds from any Financed Student Loans which became Liquidated
Student Loans during such Monthly Collection Period in accordance with the
Servicer's customary servicing procedures, and all Recoveries in respect of
Liquidated Student Loans which were written off in prior Monthly Collection
Periods, in each case which have been received by the Servicer and remitted to
the Indenture Trustee; (iv) the aggregate Purchase Amounts received by the
Indenture Trustee for those Financed Student Loans repurchased by the Seller
or purchased by the Servicer under an obligation which arose during the
related Monthly Collection Period; (v) Investment Earnings for such Monthly
Payment Date; and (vi) with respect to each Monthly Payment Date other than a
Quarterly Payment Date and other than an Monthly Payment Date immediately
succeeding a Quarterly Payment Date, the Monthly Available Funds remaining
from the Monthly Collection Period relating to the preceding Monthly Payment
Date after giving effect to the application of such Monthly Available Funds on
such preceding Monthly Payment Date; provided, however, that if with respect
to any Monthly Payment Date there would not be sufficient funds, after
application of the Monthly Available Funds (as defined above) and amounts
available from the Prefunding Account and from the Reserve Account, to pay any
of the items specified in Section 2(d)(iv) of the Administration Agreement,
then the Monthly Available Funds for such Monthly Payment Date will include,
in addition to the Monthly Available Funds (as defined above), amounts on
deposit in the Collection Account on the Determination Date relating to such
Monthly Payment Date which would have constituted Monthly Available Funds for
the Monthly Payment Date succeeding such Monthly Payment Date up to the amount
necessary to pay such items, and the Monthly Available Funds for such
succeeding Monthly Payment Date will be adjusted accordingly; and provided,
further, that the Monthly Available Funds will exclude (A) all payments and
proceeds (including Liquidation Proceeds) of any Financed Student Loan the
Purchase Amount of which has been included in the Monthly Available Funds for
a prior Monthly Collection Period, (B) amounts released from the Prefunding
Account, (C) any Monthly Rebate Fees paid during the related Monthly
Collection Period by or on behalf of the Trust and (D) any collections in
respect of principal on the Financed Student Loans applied during the related
Monthly Collection Period by the Eligible Lender Trustee on behalf of the
Trust after the end of the Funding Period used to fund the addition of any
Add-on Consolidation Loans or to purchase Serial Loans during such Monthly
Collection Period.
"Monthly Collection Period" means, with respect to any Monthly
Payment Date that is not a Quarterly Payment Date, the calendar month
immediately preceding the month of such Monthly Payment Date.
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"Monthly Payment Date" means the twenty-fifth day of each month (or,
if any such date is not a Business Day, on the next succeeding Business Day)
commencing [o].
"Monthly Rebate Fee" means, for each calendar month and with respect
to each Consolidation Loan that was originated on or after October 1, 1993
(except for Consolidation Loans referred to in clause (B) below), the fee
payable to the Department equal to the product of (x) one-twelfth, (y) (A)
with respect to all of the Consolidation Loans (other than those, the
applications of which have been received during the period from October 1,
1998 through January 31, 1999), 1.05% or (B) with respect to Consolidation
Loans, the applications of which have been received during the period from
October 1, 1998 through January 31, 1999, 0.62% and (z) the outstanding
principal balance of such Consolidation Loan (including any increases in the
principal balance of a Consolidation Loan due to the addition of the principal
balance of a related Add-on Consolidation Loan) plus accrued interest on such
Consolidation Loan as of the last day of such month.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Principal Cash Flow Amount" means, as of any date, the Principal
Cash Flow Amount (calculated for the Collection Period ending in the preceding
calendar month or, if no Collection Period ended in the preceding calendar
month, calculated for each preceding calendar month during the current
Collection Period) minus the Capitalized Interest Amount for such Collection
Period or for each such preceding calendar month, as the case may be.
"Net Trust Swap Payment" means, with respect to any Quarterly Payment
Date, the difference, if negative, between the regularly scheduled amount
(without regard to any carryover amounts or Termination Payments) owed by any
Swap Counterparty to the Trust on a Quarterly Payment Date and the regularly
scheduled amount (without regard to any carryover amounts or Termination
Payments) owed by the Trust to such Swap Counterparty on such Quarterly
Payment Date pursuant to Section 2 of a Swap Agreement.
"Net Trust Swap Payment Carryover Shortfall" means, with respect to
any Quarterly Payment Date with respect to which amounts are still owing to
any Swap Counterparty in respect of a Swap Agreement, the excess of (i) the
Trust Swap Payment Amount for such Swap Agreement on the preceding Quarterly
Payment Date over (ii) the amount actually received by such Swap Counterparty
out of the Available Funds or the Reserve Account on such preceding Quarterly
Payment Date plus interest on such excess from such preceding Quarterly
Payment Date to the current Quarterly Payment Date at the rate of Three-Month
LIBOR for the related Quarterly Interest Period.
"Net Trust Swap Receipt" means, with respect to any Quarterly Payment
Date, the difference, if positive, between the regularly scheduled amount
(without regard to any carryover amounts or Termination Payments) owed by any
Swap Counterparty to the Trust on a Quarterly Payment Date and the regularly
scheduled amount (without regard to any carryover amounts or Termination
Payments) owed by the Trust to such Swap Counterparty on such Quarterly
Payment Date pursuant to Section 2 of a Swap Agreement.
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"Net Trust Swap Receipt Carryover Shortfall" means, with respect to
any Quarterly Payment Date with respect to which amounts are still owing to
the Trust in respect of a Swap Agreement, the excess of (i) the Trust Swap
Receipt Amount for such Swap Agreement on the preceding Quarterly Payment Date
over (ii) the amount actually paid by the related Swap Counterparty to the
Trust on such preceding Quarterly Payment Date plus interest on such excess
from such preceding Quarterly Payment Date to the current Quarterly Payment
Date at the rate of Three-Month LIBOR for the related Quarterly Interest
Period.
"91-Day Treasury Bills" means direct obligations of the United States
with a maturity of thirteen weeks.
"Note Owner" means, with respect to a Book-Entry Note, the Person who
is the owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing
Agency).
"Note Rate" means any one of the Class A-1 Note Rate, the Class A-2
Note Rate or the Subordinate Note Rate, as the case may be.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.04 of the Indenture.
"Noteholder" means the Person in whose name a Note is registered in
the Note Register.
"Noteholders' Interest Distribution Amount" means, with respect to
any Quarterly Payment Date, the sum of the Class A-1 Noteholders' Interest
Distribution Amount, the Class A-2 Noteholders' Interest Distribution Amount
and the Subordinate Noteholders' Interest Distribution Amount.
"Notes" means, collectively, the Class A-1 Notes, Class A-2 Notes and
the Subordinate Notes.
"Obligor" on a Student Loan means the borrower or co-borrowers of
such Student Loan and any other Person who owes payments in respect of such
Student Loan, including the Guarantor thereof and, with respect to any
Interest Subsidy Payment or Special Allowance Payment, if any, thereon, the
Department.
"Officers' Certificate" means (i) in the case of the Issuer, a
certificate signed by any two Authorized Officers of the Issuer, under the
circumstances described in, and otherwise complying with, the applicable
requirements of Section 11.01 of the Indenture, and delivered to the Indenture
Trustee and (ii) in the case of the Seller, the Servicer or the Administrator,
a certificate signed by any two Authorized Officers of the Seller, the
Servicer or the Administrator, as appropriate.
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"Opinion of Counsel" means (i) with respect to the Issuer, one or
more written opinions of counsel who may, except as otherwise expressly
provided in the Indenture, be employees of or counsel to the Issuer and who
shall be satisfactory to the Indenture Trustee, and which opinion or opinions
shall be addressed to the Indenture Trustee as Indenture Trustee, shall comply
with any applicable requirements of Section 11.01 of the Indenture, and shall
be in form and substance satisfactory to the Indenture Trustee and (ii) with
respect to the Seller, the Administrator, the Servicer or a Federal Guarantor,
one or more written opinions of counsel who may be an employee of or counsel
to the Seller, the Administrator, the Servicer or such Federal Guarantor,
which counsel shall be acceptable to the Indenture Trustee, the Eligible
Lender Trustee or the Rating Agencies, as applicable.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or delivered
to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Noteholders thereof
(provided, however, that if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to the Indenture); and
(iii) Notes in exchange for or in lieu of other Notes which have
been authenticated and delivered pursuant to the Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes
are held by a bona fide purchaser;
provided, however, that in determining whether the Noteholders of the
requisite Outstanding amount of the Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any
other Basic Document, Notes owned by the Issuer, any other obligor upon the
Notes, the Seller or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Notes that a Responsible Officer of the Indenture Trustee either actually
knows to be so owned or has received written notice thereof shall be so
disregarded. Notes so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Indenture Trustee the pledgee's right so to act with respect to such Notes and
that the pledgee is not the Issuer, any other obligor upon the Notes, the
Seller or any Affiliate of any of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all
Notes Outstanding at the date of determination.
"Parity Date" means the first Quarterly Payment Date on which the
aggregate principal amount of the Notes, after giving effect to all
distributions on such date, is no longer in
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excess of the sum of the Pool Balance plus the amount on deposit in the
Prefunding Account as of the last day of the related Collection Period.
"Paying Agent" means the Indenture Trustee or any other Person that
meets the eligibility standards for the Indenture Trustee specified in Section
6.11 of the Indenture and is authorized by the Issuer to make the payments to
and distributions from the Collection Account and payments of principal of and
interest and any other amounts owing on the Notes on behalf of the Issuer.
"Person" means any individual, corporation, estate, partnership,
joint venture, limited liability company, limited liability partnership,
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political
subdivision thereof.
"Physical Property" has the meaning assigned to such term as the
definition of "Delivery" above.
"PLUS Loan" means a Student Loan designated as such that is made
under the Parent Loans to Undergraduate Students Program pursuant to the
Higher Education Act.
"Pool Balance" means, as of the close of business on the last day of
any Collection Period, the aggregate principal balances of the Financed
Student Loans as of such day (including accrued interest thereon for the
immediately preceding Collection Period to the extent such interest will be
capitalized upon commencement of repayment, excluding any Purchased Student
Loans and Liquidated Student Loans).
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced
by such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.05 of the Indenture and in lieu of
a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the
same debt is the mutilated, lost, destroyed or stolen Note.
"Prefunded Loans" means those Financed Student Loans acquired by the
Issuer with funds on deposit in the Prefunding Account.
"Prefunding Account" means the account designated as such,
established and maintained pursuant to Section 2(c) of the Administration
Agreement, which shall be an Eligible Deposit Account.
"Prefunding Account Closing Date Deposit" means $[o].
"Principal Cash Flow Amount" means, with respect to any Quarterly
Payment Date, the sum of the following amounts with respect to the related
Collection Period, or with respect to any other date of determination, the sum
of the following amounts with respect to the period specified: (i) that
portion of all collections received by the Servicer and remitted to the
Indenture Trustee on the Financed Student Loans that is allocable to principal
(including the
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portion of any Guarantee Payments received that is allocable to principal of
the Financed Student Loans); (ii) all Liquidation Proceeds attributable to the
principal amount of Financed Student Loans which became Liquidated Student
Loans during such Collection Period, or such other specified period, in
accordance with the Servicer's customary servicing procedures and have been
received by the Servicer during such Collection Period and remitted to the
Indenture Trustee, together with all Realized Losses on such Financed Student
Loans; (iii) to the extent attributable to principal, the Purchase Amount
received by the Indenture Trustee with respect to each Financed Student Loan
repurchased by the Seller or purchased by the Servicer as a result of a breach
of a representation, warranty or covenant which arose during the related
Collection Period or such other specified period; and [(iv) the Principal
Distribution Adjustment; provided, however, that the Principal Distribution
Amount will exclude all payments and proceeds (including Liquidation Proceeds)
of any Financed Student Loans the Purchase Amount of which has been included
in Available Funds for a prior Collection Period].
["Principal Distribution Adjustment" means, with respect to any
Quarterly Payment Date, the amount of the Available Funds on such Quarterly
Payment Date to be used to make additional principal distributions to
Noteholders to account for (i) the amount of any insignificant balance
remaining outstanding as of such Quarterly Payment Date on a Financed Student
Loan after receipt of a final payment from a Borrower or a Guarantor, when
such insignificant balances are waived in the ordinary course of business by
the Servicer at the direction of the Administrator in accordance with the
Servicing Agreement or (ii) the amount of principal collections erroneously
treated as interest collections including, without limitation, by reason of
the failure by a Borrower to capitalize interest that had been expected to be
capitalized; provided, however, that the Principal Distribution Adjustment for
any Quarterly Payment Date shall not exceed the lesser of (x) $100,000 and (y)
the amount of any Reserve Account Excess after giving effect to all
distributions to be made therefrom on such Quarterly Payment Date other than
distributions to the Company out of such excess.]
"Principal Distribution Amount" means, with respect to any Quarterly
Payment Date, the Net Principal Cash Flow Amount for such Quarterly Payment
Date minus the sum of (i) any funds remitted to the Seller during the
preceding Collection Period for the Purchase Collateral Balance of Serial
Loans and (ii) any funds which are applied during the preceding Collection
Period to fund the addition of the principal balance of any Add-on
Consolidation Loan to the principal balance of a related Consolidation Loan.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Purchase Amount" means, with respect to a Financed Student Loan
other than a Serial Loan to be purchased from the Issuer, the amount required,
as of the close of business on the last day of a Monthly Interest Period or
Quarterly Interest Period, as applicable, to prepay in full the respective
Student Loan under the terms thereof including all accrued borrower interest
thereon; provided, however, that the Purchase Amount for a Financed Student
Loan, which is being repurchased by the Seller as a result of a breach of the
representation and warranty provided for in the last sentence of the first
paragraph of Exhibit C to the Loan Sale Agreement will be calculated without
regard to any amount which the Seller has advanced with respect to
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such loan and which was not reflected by the principal balance of such loan as
of the Cutoff Date (or the applicable Subsequent Cutoff Date, as the case may
be) after the loan was sold into the Trust.
"Purchased Student Loan" means a Financed Student Loan purchased as
of the close of business on the last day of a Monthly Collection Period or
Collection Period, as applicable, by the Servicer pursuant to Section 3.05 of
the Servicing Agreement or repurchased by the Seller pursuant to Section 3.02
of the Loan Sale Agreement.
"Qualified Substitute Student Loan" means a Student Loan that (i) was
originated under the same loan program and is guaranteed by a Guarantor and
entitles the holder thereof to receive interest based on the same interest
rate index as the related Deleted Student Loan for which it is to be
substituted, and (ii) will not, at any level of such interest rate index, have
an interest rate that is less than that of such Deleted Student Loan.
"Quarterly Payment Date" means the Monthly Payment Date occurring in
each February, May, August and November, commencing with the Monthly Payment
Date occurring in [o].
"Quarterly Interest Period" means, with respect to a Quarterly
Payment Date, the period from and including the Quarterly Payment Date
immediately preceding such Quarterly Payment Date (or in the case of the first
Quarterly Payment Date, the Closing Date) to but excluding such Quarterly
Payment Date. In the case of the initial Quarterly Interest Period, interest
will accrue for the period from the Closing Date to but excluding [o]
(computed on the basis of the actual number of days elapsed in such Quarterly
Interest Period over a year of 360 days) based on Three-Month LIBOR as
determined on the initial LIBOR Determination Date and interest will accrue
for the period from [o] to but excluding [o] (computed on the basis of the
actual number of days elapsed in such Quarterly Interest Period over a year of
360 days) based on Three-Month LIBOR as determined on the LIBOR Determination
Date in [o].
"Rating Agency" means Xxxxx'x, S&P and Fitch. If no such organization
or successor is any longer in existence, "Rating Agency" shall be a nationally
recognized statistical rating organization or other comparable Person
designated by the Seller, notice of which designation shall be given to the
Indenture Trustee, the Eligible Lender Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that
each Rating Agency shall have been given ten days' prior notice thereof and
that each of the Rating Agencies shall have notified the Seller, the Servicer,
the Eligible Lender Trustee and the Indenture Trustee in writing that such
action will not result in and of itself in a reduction or withdrawal of the
then current rating of the Class A-1 Notes, the Class A-2 Notes or the
Subordinate Notes.
"Rating Agency Swap Condition" means, with respect to any new Swap
Agreement or amendment to a Swap Agreement, that (1) the Swap Counterparty has
a counterparty rating of at least "A2" by Xxxxx'x or "A" by S&P; (2) each
Rating Agency shall have been given ten days' prior written notice of the name
of the related Swap Counterparty and the terms of the related Swap Agreement;
and (3) prior to the expiration of ten days following
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such notice that none of the Rating Agencies shall have notified the
Administrator, the Seller, the Servicer, the Eligible Lender Trustee or the
Indenture Trustee in writing that such action will result in and of itself in
a reduction, withdrawal or placement of credit watch on the then current
rating of the Class A-1 Notes, the Class A-2 Notes or the Subordinate Notes.
"Realized Losses" means the excess of the aggregate principal balance
of any Liquidated Student Loan plus accrued but unpaid interest thereon over
Liquidation Proceeds to the extent allocable to principal.
"Record Date" means, with respect to a Quarterly Payment Date or a
Redemption Date, the close of business on the twenty-seventh day of the
calendar month in which such Quarterly Payment Date or Redemption Date occurs
(whether or not such date is a Business Day).
"Recoveries" means, with respect to any Liquidated Student Loan, all
monies in respect thereof, from whatever source, that have been received by
the Servicer and remitted to the Indenture Trustee during any Monthly
Collection Period or Collection Period, as applicable, following the Monthly
Collection Period or Collection Period, as applicable, in which such Financed
Student Loan became a Liquidated Student Loan, net of the sum of all
reasonable amounts expended by the Servicer for the account of any Obligor to
the extent not previously reimbursed from Liquidation Proceeds or otherwise
and any amounts required by law to be remitted to the Obligor.
"Redemption Date" means in the case of a payment to the Noteholders
pursuant to Section 10.01 of the Indenture, the Quarterly Payment Date
specified by the Administrator or the Issuer pursuant to Section 10.01 (b) or
(c) of the Indenture.
"Redemption Price" means, in the case of a payment made to the
Noteholders pursuant to Section 10.01 (b) or (c) of the Indenture, the
Outstanding Amount of the Notes and all accrued and unpaid interest thereon.
"Reference Banks" means four major banks in the London interbank
market selected by the Administrator.
"Repayment" means the period of time during which a Borrower is
required to make installment payments to repay the aggregate principal amount
plus accrued interest of all amounts borrowed by virtue of the Borrower
Note(s) executed by such Borrower.
"Repayment Loan" means a Student Loan during a period of Repayment.
"Reserve Account" means the account designated as such, established
and maintained pursuant to Section 2(c) of the Administration Agreement, which
shall be an Eligible Deposit Account.
"Reserve Account Excess" has the meaning specified in Section
2(e)(ii) of the Administration Agreement.
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"Reserve Account Initial Deposit" means $[o].
"Responsible Officer" means, with respect to the Indenture Trustee,
any officer within the Corporate Trust Office of the Indenture Trustee,
including any vice president, assistant vice president, assistant treasurer,
assistant secretary, or any other officer of the Indenture Trustee customarily
performing functions similar to those performed by any of the above designated
officers, with direct responsibility for the administration of the Indenture
and the other Basic Documents on behalf of the Indenture Trustee and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Schedule of Student Loans" means the listing of the Financed Student
Loans set forth in Schedule A to the Loan Sale Agreement and to the Indenture
(which Schedule may be in the form of microfiche) as the same may be amended
from time to time.
"Secretary" means the Secretary of the Department, or any predecessor
or successor to the functions thereof under the Higher Education Act.
"Securities Act" means the federal Securities Act of 1933, as
amended.
"Seller" means Xxxxx Fargo Bank South Dakota, National Association,
in its capacity as seller of the Financed Student Loans.
"Senior Noteholder" means the Noteholder of a Senior Note.
"Senior Noteholders' Distribution Amount" means, with respect to any
Quarterly Payment Date, the sum of the Class A-1 Noteholders' Interest
Distribution Amount, the Class A-2 Noteholders' Interest Distribution Amount
and the Senior Noteholders' Principal Distribution Amount for such Quarterly
Payment Date.
"Senior Noteholders' Interest Distribution Amount" means, with
respect to any Quarterly Payment Date, the sum of (i) the Class A-1
Noteholders' Interest Distribution Amount and (ii) the Class A-2 Noteholders'
Interest Distribution Amount, each for such Quarterly Payment Date.
"Senior Noteholders' Principal Carryover Shortfall" means, as of the
close of any Quarterly Payment Date, the excess of (i) the Senior Noteholders'
Principal Distribution Amount on such Quarterly Payment Date over (ii) the
amount of principal actually distributed to the Senior Noteholders on such
Quarterly Payment Date.
"Senior Noteholders' Principal Distribution Amount" means, with
respect to any Quarterly Payment Date, the Principal Distribution Amount for
such Quarterly Payment Date plus the Senior Noteholders' Principal Carryover
Shortfall as of the close of the preceding
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Quarterly Payment Date; provided, however, that the Senior Noteholders'
Principal Distribution Amount will not exceed the outstanding aggregate
principal balance of the Senior Notes. In addition, (i) on the Class A-1 Note
Final Maturity Date, the principal required to be distributed to Class A-1
Noteholders will include the amount required to reduce the outstanding
principal balance of the Class A-1 Notes to zero and (ii) on the Class A-2
Note Final Maturity Date, the principal required to be distributed to Class
A-2 Noteholders will include the amount required to reduce the outstanding
principal balance of the Class A-2 Notes to zero.
"Senior Notes" means, collectively, the Class A-1 Notes and the Class
A-2 Notes.
"Serial Loan" means a Financed Student Loan which (i) is made by an
eligible lender under the Higher Education Act to a Borrower who is also a
Borrower under at least one outstanding Financed Student Loan and is acquired
by the Seller, (ii) is made under the same federal loan program as such
Financed Student Loan, (iii) has the same Guarantor as such Financed Student
Loan and (iv) has a final maturity date during or before the Collection Period
preceding the Subordinate Note Final Maturity Date.
"Servicing Agreement" means the Servicing Agreement dated as of [o],
among the Issuer, the Servicer, the Depositor and the Eligible Lender Trustee.
"Servicing Fee" has the meaning specified in Section 3.06 of the
Servicing Agreement.
"SLS Loan" means a Student Loan designated as such that is made under
the Supplemental Loans for Students Program pursuant to the Higher Education
Act.
"Special Allowance Payments" means payments, designated as such,
consisting of effective interest subsidies by the Department in respect of the
Financed Student Loans to the Eligible Lender Trustee on behalf of the Trust
in accordance with the Higher Education Act.
"Specified Reserve Account Balance" with respect to any Quarterly
Payment Date means the greatest of (a) 0.25% of the principal balance of the
Notes after taking into account the effect of distributions on such Quarterly
Payment Date and (b) $500,000 after giving effect to payments on the Quarterly
Payment Date.
"Xxxxxxxx Loan" means a Student Loan designated as such that is made
under the Xxxxxx X. Xxxxxxxx Student Loan Program in accordance with the
Higher Education Act.
"State" means any one of the 00 Xxxxxx xx xxx Xxxxxx Xxxxxx xx
Xxxxxxx, the trust territories of the United States, or the District of
Columbia.
"Student Loan" means an agreement to repay a disbursement of money to
or on behalf of an eligible student, evidenced by a Borrower Note and
guaranteed in accordance with the policies and procedures of the Guarantor.
-26-
"Student Loan Files" means the documents relating to the Financed
Student Loans specified in Section 2.01 of the Servicing Agreement.
"Student Loan Rate Accrual Period" means, with respect to any
Quarterly Interest Date, the Collection Period preceding such Quarterly
Payment Date.
"Subordinate Note" means a Class B Floating Rate Asset-Backed
Subordinate Note issued pursuant to the Indenture, substantially in the form
of Exhibit A-3 thereto.
"Subordinate Note Final Maturity Date" means the [o] Quarterly
Payment Date.
"Subordinate Note Pool Factor" as of the close of business on a
Quarterly Payment Date means a seven-digit decimal figure equal to the
outstanding principal balance of the Subordinate Notes divided by the original
outstanding principal balance of the Subordinate Notes. The Subordinate Note
Pool Factor will be 1.0000000 as of the Closing Date; thereafter, the
Subordinate Note Pool Factor will decline to reflect reductions in the
outstanding principal balance of the Subordinate Notes.
"Subordinate Note Rate" means, with respect to any Quarterly Payment
Date and the related Quarterly Interest Period, the interest rate per annum
(computed on the basis of the actual number of days in such Quarterly Interest
Period over a year of 360 days) equal to Three-Month LIBOR for the related
LIBOR Reset Period plus [o]%.
"Subordinate Noteholder" means the Noteholder of a Subordinate Note.
"Subordinate Noteholders' Distribution Amount" means, with respect to
any Quarterly Payment Date, the Subordinate Noteholders' Interest Distribution
Amount for such Quarterly Payment Date plus, with respect to any Quarterly
Payment Date on and after which the Senior Notes have been paid in full, the
Subordinate Noteholders' Principal Distribution Amount for such Quarterly
Payment Date.
"Subordinate Noteholders' Interest Carryover Shortfall" means, with
respect to any Quarterly Payment Date, the excess of (i) the Subordinate
Noteholders' Interest Distribution Amount on the preceding Quarterly Payment
Date over (ii) the amount of interest actually distributed to the Subordinate
Noteholders on such preceding Quarterly Payment Date, plus interest on the
amount of such excess, to the extent permitted by law, at the then current
Subordinate Note Rate from such preceding Quarterly Payment Date to the
current Quarterly Payment Date.
"Subordinate Noteholders' Interest Distribution Amount" means, with
respect to any Quarterly Payment Date, the sum of (i) the amount of interest
accrued at the Subordinate Note Rate for the related Quarterly Interest Period
on the aggregate principal amount of the Subordinate Notes outstanding on the
immediately preceding Quarterly Payment Date (after giving effect to all
principal distributions to Subordinate Noteholders on such Quarterly Payment
Date) or, in the case of the first Quarterly Payment Date, on the Closing Date
and (ii) the Subordinate Noteholders' Interest Carryover Shortfall for such
Quarterly Payment Date.
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"Subordinate Noteholders' Principal Carryover Shortfall" means, as of
the close of any Quarterly Payment Date on or after which the Senior Notes
have been paid in full, the excess of (i) the Subordinate Noteholders'
Principal Distribution Amount on such Quarterly Payment Date over (ii) the
amount of principal actually distributed to the Subordinate Noteholders on
such Quarterly Payment Date.
"Subordinate Noteholders' Principal Distribution Amount" means, with
respect to each Quarterly Payment Date on and after which the aggregate
principal amount of the Senior Notes has been paid in full, the sum of (a) the
Principal Distribution Amount for such Quarterly Payment Date (or, in the case
of the Quarterly Payment Date on which the aggregate principal balance of the
Senior Notes is paid in full, any remaining Principal Distribution Amount not
otherwise distributed to the Senior Noteholders on such Quarterly Payment
Date) and (b) the Subordinate Noteholders' Principal Carryover Shortfall as of
the close of the preceding Quarterly Payment Date; provided, however, that the
Subordinate Noteholders' Principal Distribution Amount will in no event exceed
the aggregate principal amount of the Subordinate Notes outstanding on such
date. In addition, on the Subordinate Note Final Maturity Date, the principal
required to be distributed to the Subordinate Noteholders will include the
amount required to reduce the outstanding principal amount of the Subordinate
Notes to zero.
"Subsequent Cutoff Date" means for Prefunded Loans or Serial Loans,
the date as of which any Prefunded Loan or Serial Loan is transferred to the
Issuer and the date on and after which all distributions on such loan are
property of the Issuer or the date of the related Assignment in the case of
any Qualified Substitute Student Loan.
"Subservicer" means any subservicer appointed in accordance with
Section 3.12 of the Servicing Agreement.
"Subservicing Agreement" means any agreement entered into between the
Servicer and a Subservicer containing the terms under which the Subservicer
shall service, and otherwise act with respect to, all or certain of the
Financed Student Loans.
"Substitution Adjustment Amount" has the meaning specified in Section
3.02 of the Loan Sale Agreement.
"Successor Servicer" has the meaning specified in Section 3.07(e) of
the Indenture.
"Swap Agreement" means any interest rate swap agreement, entered into
by the Trust with a Swap Counterparty document according to a 1992 ISDA Master
Agreement (or any subsequent version substantially in the same form as the
1992 version) (Multicurrency-Cross Border) and any replacement Swap Agreement
in accordance with the Basic Documents.
"Swap Counterparty" means any swap counterparty appointed in
accordance with the terms of a Swap Agreement.
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"Tax Characterization Amendment" has the meaning specified in Section
5.04 of the Trust Agreement.
"T-Xxxx Rate" means, with respect to any Quarterly Interest Period,
the weighted average of the T-Xxxx Rates for each day within the Quarterly
Interest Period and, with respect to any date within a Quarterly Interest
Period, means the weighted average per annum discount rate (expressed on a
bond equivalent basis and applied on a daily basis) for 91-day Treasury Bills
sold at the most recent 91-day Treasury Xxxx auction prior to such date as
reported by the U.S. Treasury Department. In the event that the results of the
auctions of 91-day Treasury Bills cease to be published or reported as
provided above, or that no such auction is held in a particular week, then the
"T-Xxxx Rate" in effect as a result of the last such publication or report
shall remain in effect until such time, if any, as the results of auctions of
91-day Treasury shall again be so published or reported or such auction is
held, as the case may be. The T-Xxxx Rate with respect to a Swap Agreement, if
specified in the related Swap Agreement, shall be subject to a Lock-In Period
(as defined in each Swap Agreement, if any) of six Business Days.
"Telerate Page 3750" means the display page so designated on the Dow
Xxxxx Telerate Service (or such other page as may replace that page on any
service for the purpose of displaying comparable rates or prices).
"Termination Event" has the meaning specified in each Swap Agreement,
if any.
"Termination Payment" has the meaning specified in each Swap
Agreement, if any.
"Three-Month LIBOR" means, with respect to any LIBOR Reset Period,
the London interbank offered rate for deposits in U.S. dollars having a
maturity of three months commencing on the related LIBOR Determination Date
(the "Index Maturity") which appears on Telerate Page 3750 as of 11:00 a.m.
London time, on such LIBOR Determination Date. If such rate does not appear on
Telerate Page 3750, the rate for that day will be determined on the basis of
the rates at which deposits in U.S. dollars, having the Index Maturity and in
a principal amount of not less than U.S. $1,000,000, are offered at
approximately 11:00 a.m., London time, on such LIBOR Determination Date to
prime banks in the London interbank market by the Reference Banks. The
Administrator will request the principal London office of each of such
Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that day will be the arithmetic mean of
the quotations. If fewer than two quotations are provided, the rate for that
day will be the arithmetic mean of the rates quoted by major banks in The City
of New York, selected by the Administrator, at approximately 11:00 a.m., New
York time, on such LIBOR Determination Date, for loans in U.S. dollars to
leading European banks having the Index Maturity and in a principal amount
equal to an amount of not less than U.S. $1,000,000; provided, however, that
if the banks selected as aforesaid are not quoting as mentioned in this
sentence, Three-Month LIBOR in effect for the applicable LIBOR Reset Period
will be the Three-Month LIBOR in effect for the previous LIBOR Reset Period.
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"Transfer" means any direct or indirect transfer, sale, pledge,
hypothecation or other form of assignment of any ownership interest in a Note
or, with respect Section 3.01 of the Trust Agreement, in the Trust.
"Transfer Agreement" has the meaning provided in Section 2.03 of the
Loan Sale Agreement.
"Transfer Date" means the day fixed for the transfer of any New
Loans, Serial Loans or Prefunded Loans by the Seller to the Issuer pursuant to
Section 2.02(a) of the Loan Sale Agreement.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References in any document
or instrument to specific provisions of proposed or temporary regulations
shall include analogous provisions of final Treasury Regulations or other
successor Treasury Regulations.
"Trust" means the Issuer, established pursuant to the Trust
Agreement.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form
of deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), including the Reserve Account Initial Deposit, the
Prefunding Account Closing Date Deposit and the Collection Account Closing
Date Deposit and all proceeds of the foregoing.
"Trust Accounts" has the meaning specified in Section 2(c) of the
Administration Agreement.
"Trust Agreement" means the Trust Agreement dated as of [o], among
the Depositor and the Eligible Lender Trustee.
"Trust Estate" means all right, title and interest of the Trust (or
the Eligible Lender Trustee on behalf of the Trust) in and to the property and
rights assigned to the Trust pursuant to Article II of the Loan Sale Agreement
all funds on deposit from time to time in the Trust Accounts and all other
property of the Trust from time to time, including any rights of the Eligible
Lender Trustee and the Trust pursuant to the Loan Sale Agreement, the
Servicing Agreement and the Administration Agreement.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force on the date hereof, unless otherwise specifically provided.
"Trust Swap Payment Amount" means, with respect to any Quarterly
Payment Date and any Swap Agreement, the sum of (i) if the related Swap
Agreement is still in effect, the related Net Trust Swap Payment for such
Quarterly Payment Date and (ii) the related Net Trust Swap Payment Carryover
Shortfall for such Quarterly Payment Date; provided, however, that Termination
Payments (other than in respect of clauses (i) and (ii) above) shall not be
deemed to be part of the Trust Swap Payment Amount.
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"Trust Swap Receipt Amount" means, with respect to any Quarterly
Payment Date and any Swap Agreement, the sum of (i) if the related Swap
Agreement is still in effect, the related Net Trust Swap Receipt for such
Quarterly Payment Date and (ii) the related Net Trust Swap Receipt Carryover
Shortfall for such Quarterly Payment Date.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from
time to time.
"United States Person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or
an estate whose income is subject to United States federal income tax
regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of the trust and
one or more United States fiduciaries have the authority to control all
substantial decisions of the trust.
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